Senate symbolically lets the sunshine in as FOIA reform bills advance to the House

Sen. Sam Singh tries to close the shutters in the Senate chamber after members symbolically opened them to let the sun shine in after long-delayed FOIA reforms passed the chamber on June 26, 2024 | Kyle Davidson

During a lengthy Wednesday session, members of the Michigan Senate voted to advance an effort to expand the state’s Freedom of Information Act (FOIA), with members symbolically opening shutters to let the sun shine a light on government.

One of the legislation’s lead sponsors, state Sen. Jeremy Moss (D-Southfield), hailed its passage as “a new chapter of openness in our state.”

However, senators did have some trouble closing the wooden shutters afterward, temporarily delaying action on the floor.

Senate Bills 669 and 670 , introduced by Moss and Sen. Ed McBroom (R-Vulcan), respectively, would expand FOIA to include the governor’s office and the Legislature, both of which are exempt under the current law. Members voted 36-2 in support of the bill, which will advance to the House for further action, with Sens. Jon Bumstead (R-North Muskegon) and Jonathan Lindsey (R-Allen) offering the only votes against the bills.

Under Senate Bill 670, the House speaker and Senate majority leader would be responsible for designating a FOIA coordinator in each of their chambers to process public records requests. While speaking on the package, Sen. Jim Runestad (R-White Lake) raised concerns that there could be a new coordinator every two years in the House, should control of the chamber change.

He also said this process could lead to partisan approval or denial of requests, or individual members being singled out by having requests for information about them approved while others are denied.

Senate Minority Leader Aric Nesbitt (R-Porter Twp.) proposed an amendment to make selecting a FOIA coordinator a bipartisan process, but the amendment was shot down along party lines.

While urging a no vote on Nesbitt’s amendment, Moss stressed that selecting a coordinator is a nonpartisan personnel decision, and matches the process for selecting the Senate Business Office director.

“I agree that partisanship has no place [in] responding to FOIA requests and hopefully we can work to ensure that as we develop chamber rules in future sessions necessary to implement the expansion of FOIA to the Senate,” Moss said.

McBroom later told reporters that he supported Nesbitt’s amendment not out of concern for what the position would be in its current form, but for what it could become in the future.

While Nesbitt noted he still had concerns with some aspects of the bills, he encouraged members of the Senate to vote yes on the policies.

Moss and McBroom have long pushed for reform to the state’s FOIA law, putting forth the latest efforts in November in the Democratic-controlled Senate. Both senators recounted their introduction to the issue while serving in the House, when they were able to successfully move legislation out of the chamber to the Senate in 2015. However the Senate never acted on the effort until now.

Michigan was previously ranked dead last in the U.S. for government integrity. In a 2015 report from the Center for Public Integrity , Michigan failed in 10 out of 13 categories including public access to information, executive accountability, and legislative accountability.

While the bipartisan package would open opportunities for journalists and members of the public to better hold officials accountable, the bills contain exemptions for multiple state agencies, including the House and Senate Fiscal Agencies and the Legislative Service Bureau.

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 an 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

The Legislature also receives similar exemptions to the governor’s office for individuals appointed to a position by the House speaker or the Senate majority leader, which no longer apply after they’ve been appointed save for information related to the process of selecting them for the position.

The Legislature is also exempt from providing records from the office of sergeant at arms, which provides security for the chamber, and materials that would otherwise be exempt from disclosure under state law.

Runestad opposed the exemptions on decisions to suspend a public official, recommendations on reducing expenditures. He also argued the exemption on records retained for less than 30 days should be shortened to seven days.

“I think there’s a lot of issues that are very nuanced compared to what you deal with at other government levels,” McBroom said, pointing to constitutional speech and debate protections, the governor’s ability to review personnel, issues with elected officials and appointments and protecting constituent communications.

“There’s a lot of things that had to be nuanced to this, so it wasn’t just, ‘Here’s FOIA; just do it,’” McBroom said.

With the legislation out of the Senate, the goal is to keep it moving, Moss said.

“I think there’s a lot of enthusiasm in the House to take this up and we’re very hopeful to work with our House partners to keep this process rolling,” Moss said.

However, with the Legislature wrapping up work early Thursday morning on the next budget, lawmakers are not expected to come back to take up much legislation this summer.

During an interview with the Advance in May , Gov. Gretchen Whitmer showed support for increased transparency efforts, but said she was uncertain when those efforts would move forward.

While campaigning for her first term, Whitmer said she would expand FOIA to the governor and the lieutenant governor if 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.

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