ACLU at the Michigan Capitol – May 2, 2016

Last week in Lansing, a truly right/left bipartisan group of 36 legislators led by Rep. Jeremy Moss (D-Southfield) and Rep. Ed McBroom (R-Vulcan), introduced legislation that will require our lawmakers in Lansing and the Governor’s office be subject to Freedom of Information Act (FOIA) laws.

This is significant. I would guess that most Michiganders and many legislators are unaware that, while most public officials are subject to FOIA laws, we are one of only two states where both the legislature and the executive office are exempted from responding to FOIA laws. Most states, in fact, don’t exempt either and only a handful exempts one or the other.

In a 2015 study conducted by the Center for Public Integrity and Global Integrity, two nonprofit organizations that promote government transparency and ethics, eleven states received a failing grade of “F” and Michigan rank dead last. It is important to note that the study does not refer to corruption. Instead, the study looks at what laws are in place and how those laws are implemented in order to assess the systems intended to prevent corruption and expose it when it does occur.  However, it appears that protective laws have created a culture in Michigan of a government that operates with little expectation of meaningful public oversight. 

As the Flint water crisis unfolded under the bright lights of a national stage, the eventual disclosure of Flint related email messages revealed that government actors often attempted to pre-empt scrutiny by including a disclaimer that the correspondence was attorney-client privilege (even when none of the parties was an attorney). Very often, messages included a subject heading categorizing the message as “preliminary and deliberative” or “not subject to FOIA” in anticipation of claiming a FOIA exemption.

Interest in expanding Michigan’s FOIA laws took root with the 2010 rise of the “tea-party” conservative members of the GOP who coalesced with minority Democrats to push a “transparency” agenda in Michigan.  A major reform was signed into law in 2013 to limit financial barriers and to make FOIA laws less burdensome on citizens, but that effort fell short of increasing government transparency.

Due to recent events implicating legislators and the Governor’s office, such as the Courser/Gamrat investigation and the Flint water crisis, interest has centered on subjecting the legislative and executive branches to more transparency. And though most would agree that the FOIA fix would not have prevented the Flint water crisis, Jane Briggs-Bunting, president of the Michigan Coalition for Open Government, was spot-on when she said “If there is a silver lining in what clearly is a tragedy in Flint, it’s that freedom of information, accountability, and transparency are getting noticed.  More broadly, the situation has renewed national conversation about the value of the public’s right to know and the role of accountability in effective government”.

And in Michigan, that conversation has resulted in the Legislative Open Records Act (LORA), a ten-bill package (HB 5469-5479) that will subject all of our lawmakers in Lansing to FOIA.  This Thursday, the House Oversight and Ethics Committee will hold a second hearing on the bills where they are expected to be favorably voted to the floor of the House.  We expect that the Senate will begin hearings and votes on the package this fall.

Please take this opportunity to call your elected House member and let them know that government transparency is important and that you stand with the ACLU of Michigan in our belief that good government includes tools like FOIA that allow citizens access to accurate information and to ensure accountability.