News Story

Legislative Open Records Bills Overcome Constitutional Hiccup

Other legislatures figured out separation of powers glitch, Michigan’s may be about to also

Since 1977, under Michigan’s Freedom of Information Act, journalists and everyone else have been able to request and usually get records held by state agencies, municipalities, school districts and other public bodies.

Most people never have cause to notice two government operations that are exempt from open records disclosure laws: The Legislature and the governor’s office. That may be about to change.

The state House of Representatives has twice unanimously passed bills subjecting the Legislature and governor to open records requirements, once in 2017 and once last month. In 2017, the Michigan Senate never advanced the bills. The difference this time is that a number of the former state representatives who led and supported the House effort in 2017 are now members of the state Senate. Gov. Gretchen Whitmer is also supportive.

Michigan is reportedly one of only two states that do not subject the governor and lawmakers to open records laws. Rep. Andrea Schroeder, R-Independence Township, is one of the sponsors of the House-passed legislation, and she says “it’s time” to do so.

It sounds simple to do, but in the case of the Legislature, it’s not, for various reasons. An obvious one is what to do with communications from constituents. Making these messages subject to public disclosure requirements risks creating a chilling effect that could cause some people to not email or write their state representative and senator – potentially depriving the state of vital information from whistleblowers. So constituent communications would be exempt under this legislation.

Much trickier is the constitutional separation of powers issue that appears when records requests are denied and the requestor wants to appeal. Under the regular Freedom of Information Act, state agencies and local governments that deny information requests can be challenged in the courts. But since the Legislature is one of three coequal branches of government, it’s problematic for lawmakers to subject its operations to court orders.

Nevertheless, other states have found ways to address this. The House-passed bills adopt one of them, creating a separate Legislative Open Records Act that keeps the process for appealing a denial within the Legislature itself. This would place a bipartisan legislative council in charge of appeals, to provide at least some checks-and-balances protections.

Lisa McGraw, public affairs manager of the Michigan Press Association, said her group supports the bills.

“I believe it's a good start in the right direction,” McGraw said.

According to McGraw, residents and journalists sometimes have trouble getting information through FOIA requests, and proper transparency is important to an effective democracy.

The legislation now moves to the Senate Oversight Committee, which is chaired by Sen. Ed McBroom, R-Vulcan. McBroom sponsored similar legislation when he was a member of the House. Schroeder said she hopes it will receive the necessary support in the Senate.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.