Susan J. Demas: Open the Legislature and governor up to FOIA because we’re #DoneWaiting

March 4, 2019 11:14 am

Michigan Capitol | Susan J. Demas

If you’d like to find out what key politicians are really up to in Michigan, good luck.

Our campaign finance laws are a joke. And Michigan ranks dead last for government transparency and accountability, according to the Center for Public Integrity.  

We’re also one of only two states in the country to shield both the Legislature and governor’s office from our Freedom of Information Act (FOIA).

That needs to change.

There have been several proposals out there over the years, but the simplest one is just to add the governor and Legislature to our FOIA law.

It’s pretty odd that you can unearth plenty of information from your township board on a questionable new development. But if your state representative starts to play a role, you’re out of luck. FOIA holds no power at the state legislative level.

Flint | Susan J. Demas

For years, leaders dismissed our out-of-date open records law as “inside baseball.” The Flint water crisis changed that, however. Citizens couldn’t get basic information about water safety for months. The biggest question was what former Gov. Rick Snyder and his office knew about the health catastrophe — and they, of course, weren’t subject to FOIA.

It took the harsh glare of unrelenting national and international media attention and serious pressure from citizens and good-government groups for Snyder to finally release his emails.

It just shouldn’t be such a monumental fight to get critical information.

The good news is that several lawmakers recognize that. There’s a bipartisan package, House Bills 40074016, that’s expected to pass quickly, probably in time for the high journalist holiday known as Sunshine Week. (The idea is to let the sun shine in on the inner-workings of government, get it?)

As I’ve written before, I have no issue with the first part of the package which applies FOIA to the governor’s office with a few exceptions. Everyone — including current Gov. Gretchen Whitmer — seems to think this is a fine idea.

Gov. Gretchen Whitmer at the Michigan Press Association conference in Grand Rapids, Feb. 1, 2019 | Nick Manes

Whitmer already signed an executive directive last month at the Michigan Press Association annual luncheon designed to cut down fees and wait times for FOIA requests (I should note that the former has not seemed to help the Advance with our efforts, alas).

But while many were disappointed that the Democrat didn’t just open her office up to FOIA, that probably would have killed any momentum for reform.

Think about it. That would put the Legislature — which is run by Republicans — at a huge tactical advantage. Like any citizen, legislators would now have access to most of the governor’s communications. So would they decide to go forward with legislation opening their offices up to the public?

You’d hope so. But given the complicated and, at times, convoluted bills they’ve designed for the Legislature, I have my doubts.

Let’s start with the fact that despite what you may have heard, the Legislature still won’t be subject to FOIA. If you didn’t know that, don’t worry. I actually had to correct another reporter on that point last week.

Michigan Capitol | Susan J. Demas

Most of the 10-bill package sets up a new process called the Legislative Open Records Act (LORA), which comes complete with a brand-new bureaucratic body.

We’re told this is necessary because of the speech or debate clause in Michigan’s Constitution. That’s present in 42 other state constitutions, and yet Michigan is one of only two states which exempts the governor and Legislature from FOIA.

Nonetheless, proponents argue that simply opening up the Legislature to FOIA would get challenged in court right away, so the LORA is the best way to let the sun shine in sooner.

It stands to reason, however, that LORA will land in court, as well — as many new laws do. Any number of dark money outfits that oppose government transparency on principle could take action.

Another aspect that supporters tout is that individual legislators’ offices don’t make the decision on what information gets released, so the public should be able to get records quicker.

But it’s the appeals process that really concerns me. The courts are the last resort for journalists and citizens who seek information or want to bring down exorbitant fees. LORA removes the judiciary from the process, which would now completely be housed in the legislative branch.

So if you’re denied information or slapped with a ridiculous $10,000 fee, it’s up to the administrator of the Legislative Council, which is composed of legislators appointed by House Speaker Lee Chatfield (R-Levering) and Senate Majority Leader Mike Shirkey (R-Clarklake). Oh, and the administrator is an at-will employee.

That’s some self-policing right there. It’s not terribly different than legislators drawing their own districts, which is one reason why Proposal 2 passed last year. People wanted to take that power out of lawmakers’ hands and give it to an independent commission.

And here’s another concern. Let’s say you have another lovely scenario of House members abusing their offices, like lovebirds Cindy Gamrat and Todd Courser did back in 2015. Former Speaker Kevin Cotter (R-Midland) came under fire for his handling of the matter.

Would we be able to find out legislative leaders’ role in serious scandals under LORA any more than we do now? As a cynical journalist, I have my doubts when it’s up to an administrator who reports to leadership.   

Cindy Gamrat (left) and Todd Courser (right)

Like most of the lawmakers crafting LORA, I’m not a lawyer. I’m just a nosy reporter who’s been waiting for action on FOIA since I got my first job in Michigan 15 years ago.

I still believe expanding the current law is the simplest and best solution.

I’m just not a huge fan of creating large bureaucracies and special rules for politicians. And if LORA turns out to be toothless or hopelessly flawed, I’ve been in Lansing long enough to know that substantial fixes probably won’t be made anytime soon. Legislators will have nabbed their glowing headlines, so any momentum for real transparency will be gone.

Last year, Democrat Abdul El-Sayed made a splash in the gubernatorial race with his #DoneWaiting campaign. He was tired of the sedate pace of change and half-a-loaf solutions.

We’ve been waiting decades for better open-records laws in Michigan. We have a governor who fully supports it. Now’s the time to go big.

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Susan J. Demas

Susan J. Demas is a 23-year journalism veteran and one of the state’s foremost experts on Michigan politics, appearing on C-SPAN, MSNBC, CNN, NPR and WKAR-TV’s “Off the Record.” In addition to serving as Editor-in-Chief, she is the Advance’s chief columnist, writing on women, LGBTQ people, the state budget, the economy and more. For almost five years, Susan was the Editor and Publisher of Inside Michigan Politics, the most-cited political newsletter in the state. Susan’s award-winning political analysis has run in more than 100 national, international and regional media outlets, including the Guardian U.K., NBC News, the New York Times, the Detroit News and MLive.