Whitmer issues transparency directive amid public records push

Jonathan Oosting
The Detroit News
Gov. Gretchen Whitmer

Lansing — Gov. Gretchen Whitmer on Friday signed an executive directive she said will close “loopholes” in Michigan’s Freedom of Information and Open Meetings acts by imposing new requirements on state departments and agencies, beginning March 10.

Whitmer’s directive requires state agencies to respond to public records request by the date provided in any "best estimate" they must give. Former Attorney General Bill Schuette, a Republican whom Whitmer defeated in the gubernatorial election, said in a 2017 legal opinion that public bodies are not bound by those estimates.

The governor’s directive also prohibits the routine use of extensions when responding to public records requests, ensures notices are issued for delays and requires each department or agency to designate a new “transparency liaison” to ensure compliance.

“State government must be open, transparent and accountable to taxpayers,” Whitmer said in a statement. “I’m signing this executive directive to ensure that Michiganders have open access to state records and meetings, and to help the public navigate their state government. This is an important step to infuse integrity in governance and earn back public trust.”

Whitmer's directive does not address the most glaring loophole in Michigan’s Freedom of Information Act: Longstanding exemptions for the governor’s office and state Legislature to public record requirements that state departments and local governments are required to follow.

The East Lansing Democrat supports expanding the Freedom of Information Act, but her office has continued to reject requests not required under existing state law, including a Jan. 7 work calendar request by a Republican group.

Lawmakers in the Michigan House have proposed and are expected to advance bipartisan legislation that would subject the Legislature and governor’s office to public records requests, but it’s not yet clear if the GOP-led Senate will support the measure.

Whitmer’s directive seeks to strengthen application of the Michigan Open Meetings Act by prohibiting state department officials from texting or using other forms of electronic communication to privately discuss matters during a public forum.

Using electronic communications that can’t be heard by the public is “contrary to the core purpose of the Open Meetings Act — the promotion of openness in government,” according to the directive, which also encourages departments and agencies to live stream state board or commission meetings and make agendas available online.

For public records requests, the directive prohibits state departments from automatically requesting an allowable extension and encourages them to respond within the time frame of any best estimate they provide.

If a request is denied, the department or agency must provide the person who requested the information with a “full explanation in plain language,” rather than simply citing state code sections.

State departments already employ a FOIA coordinator, and Whitmer’s directive requires each to also designate a  “transparency liaison” to assist members of the public requesting information or seeking to participate in a public meeting.

The liaison is also expected to “advocate for the disclosure of public records quickly and in a cost-efficient manner” and is required to report any violation of Whitmer’s directive to the governor’s chief compliance officer.

Attorney General Dana Nessel and Secretary of State Jocelyn Benson, fellow Democrats whose offices are subject to the Freedom of Information Act, praised Whitmer’s directive and indicated they intend to follow suit

“Our residents should be able to count on their state government to be open, accessible, accountable and transparent,” Nessel said in a statement, indicating she plans to quickly designate a transparency liaison in the attorney general’s department.

Benson said Whitmer’s directive “sets the right tone” and she looks forward to “working with the Legislature on additional measures that can be placed into law.”