Column: Strengthen our FOIA laws

Jane Briggs-Bunting

While citizens in the other 49 states celebrate the 13th annual national Sunshine Week this week, Michigan residents live in a state that remains an outlier in transparency and accountability under its freedom of information laws.

Michigan is the only state in the nation in which state law exempts the governor and lieutenant governor from the requirements of the state Freedom of Information Act. In 1986, then-Attorney General Frank Kelley issued an opinion that the Michigan Legislature also is exempt from FOIA. Attorney General Bill Schuette’s office recently reconfirmed that opinion. The Michigan Supreme Court summarily exempted itself from FOIA’s requirements when the law was passed in 1976.

The law and those opinions and decisions mean Michigan’s citizens have no right to request and obtain records from their governor and lieutenant governor (a critical issue as the Flint water debacle unfolded) their elected state lawmakers or their Supreme Court justices.

A series of open records bills that would put Michigan in sync with the rest of the country by applying Michigan’s FOIA to the governor, lieutenant governor and state lawmakers are buried, once again, in the state Senate Government Operations Committee through the actions of Senate Majority Leader Arlan Meekhof.

Despite unanimous bipartisan support in the House for the Legislative Open Records Act, Meekhof will not move the bills out of the committee that he chairs or even allow a vote within the committee.

City councils, township and school boards, local and county governments are all required under FOIA to provide public records — except in the case of a limited number of exemptions — to people who request them. But what is required of local public officials is not required of Michigan’s state elected officials, essentially making the actions of state public officials none of the people’s business.

Meekhof told a group of journalists last year that only they care about FOIA. Journalists do file many FOIA requests as part of their job to watchdog government at all levels. But everyday citizens also file plenty of FOIAs, as we at the Michigan Coalition for Open Government know well.

Michigan’s FOIA is not perfect. Some past changes unfortunately have weakened public access. High fees are still an issue for citizens seeking public records. One change made the cost of accessing public records not, as originally required, the salary of the “lowest paid person” within a public body but the “lowest paid person capable of searching for, locating, and examining the public records in the particular instance.” At many public bodies that now means the higher paid attorney, police chief, superintendent or mayor is the sole individual who can provide the records, significantly increasing the fess that could be charged.

Another major loophole is in delivering records sought from public bodies. By statute, public officials are required to respond to a FOIA request within 15 business days. However, there is no deadline for when those records must actually be provided. This is a loophole some public bodies already have used to slow down turning over records. Michigan State University played this game initially with FOIA requests from media over the Larry Nassar case. Flint requesters met, at times, with similar delays when seeking answers about the Flint water crisis.

The bills making up the Legislative Open Records Act would be a major improvement making state elected officials more accountable to the people who elected them. The current lack of accountability and transparency earned Michigan an “F” grade in 2015 in the Center for Public Integrity’s survey of all 50 states. Michigan also is one of just two states (the other is Idaho) that doesn’t require lawmakers to disclose their personal finances. Bills to correct this have stalled repeatedly in Michigan.

This is Meekhof’s last term due to term limits. The hope is next session senators will join their House colleagues and make themselves, the governor and the lieutenant subject to FOIA by enacting the Legislative Open Records Act, and that the new governor signs these vital transparency bills into law.

Jane Briggs-Bunting is a board member and founding president of the Michigan Coalition for Open Government.