After a long logjam in the Senate, lawmakers hopeful of breakthrough in open-records reforms

FOIA reform bills get favorable reception from Senate panel

By: - September 16, 2020 10:15 am

Michigan Capitol | Susan J. Demas

A bill package discussed by a Senate committee Tuesday would not just improve Michigan’s subpar Freedom of Information Act (FOIA) laws, but make them among the best in the country, according to sponsors state Sens. Jeremy Moss (D-Southfield) and Ed McBroom (R-Vulcan).

The two lawmakers have been working on legislation to add some much-needed “sunshine” to the state’s transparency laws for the last six years. The House passed its package last year, but the Senate had been reluctant to consider the bills up until now. There are 10 Senate bills and 10 House bills total.

“I believe that we can move from being one of two states in the nation that has nothing, to one of the only states in the nation that has something that actually functions and can provide that kind of openness and sunshine into the Legislature,” McBroom said during Tuesday’s hearing before the Senate Oversight Committee, which he chairs.

Senate bills 833-842 and concurrent House bills 4007-4016 would open Michigan’s executive office to FOIA, and the Legislative Open Records Act (LORA) would be established to administer requests for the state Legislature with restrictions.

Michigan is currently one of only two states whose governor and state Legislature are both exempt from FOIA, and ranks dead last for government transparency and accountability by the Center for Public Integrity.

“We’re closer than ever to finally putting this dark cloud over Michigan government aside,” Moss said.

All bills have lengthy lists of sponsors from both sides of the aisle.

Moss and McBroom both noted that many senators on the committee have already pledged their support of the bills before, and 19 total sitting senators voted for the bills while they were still serving in the state House.

Moss says he believes there is plenty of support in the Senate beyond that, too. The bills also have the backing of Attorney General Dana Nessel and Gov. Gretchen Whitmer, as well as the Michigan Department of State and the Michigan League of Conservation Voters.

Creating LORA to facilitate information requests from the state Legislature, rather than simply opening it up to FOIA, has several purposes. One is that it passes constitutional muster by adhering to the speech or debate clause in Michigan’s Constitution, Moss and McBroom argue.

Another reason is that the new bureaucratic body created to administer the act would be a third-party mediator between the citizens requesting information and the legislators’ offices being plied for information, putting a layer of nonpartisan insulation between the two.

However, some critics have argued that there’s too much bureaucracy in the package’s different setup for the Legislature.

LORA would apply to records created after Jan. 1, 2021, and only to records that are at least 15 days old. Supporters say this meant to minimize politically driven attempts to derail burgeoning legislation.

The bills would still hold some exceptions for privacy reasons, including for constituent communications and ongoing deliberations by the governor’s office. Communications about legislation prior to its final form would also be protected.

Moss told the Advance Wednesday that a big reason the bills had been roadblocked for so many years was former Senate Majority Leader Arlan Meekhof (R-West Olive), who was term-limited in 2018. Moss said Meekhof brought a lot of “toxicity” into the open records discussion and repeatedly argued that opening the state Legislature to FOIA was “invasive.”

“My philosophy is just the exact opposite — that a better product comes about when we all are on the same page, and when we all can see the pages,” Moss said.

Things changed in 2018, and Moss and McBroom met back up in the state Senate to continue their work on the legislation and Senate Majority Leader Mike Shirkey (R-Clarklake) replaced Meekhof. Shirkey is much more amenable to the FOIA and LORA bills than Meekhof had ever been, although he has not yet given a firm commitment to getting the bills on the floor, Moss said.

“[Shirkey] said at the start of this session that he’s a ‘transparency hawk,’ and I take him at his word, I really do,” Moss said. “… Sen. Shirkey’s team does need to vet this, and we are open to good ideas. We are open to amendments that improve these bills.

“Arlan Meekhof never really let Senate leadership and their team weigh in on it, so I’m gonna say I’m grateful for Sen. Shirkey for his willingness to look at this and offer feedback.”

A spokesperson for Shirkey did not immediately return a request for comment.

State Sens. Peter Lucido (R-Shelby Twp.) and Jeff Irwin (D-Ann Arbor) both spoke during Tuesday’s hearing to ask questions and challenge the legislation’s finer points, but both said they look forward to seeing the bills come to fruition.

The legislation was not voted out of committee. Moss said he and McBroom are still eager to receive input that may improve the bills and tighten any loopholes that may exist, as they view the legislation as “a floor, not a ceiling.”

“I know that the priority right now is the budget, so that’s why we really are holding October as a timeframe to re-examine what the timeline will be [for the legislation],” Moss said.

Once the bills get further down the road, Moss says he is confident that the numbers are on their side for a favorable Senate vote.

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).