Public record plan sees light in Sunshine Week

Jonathan Oosting
The Detroit News
Excavators tear-up the parking lot Monday, August 14, 2017, behind the  Michigan Capitol building where wells will be drilled to provide geothermal heating and cooling for the building.

Lansing — A Michigan House panel on Tuesday advanced bipartisan legislation that would open up the Legislature and governor’s office to some — but not all — public records requests.

The 10-bill package, now backed by Gov. Gretchen Whitmer and heading to the House floor, would subject the executive office to the Michigan Freedom of Information Act and create a new Legislative Open Records Act for lawmakers.

But unlike local government officials, any communication between a constituent and the governor or their lawmakers would be exempt from public disclosure unless that constituent was a registered lobbyist. And under the proposed Legislative Open Records Act, citizens could not pursue judicial review if their public records requests are denied.  

Still, lawmakers on both sides of the aisle cheered the advancing legislation, hailing it as an important step toward improving Michigan’s last-place ranking for government transparency and ethics, a dubious distinction awarded to the state in 2015 by the Center for Public Integrity.

“I think this would move us back up into the, you know, mid-range of having transparency,” said Rep. Jason Sheppard, a Temperance Republican who chairs the House Government Operations Committee.

“Personally, I think it’s something that needed to be done. It’s a good priority to work on to make sure the public is getting everything that they need out of us in a timely manner and also not handcuffing us so badly with too much where we can’t work with our constituents the way we want to.

“I think it struck a very good balance,” Sheppard added.

The full House could vote on the legislation later this week — which would coincide with a national focus on government transparency known as Sunshine Week — or later this month.

Michigan is one of two states that fully exempts to governor’s office from public records requests and one of eight states that exempts the Legislature.

Whitmer has advocated for expansion of the Freedom of Information act but had expressed concerns with previous versions of the package, including the lack of judicial review for legislative denials of public records request. She offered support for the package on Tuesday “in the spirit of compromise,” deputy legislative affairs director Jasmine Brown-Moreland told the panel.

House Minority Leader Christine Greig, D-Farmington Hills, said the plan was improved in committee by extending a record retention policy prohibiting state lawmakers from destroying documents for two years, up from 30 days proposed in the original legislation.

“If we are really trying to open up the communications to the public, 30 days is not long enough,” she said. “So I was really happy to see that extended to two years, to really have the public have that option of getting the information.”

The proposal would give the public access to communications about the process of a bill being introduced, lawmaker calendars so the public can see who they are meeting with, announcements sent through the Legislature and other documents, Greig said.

“We’ve got to move out of that 50th position for transparency and accountability, and I think this is a great first step,” she said.

The full Michigan House approved similar legislation in 2018 but the plan did not see a vote in the upper chamber, where it was opposed by then-Senate Majority Leader Arlan Meekhof, R-West Olive.

New Senate Majority Leader Mike Shirkey, R-Clarklake, has said he is open to discussing the public records proposal but has expressed concerns about “unintended consequences” and the potential to discourage negotiation in the Legislature.

But supporters see new dynamics that could push the measure over the top this session. House Speaker Lee Chatfield, R-Levering, was a leading advocate last session and other lawmakers who championed the issue in the lower chamber are now in the Senate, including Sen. Jeremy Moss, D-Southfield.

“I think we have the best chance that we’ve had in five years,” Greig said.

Moss testified Tuesday in support of a separate transparency proposal before the Senate Oversight Committee that would amend the Michigan Constitution to ensure all meetings of publicly funded university boards are open to the public, not just “formal” gatherings.

University board members have faced scrutiny — and lawsuits — for discussing important issues behind closed doors following a 1999 Michigan Supreme Court decision in a case involving a presidential search.

Because there is no definition for what qualifies as a formal meeting, sponsoring Sen. Ed McBroom, R-Vulcan, said universities that spend taxpayer funds have essentially been “self-policing” when it comes to transparency rules that other government institutions must strictly adhere to.