Michigan’s House of Representative on Wednesday overwhelmingly passed the Legislative Open Records Act that amends and expands the state’s FOIA to correct omissions that have made Michigan an outlier among other states across the nation.
Under the proposed legislation (HB 5469-5478), the Governor and Lieutenant Governor will now be covered by the FOIA requirement subject to existing exemptions in the FOIA and two additional exemptions. One would temporarily protect personnel decision for hiring and firing but only until the matter was resolved. The second, would keep clemency decision and presumably those files closed to public scrutiny. Michigan is the only state to statutorily exempt its executive from FOI requirements.
If the proposed bills are pass by the Senate, the Legislature would also be subject to FOIA, as well. Though the original 1976 statute did not exclude the legislature from FOIA requirements, a 1986 Attorney General Opinion did. Though that Opinion was just that, an opinion, the Legislature has followed it claiming it was exempt from FOIA.
Most of the language in the LORA bills mirror the FOIA, but there are significant weaknesses including no possibility of judicial review if a request for records is denied and a 15 day waiting period on releasing public records then an additional five business day and 10 business day extensions would be tacked on, as well.
Kudos to Rep. Ed McBroom for leading the bipartisan effort on this series of bills. We applaud the other legislators involved in this effort: Jeremy Moss, Lee Chatfield, John Kivela, Michael Webber, Jim Runestad, Julie Plawecki, Scott Dianda, Marilyn Lane, Jon Hoadley, Kristy Pagan, David Rutledge, Jeff Irwin, Stephanie Chang, Tom Barrett, Pat Somerville, Bill LaVoy, Martin Howrylak, George Darany, Winnie Brinks, Holly Hughes, David LaGrand, John Bizon,Gary Glenn, Tim Greimel, Lisa Lyons, Sarah Roberts, Marcia Hovey-Wright, Laura Cox, Robert Wittenberg, Amanda Price, Jim Townsend, Jim Tedder, Thomas Hooker, Gary Howell, Phil Phelps, and Peter Lucido.
HB 5488 which would create an Open Government Commission with some power to overrule denial decisions by public bodies and address fees is still sitting since March in the Oversight and Ethics Committee and likely to die there. HB 5488, as drafted, includes language that would give the Commission the authority to make binding decision, if requested, on complaints it receives on: the validity of exemptions claimed by the public body, on fees charged, and the records that need to be provided. It also empowers the commission to make recommendations for changes in the law. This pro bono appeal process would assist citizens who cannot afford the cost of filing a lawsuit in the circuit court.
We urge the Committee and the House as a whole to move this bill out of committee and vote to approve it. this legislative session.
Sources say the Senate leadership is not in favor of the LORA. We urge the Senate to take up this legislation and approve it and send it to Governor Snyder for his signature. The LORA is the most important legislative effort of 2016. It would remove the curtain of secrecy that can potentially shroud backroom deals and corruption, make legislators more accountable to their constituents and bring Michigan in line with other states.
The Michigan Coalition for Open Government is a tax exempt, Michigan nonprofit corporation founded to promote and protect transparency and accountability in the governments of the people, by the people and for the people at the local, state and federal levels. The Coalition is actively testifies at legislative hearings to support and oppose legislation that impacts government transparency, provides free, non-legal advice to citizens seeking help in drafting freedom of information requests and has joined as an amicus in appeals court cases.