House OKs bills giving auditor general access to confidential records

Beth LeBlanc
The Detroit News

Lansing — In a nearly unanimous vote, the Michigan House approved legislation Wednesday that would guarantee the auditor general access to confidential information related to an investigation, legislation vetoed last year by then-Gov. Rick Snyder.

Auditor general investigations, which keep tabs on state government operations, have been slowed in the past by state departments concerned about handing over documents they consider confidential, said the legislation's sponsor Rep. Steve Johnson, R-Wayland.

Michigan Gov. Gretchen Whitmer signs civil asset forfeiture reform laws on May 9, 2019. It is unclear whether Whitmer would sign bills giving the state auditor general access to confidential information in state departments.

In 2018, the auditor general went so far as to sue the Michigan Department of Health and Human Services for access to adoption records needed for a performance audit. 

The bills passed 103-3 in the House Wednesday would ensure “checks and balances” remain in place between the legislative and executive branches, Johnson said.

“One of the checks that the legislative branch has on the executive branch is constitutionally we have an auditor general and they’re able to go through and make sure that the executive branch is doing their job correctly,” Johnson said. “In order to do that, they need access to all their information, all their files.”

In 1993, then-Attorney General Frank Kelley opined that the auditor general could review confidential information from the Michigan Employment Security Commission, but the auditor general would then be bound by the same confidentiality rules governing the commission's handling of the information.

Similar to that opinion, the House bills would allow the auditor general to investigate electronically stored and confidential information in each state agency and include language holding the auditor general liable if the office divulges the confidential information.

Snyder called the legislation “an unconstitutional overreach that would blur the separation between the legislative and other branches” in his December veto letter.

The proposal would give the legislatively appointed auditor general "unrestricted access to all executive functions, whether it was conducting an audit of those functions or not," he wrote. It could result in "inadvertent disclosures of personally identifying, protected health, or other privileged or confidential information,” and potentially expose that information to data security threats.

The legislation had nearly unanimous support last year when it passed the House 107-2 and the Senate 37-0.

Johnson said Snyder was “dead wrong” in his arguments regarding the separation of powers and said the separation was why the Legislature needed the tool. The executive branch has its own form of checks in the form of vetoes and the leeway it has in implementing legislatively-enacted laws, Johnson said.

The legislation's bipartisan sponsorship — Democratic Rep. David LaGrand is a sponsor of one of bills — could help it earn Democratic Gov. Gretchen Whitmer's signature this time around, Johnson said.

“I think Gov. Whitmer has been a very pro-government transparency governor so we’re hoping that she continues that record on this bill,” he said.

But Whitmer's office indicated a veto is likely unless the legislation is amended.

"As written, the bills have serious problems — constitutional and otherwise — and the governor would not sign them," Whitmer spokesman Zack Pohl said in a statement.  

Some of the confidential information that could be at stake are adoption and foster care records, health records, or personally identifiable information. Confidentiality excuses surrounding those items could be used as an out by problematic departments facing an uncomplimentary audit, Johnson said.

“You have different departments that have systemic issues that need to be fixed,” Johnson said. “We don’t know about it because we’re not getting all the information on it.”

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