By Jane Briggs-Bunting
As citizens around the country celebrate the 13th annual national Sunshine Week from March 11-17, Michigan residents have nothing to cheer.
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 Arlan 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.
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.
This makes Michigan a FOIA outlier among the states. It means the 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.
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 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.
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. High fees are still an issue for citizens seeking public records. 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 step forward toward making state elected officials more accountable. 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.
This is Senator Meekhof’s last term due to term limits. The hope is that, in the next session, senators will join their House colleagues and make themselves, the governor and his lieutenant subject to FOIA, and that the new governor signs the bills into law.
The Michigan Coalition for Open Government is a tax exempt, Michigan nonprofit corporation founded to promote and protect transparency and accountability in government at the local, state and federal levels. Jane Briggs-Bunting is a board member and founding president of MiCOG.