Casting a Critical Eye
February 10, 2017
As a nosy reporter, I always want to know what politicians are up to.
That’s harder to uncover in Michigan than most states — 48, to be exact. Because unlike those states, we shield both the Legislature and the governor’s office from our Freedom of Information Act (FOIA).
So while you can unearth a wealth of information about your township clerk’s office or the Michigan Department of Natural Resources, you’re out of luck if you try to FOIA your state senator or Gov. Rick Snyder.
I think most people would like to know more about how their government operates. I think they’d like to know how the governor and legislators are spending their tax dollars and how they’re tackling problems, whether it’s the Flint water crisis or House members abusing their offices (i.e. former Reps. Cindy Gamrat and Todd Courser).
But don’t take it from me. Poll after poll shows that trust in government is at an all-time low.
That’s why I don’t buy Senate Majority Leader Arlan Meekhof’s brusque rebuke to journalists: “You guys are the only people who care about this.”
Meekhof (R-West Olive) was appearing on a Michigan Press Association panel last month in Grand Rapids when he dismissed a question about reforming FOIA (full disclosure: I also spoke at the conference).
The good news is that such legislation exists. Reps. Ed McBroom (R-Vulcan) and Jeremy Moss (R-Southfield) introduced a bipartisan package last term, which passed the House. But Meekhof made sure it died in the Senate.
Now Moss has teamed up with Rep. Lee Chatfield (R-Levering) to reintroduce the bills this term (McBroom was term-limited in 2016). The press conference announcing the legislation was staged with great fanfare, and was attended by both new House Speaker Tom Leonard (R-DeWitt), Minority Leader Sam Singh (D-East Lansing) and most members of the lower chamber.
Meekhof seems to relish his role as the bespectacled cartoon villain in this scenario, serving as a one-man wrecking crew against open government. (Although there are rumblings that he’ll eventually be willing to allow the legislation on the floor, so long as it doesn’t go into effect until 2019 — when he and the majority of senators will leave Lansing due to term limits).
But I wonder if some of the focus on Meekhof’s obstinence is inadvertently obscuring the fact that the package has serious flaws.
When it comes to the executive branch, the legislation is pretty straightforward. The governor’s and lieutenant governor’s office would be subject to FOIA with a few basic exceptions, such as materials related to pardons or special messages to the Legislature.
But if you read the many bills outlining the new process for getting information out of the Legislature, it’s hard not to conclude that it’s a bit of a mess. Instead of subjecting the House and Senate to FOIA with the same executive branch exemptions, the legislation creates a different law, the Legislative Open Records Act (LORA), complete with a new bureaucratic body.
There are more exceptions for the legislative branch, including advisory communications between public bodies and caucus records (i.e. internal Democratic and Republican communications), which sounds fairly broad. It looks as though the Legislature wants to play by its own special rules.
Another (likely intended) consequence is that as written, the law could put the governor at a tactical disadvantage in negotiating with the Legislature, as more of his/her records could be open to scrutiny.
Under the bills, the House and Senate would put LORA administrators in charge of approving records requests. If they’re at-will employees, that raises concerns about their willingness to disclose information that legislative leaders don’t want the public to see. And I’m concerned that citizens may not have recourse in the courts if their requests are denied.
Most disturbingly, the public wouldn’t have access to records related to ongoing internal or legislative investigations or litigation. That means that LORA would still keep details secret in another Courser-Gamrat debacle. Let’s not forget that the sex scandal, however delectable, was the least significant detail in that case. The Michigan House had to shell out $350,000 to two whistleblowers — meaning that taxpayers ended up footing the bill.
While Meekhof may not believe the public cares about government records, I’m fairly certain that people would like to know more about why hundreds of thousands of their tax dollars were spent in this tawdry episode.
Many of the package’s supporters see it as a good first step and want more transparency measures down the road. You can certainly make the case that something is better than nothing.
But that shouldn’t stop citizens, especially those of us in the media, from casting a critical eye at this FOIA package and digging into what it really will do. That’s our job, after all — and we shouldn’t forget that.