Transparency bills offer sunshine, face opposition

Jonathan Oosting, and Michael Gerstein

Lansing — Michigan legislators, the governor and lieutenant governor would be subject to public records requests under advancing legislation that would lift sweeping exemptions allowed by just one other state.

The bipartisan 11-bill transparency package cleared the House Competitiveness Committee on Thursday in a series of unanimous votes and is lined up for floor consideration next week during “sunshine week,” an annual national celebration of access to public information.

But the proposal faces a looming obstacle in the Michigan Senate, where Majority Leader Arlan Meekhof held up similar legislation last session and has questioned the value of allowing the public to view communications between legislators and lobbyists.

The potential law would “be a tool for citizens and journalists to hold publicly elected officials accountable, and shine a light on how the people’s government operates,” said sponsoring Rep. Jeremy Moss, D-Southfield, who studied journalism and political science at Michigan State University.

The legislation, generally supported by the Michigan Press Association, would subject the governor’s office to the Freedom of Information Act that currently applies to local elected officials across the state.

It would also create a new Legislative Open Records Act, a separation that is necessary because of past legal decisions that the current law does not apply to legislators, said sponsoring Rep. Lee Chatfield, R-Levering.

“If we subjected ourselves to FOIA, we would be subjecting ourselves to a law that has no teeth in it and it could not be enforced,” said Chatfield, who chairs the Competitiveness Committee and serves as speaker pro-tem in the Republican-led House.

The new law would create several specific exemptions for the Legislature and governor’s office. For instance, communications between constituents and their legislators would be immune from public records requests — unless the constituent was a registered lobbyist.

Moss said the exemption is designed to protect private issues a citizen may raise when seeking assistance from their legislator, such as job loss or financial struggles.

“There is an expectation of privacy when you contact your state representative with a dire constituent issue that we have to uphold,” Moss said. “… Any and all communications between a lobbyist and a legislator is absolutely exposed under this act.”

Meekhof, R-West Olive, said Thursday he had not reviewed changes made in the House committee but would take a closer look at the legislation when it reaches the Senate. But he questioned what the legislation would accomplish.

“Every piece of tax dollar that’s talked about is debated openly in public meetings,” he said. “I don’t know what more there is to want. We give all the information.”

Asked if communications between lobbyists and legislators should be accessible to the public, Meekhof turned the question back on reporters.

“Why should they be? Do you think we’re doing something wrong?” he said.

He continued: “I mean, we’re talking with the people they represent, groups of people that have ideas for legislation that may or may not come to fruition, but those are ideas and concepts … When it’s ready for public purview, it’s debated publicly in a meeting, in a committee.”

While most bills are subject to committee hearings before floor votes, there have been notable exceptions in recent years.

In late 2015, for instance, a 12-page bill to amend the Michigan Campaign Finance Act was heavily amended on the House floor, growing to 53 pages under a substitute version that added broad, new language restricting local governments from discussing ballot measures and prohibiting fundraising payroll deductions by unions.

The House and Senate approved the modified bill that same night, with no committee testimony and little floor debate. Some senators later acknowledged they did not understand the full scope of the bill they had voted for and urged Gov. Rick Snyder to veto the measure. Two provisions were later struck down by courts.

The new House proposal would shield legislative documents from public records requests for 15 days, a provision Chatfield and Moss said would prevent political parties from using the law against each other by requesting documents “for nefarious reasons” during the lawmaking process.

“There will be access to those records,” said Chatfield, “but the 15-day waiting period just ensures that what we’re trying to do here is about transparency for the people, not for political gain. Our House rules would call these dilatory tactics, things that could stall the process.”

The bipartisan legislation has united groups that typically find themselves on opposite ends of the political spectrum. It is supported by the free-market Mackinac Center for Public Policy and the American Civil Liberties Union of Michigan.

“Government transparency is critical to democracy,” said ACLU of Michigan policy counsel Kimberly Buddin.

Michigan and Massachusetts are the only two states in the nation that completely exempt both the governor’s office and Legislature from public records laws, she said. Most states do not exempt either.

“These protective laws really created a culture of secrecy and a government that operates with very little expectation of public oversight,” Buddin told legislators in a Wednesday hearing.

The Flint water contamination crisis has renewed interest in reforming Michigan’s restrictive transparency laws. While Snyder eventually released tens of thousands of pages of administration emails related to the crisis, the documents were not available until more than a year after Flint residents started complaining about water quality, color and smell.

“Flint is what happens when our elected officials can pick and choose when, how and what public information is actually disclosed to the public,” Buddin said.

The legislation also proposes several public records exemptions for the governor or lieutenant governor, including deliberative materials related to potential appointments, judicial suspensions, State of the State speeches, criminal sentencing commutations and budget recommendations.

Legislators negotiated those exemptions last year with the governor’s office, according to Chatfield and Moss, who called them “very reasonable.”

In the case of State of the State addresses or budget presentations, “the final product is going to be presented anyway and publicly scrutinized.”

The House committee tweaked the legislation earlier this week, removing an exemption for communications that could have been considered “privileged” under House or Senate rules, a provision that had been a concern for the Michigan Press Association.

The bills would create new paid “coordinator” positions to process public records requests and would likely increase costs for the Legislature “by an unknown amount,” according to the non-partisan House Fiscal Agency.

“I really don’t think we can put a price tag on transparency,” Chatfield said. “I think this is something we need to do to more forward and rebuild trust with the people.”