Gov. Gretchen Whitmer is right.
On the campaign trail and in her first State of the State address, Gov. Whitmer has said Michigan lags behind other states in the area of government transparency. In particular, the state’s Freedom of Information Act, which allows members of the public to see government documents, does not apply to the governor or the state Legislature. It’s time to change the law.
The public records law states why public records are important: “[A]ll persons … are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees.”
FOIA’s omission of the governor was unfortunately brought to light in the Flint water crisis. The crisis prompted questions about the decision to switch water sources, the water treatment procedures in Flint, the testing protocols and the official response to public health concerns: Who knew? What did they learn and when did they learn it? What actions were taken as a result? In particular, what role did then-Gov. Rick Snyder play in handling the matter? The law did not provide quick access to his records (although, to his credit, Gov. Snyder voluntarily released documents and emails).
Political will seems to be aligned for Gov. Whitmer and legislative leaders to finally correct that.
In past sessions, House Speaker Lee Chatfield has twice voted for bills that put the governor under FOIA law and create a companion Legislative Open Records Act. (Both bills died in the Senate, however.) Newly installed Senate Majority Leader Mike Shirkey championed several improvements to FOIA in 2014 when he was in the House.
Public records law should apply to both the governor and Legislature, but here are three more ideas that could improve transparency in Michigan:
• Crack down on Open Meetings Act violations. The Open Meetings Act requires that all decisions of public bodies be made at a meeting open to the public. The law also provides notice and agenda requirements to prevent last-minute meetings that avoid public participation. Unfortunately, it lacks teeth. A citizen can pursue a lawsuit to invalidate the improperly adopted decision, but no penalties are imposed on the public body. (A penalty of up to $500 can be imposed on a public official who “intentionally” violates the law.)
• Address exorbitant search fees. If a person requests public records, FOIA allows a public agency to charge a copying fee, along with a fee for the search, examination and review of records. Agency search fees can be so large as to discourage the request from moving forward. For example, the State Police once sent the Mackinac Center a FOIA bill for $6.8 million. The search fees alone totaled more than $6 million!
• Impose an actual deadline on FOIA responses. The law states that agencies have five days to respond to a request for records, and they can then invoke a 10-day extension. Some agencies act as if merely acknowledging the request satisfies the deadline. In 2017, then-Attorney General Bill Schuette issued an opinion validating this reading of the law. Rep. Gary Glenn introduced a bill that would have imposed a clear deadline for producing records, but the bill died in committee.
Over the next two years, bipartisan accomplishments may be difficult to come by with Michigan’s shared government. Shining a light on government operations is one thing the state’s leaders can, and should, get done.
Michael J. Reitz is executive vice president of the Mackinac Center for Public Policy in Midland. He also serves as president of the Michigan Coalition for Open Government.