State Sens. Jeremy Moss (D-Southfield) and Ed McBroom (R-Vulcan) testify on their legislation to extend the state’s Freedom of Information Act to the governor, lieutenant governor and the Legislature before the House Government Operations Committee on Dec. 11, 2024. | Kyle Davidson
A bipartisan effort aiming to bring both the Governor’s office and the Legislature under Michigan’s Freedom of Information Act (FOIA) is one step closer to becoming a law, with members of the House Government Operations Committee voting on Wednesday to refer the bills to the House Floor for further consideration.
Senate Bills 669 and 670, introduced by state Sens. Jeremy Moss (D-Southfield) and Ed McBroom (R-Vulcan), are the latest in a string of efforts to shine a light on Michigan’s government after years of criticism of the state’s public integrity measures. While both senators were able to move a previous effort out of the House during their time serving in the lower chamber in 2015, the effort died in the Senate.
“For us, this has been a long time coming. We’re entering into the holiday season, and as a Jew, I’ve never had the experience of, as a kid, waking up on Christmas morning. I gotta assume it feels something like this,” Moss said.
Under the current state law, the Legislature, the governor and the lieutenant governor are exempt from FOIA, however Moss and McBroom’s bills would bring an end to that exemption and require both the House speaker and Senate majority leader to designate a FOIA coordinator in each of their chambers to process public records requests.
However, those requests do come with limits, with the bills including exemptions for agencies including the House and Senate Fiscal Agencies, the Legislative Service Bureau, and the office of sergeant at arms, which provides security for the Legislature.
FOIA Exemptions for the office of the governor and lieutenant governor include:
- Appointments to departments, state agencies, commissions, councils or to fill a vacancy on a court. The exemption no longer applies after an individual has been appointed to one of these positions save for information including their applications and letters of recommendation or references
- Decisions to remove or suspend a public official or judge, which no longer applies after that individual has been removed or suspended
- Decisions to grant or deny a reprieve, pardon or commutation
- Budget recommendations or reductions in expenditures
- Messages or recommendations to the legislature
- Information related to the executive residence
- Documents subject to executive privilege
- Documents that could impact the security of the governor or lieutenant governor
The governor’s and lieutenant governor’s office and the Legislature are also exempt from disclosing any records of communications between themselves and a constituent who is not a registered lobbyist, alongside a number of other exemptions, including:
- Their personal phone numbers
- Information on an internal investigation
- Records or information tied to a civil action for which either entity is a party, with the exemption expiring when the claim has been adjudicated or settled
- Records “created, prepared, owned, used, in the possession of, or retained” by either entity for less than 30 days
- Records “created, prepared, owned, used, in the possession of, or retained” by either entity prior to the bills taking effect
- Records created or prepared by the governor, the lieutenant governor, an employee of the executive office of the governor or lieutenant governor, a legislator or an employee of a state legislative public body, that relate to advice, opinions or recommendations about public policy or district work
If passed, the bills would take effect on Jan. 1, 2027, and would not apply to records created or retained from before the bill’s effective date.
While the Committee adopted a substitute version of Senate Bill 670, Moss said the new version contained one minor tweak: While the version passed by the Senate notes any information exempt from FOIA through another law would also be exempt through this bill, the substitute adds language to ensure information that is exempt from FOIA through another law or regulation would also be exempt.
Michigan’s policies on transparency and accountability have long lagged the nation, with Michigan Secretary of State Jocelyn Benson noting in a statement that Michigan is one of two states that exempts the Governor from FOIA and one of eight states where the Legislature is explicitly exempt.
The Center for Public Integrity previously rated Michigan dead last in the nation in a 2015 report evaluating systems to deter corruption, with Michigan failing in 10 out of 13 categories including public access to information, executive accountability, and legislative accountability.
While making the case for the bills, McBroom highlighted two key areas where individuals could hold their elected officials accountable: through their calendars and their communications on behalf of constituents.
“If we can expose how many times certain people visit the White House and sleep in the Lincoln Bedroom, I don’t really see why I can’t also tell people how many times AT& T or a university or a certain constituent has come to my office, I don’t think that should be a problem for any of us to be able to show that,” McBroom said.
McBroom also shared an example that if a constituent reaches out to his office about an issue with the Michigan Department of Natural Resources (DNR), and he promises to reach out to the DNR to address that issue, the constituent should be able to FOIA to ensure he followed through with that request.
The five-member committee unanimously voted to send both bills to the House floor for further consideration. Should the bills pass, the Senate will need to concur with the changes approved in committee before the bills make their way to the Governor’s desk.
During an interview with the Michigan Advance in May, Gov. Gretchen Whitmer said she supported greater transparency efforts, but at the time was uncertain when those efforts would move forward.
Whitmer previously promised to expand FOIA to the governor and the lieutenant governor while campaigning for her first term, provided the Legislature did not act on the issue. Whitmer has yet to extend FOIA to her office since she was sworn in on Jan. 1, 2019.
“I would leave this with two conflicting viewpoints of this, but really, I think it comes together. Number one, this will be intrusive. This will be disruptive. You will be subject to FOIA and if you served on a local unit of your government, you were subject to FOIA, you know how that can work. But at the same time, I don’t think it disrupts the core functions of our government. In fact, I think it enhances the core functions of our government,” Moss said.
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