Michigan ballot push aims to open governor, lawmakers to records requests

Craig Mauger
The Detroit News

Lansing — Michigan's governor and Legislature would fall under the state's open records law, ending a set of exemptions that's unlike 48 other states, under a new ballot initiative planned by the liberal group Progress Michigan.

Progress Michigan hopes to eventually gather petition signatures for the proposal, place it on the statewide ballot in 2022 and circumvent the GOP-controlled Legislature to make it law. The nonprofit organization revealed the details of the plan Tuesday morning during Sunshine Week, an annual week-long celebration of open government.

"We're tired of waiting," said Lonnie Scott, the executive director of Progress Michigan.

Flanked by  Senate Majority leader Mike Shirkey, left, and Speaker of the House Lee Chatfield Gov. Gretchen Whitmer delivers her State of the State speech.

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"This is good government," Scott added. "Fundamentally, our organization has supported real transparency and good government."

Progress Michigan didn't announce a formal date for when signature collection would begin, but Scott said this year would be used to educate the public about the proposal. The group would have to collect more than 340,000 signatures to get its language to amend the Freedom of Information Act on the ballot.

Michigan is one of only two states that exempt the governor's executive office and the state Legislature from open records requests that state departments and local governments must fulfill. Under current policy, the open records law does apply to "an agency, board, commission or council in the legislative branch of the state government."

The state House has approved proposals to change the situation in each of the last three legislative sessions. But the packages have stalled in the state Senate, where GOP leadership has voiced concerns about the bills.

From 2015 through 2018, then-Senate Majority Leader Arlan Meekhof, R-West Olive, blocked many of the plans to subject the Legislature and governor to records requests.

The Senate already puts the text of proposed bills online, holds public hearings on legislation and makes video of sessions available for the public online, and considers requests to view business leases and staff salary information, Meekhof said in 2017. He warned that lobbyists could use the reform to read his emails to advantage their clients.

Last week, the House Oversight Committee advanced a new package to the full House. The Senate Oversight Committee began considering Senate bills on Tuesday afternoon. A vote in the Senate committee is expected next week, said Sen. Jeremy Moss, D-Southfield, who has championed the legislation.

However, Scott was critical of the legislative bills, contending that they weren't strong enough.

Unlike the Progress Michigan proposal, the bills set up a separate law to guide requests for records from the House and Senate, the Legislative Open Records Act. Under the proposed act, out of concerns that the judiciary isn't able to dictate the Legislature's response to document requests, lawmakers wouldn't "create or imply a private cause of action for a violation" of the requirements.

Under the Progress Michigan proposal, the Legislature would waive legal privileges and a member of the public could seek a court ruling to compel the disclosure of a certain record that qualified for release, similar to other agencies and local governments.

Moss said he was concerned that a judge could strike down proposed provisions of the Freedom of Information Act related to the Legislature, which has happened in other states.

The House plan describes a public record as a document that's been in the possession of a public body for 15 days or more. Opponents view that language as a potential loophole to destroy records before they can be requested and released.

But there is a protection in both the House and Senate packages for documents that will eventually become public records, Moss noted.

Unlike the legislative bills, the Progress Michigan proposal would require the governor, lieutenant governor and lawmakers to publish daily lists of visitors to their offices from the previous day. The Progress Michigan proposal would also require agencies to provide requested records within 60 days.

The language of the Progress Michigan plan wouldn't be able to pass the Senate, Moss said Tuesday. The Senate package is the result of discussions among lawmakers, the Michigan Press Association, the Mackinac Center for Public Policy and the American Civil Liberties Union, he said.

"Ultimately, we share the same goals: more disclosure, more sunshine and more access to the citizens of Michigan to better vet their government," the Democratic lawmaker added.