Sept. 21 2016 11:47 AM

FOIA exemption for legislators, governor could be ended

For the first time in generations, the people of Michigan's right to know about the often opaque workings of their government could be broadened.

While the state, citing its dated Freedom of Information and Open Meetings acts, proclaims a commitment to openness, the laws are larded with loopholes and two glaring exceptions that shield the Legislature and Governor's Office from fundamental FOIA requirements.

A series of House bills have been proposed to address the exemptions. They would broaden right-to-know laws by requiring legislators and the governor and his staff to finally provide public documents, defined as “writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created, but does not include computer software.”

The House could take up the bills this week and the outlook for passage is good. Advocates, among them House Oversight and Ethics Committee Chairman Ed Mc- Broom, R-Vulcan, have been working with Gov. Rick Snyder's office on the bills and have modified them to reflect some of its concerns. To date there are no hints from Senate leadership either for or against the changes proposed by the House.

While the proposed law is hardly perfect — there are still too many FOIA exemptions overall — it nonetheless is at least a step toward government transparency in a state that once was perceived as a model for openness. Now, however, the Center for Public Integrity gives Michigan a grade of F — 44th in a ranking of all 50 states. Among the reasons was the lack of legislative and executive accountability. While there are still significant issues cited by the center, among them judicial accountability, lobbying disclosures, ethics enforcement agencies and state civil service management, the proposed FOIA changes address two of the issues.

The significance is illustrated by the groups supporting the measures.

FOIA is an issue where both the left and right wings of politics can coalesce. A more open and accountable government serves the interests of the liberal American Civil Liberties Union and the conservative Mackinac Center for Public Policy, both of which testified in support of the bills. Support also comes from organizations as politically diverse as the Michigan Freedom Fund, which is says “exists to defend the Constitution, stand up for our personal and economic freedoms, and inform the public of any and all efforts to take away their rights, and the Michigan State Employees Association, the public sector union representing primarily state, but also county and university employees.

Past legislatures have occasionally hinted at broadening FOIA disclosure, but they were generally content to keep their lawmaking affairs hidden.

But it was a different kind of affair, the tawdry Todd Courser/Cindy Gamrat scandal, that nudged at least the House to reevaluate what public records should be open to disclosure.

The investigation by the House Oversight and Ethics Committee was hampered by the secrecy shielding legislators' records. Ultimately the pair were accused of using their public offices to hide their extra-marital affair and orchestrating a ludicrous cover-up story involving Courser’s being blackmailed over drugs, pornography and paid sex with men.

House members recognized that the paper trail detailing Courser/Gamrat's deceits — forged names on draft bills, Internet documents and other memos and emails — currently is not subject to FOIA. In the future it would be.

The Flint tainted-water scandal also has nudged some legislators to acknowledge the need for more transparency from the Governor's Office. Snyder released thousands of so-called “public records” about his administration's decisions and policies that contaminated Flint's water with poisonous lead. But legally he didn't have to.

The proposed House bill sets a 15-day threshold for a record to become public. And it specifies a “public body could not destroy or alter a record before it had been in its possession for 15 days if the record would later become a public record,” according to the House Fiscal Agency.

As with other public bodies, the Legislature and Governor's Office can assess fees to the public for records. To handle the inevitable disputes on what should be released, the bill authorizes the Legislative Council, a bipartisan, bicameral body of legislators, to designate an official or officials to oversee the process.

Those who ultimately disagree with how FOIA decisions are made cannot initiate legal actions as they might for other public bodies. The bill expressly prohibits civil actions and judicial review. And the law would apply only to disclosures starting in 2017. What's happened in past documents stays hidden in past documents.

Yes, hardly a perfect law. But the disclosure exemptions specific to the Legislature and Governor’s Office — records dealing with constituent communications, caucus documents, appointment documents before a decision and other constitutional issues — aren't entirely unreasonable. And yes, a compromise. But the changes are long overdue and welcome.

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