While citizens in the other 49 states celebrate the 13th annual national Sunshine Week from March 11-17, Michigan residents 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 Michigan’s Freedom of Information Act. In 1986, then-Attorney General Frank Kelley issued an opinion that the Michigan Legislature also is exempt from FOIA. Current Attorney General Bill Schuette’s office recently reconfirmed that opinion.
It means Michigan’s citizens here have no right to request and obtain records from their governor and lieutenant governor (a critical issue as the Flint water debacle unfolded) or their elected representatives.
A series of open records bills that would put Michigan in sync with the rest of the country are buried, once again, in the state Senate Government Operations Committee through the actions of Senate Majority Leader Meekhof, R-Grand Haven.
Despite unanimous bipartisan support in the House for the Legislative Open Records Act spelled out in House Bills 4148-4157, Sen. 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. The net result is: the actions of our elected state officials are none of the people’s business.
The Michigan Supreme Court summarily exempted itself from FOIA’s requirements when the law was passed in 1976. The high court ruled that FOIA’s mandates violated the separation of powers of the three branches of government, and that the legislative and executive branches could not compel the judicial branch to be covered by FOIA. So now Michigan citizens have no way of making the governor, lieutenant governor, legislators or justices respond to FOIA requests. To be fair, courts in other states similarly opted out.
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 FOIAs and plenty of them, as we at the Michigan Coalition for Open Government know well.
Our FOIA is not perfect. Improvements are needed, and when changes have been made in the past, some have unfortunately weakened public access. High fees are still an issue for citizens seeking public records. A previous 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 meant the higher paid attorney, police chief, superintendent or mayor became that sole individual who could provide the records and that significantly increased 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 FOI request within a maximum of 15 business days. Within that time period, they must respond by granting or denying the request all or in part. However, there is no deadline for when those records must actually be provided. This is a loophole that some public bodies already have used to slow down turning over records. Michigan State University played this game initially with FOIA requests by media over the Larry Nassar case. Flint requesters also met, at times, with similar delays.
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 should earn another F in the next survey if lawmakers don’t pass the Legislative Open Records Act and address other accountability issues like requiring disclosure of legislators’s personal finances. Michigan is one of just two states (the other is Idaho) that lacks this tool. It’s a requirements for Congress members, state and local officials in other states. Bills to correct this have stalled repeatedly in Michigan.
Senator Meekhof’s is term limited this session, so he will be out of office next session. The hope is that, for 2019-20, Michigan’s representatives will reintroduce the Legislative Open Records Act bills, and senators will join the effort to make themselves, the governor and the lieutenant governor subject to FOIA, and that the new governor signs these vital transparency bills into law.
By Jane Briggs-Bunting, MiCOG board member