Posted: March 15, 2024 11:32 AM

The latest version of legislation that would expand the Freedom of Information Act to include the Legislature and the governor's office took its first step this week with a Senate committee voting to advance the bills.

Members of the Senate Oversight Committee voted 5-0, with one abstention, to report SB 669 and SB 670, which would expand FOIA to include the Legislature and governor's office, with several exemptions.

Bill sponsors expressed confidence in seeing the bills getting to the governor's desk after nearly a decade of failure in past sessions.

Committee Chair Sen. Sam Singh (D-East Lansing) called the vote historic.

"Because it has been the Senate who has been the block of making this law for the last couple of sessions, so I am proud that it is the Senate that is now is taking the lead on this," Singh said.

Sen. Jeremy Moss (D-Southfield), sponsor of SB 669, was succinct in highlighting the importance of the proposal in comments to reporters.

"To put the governor's office and state Legislature into an open records law, that's pretty significant and institution-changing," Moss said.

Under the bills as reported, legislative record exemptions include constituent communications unless the person is a registered lobbyist, records dealing with internal investigations, records related to civil actions until they are adjudicated or settled, caucus counsel records or personal cell phone numbers.

Multiple exemptions for the governor and lieutenant governor are spelled out in the legislation, including information and records related to gubernatorial appointments, decisions to remove or suspend public officials from office or remove a judge or relating to pardons, and records that could affect the personal safety or security of the governor or lieutenant governor, including their phone numbers.

The constituent communication exemption would be unique. It doesn't exist for other public bodies in the state. And there already are exemptions to protect the privacy of residents seeking assistance from their government, like those barring disclosure when it would cause an unwarranted invasion of personal privacy and federal law guarding against health information disclosure.

That exemption would have more limits for the Legislature than the governor, where the exemption could prevent any communication to the governor's office from ever becoming public unless it came from a registered lobbyist. Key business leaders and others who advocate for issues but are not registered lobbyists would be protected.

The bills also outline the process for appointing the FOIA coordinator for each chamber, as well as a designee for handling FOIA appeals.

Committee members adopted S-1 substitutes for both bills prior to reporting the legislation.

The exemption for the governor's office for records related to appointments would also be granted to the Legislature under the substitute language.

One key change is that the FOIA coordinator would weigh whether records that were requested are in the public interest when there is a denial, rather than putting the onus of proving public interest on the person requesting the documents at the beginning of the process.

Another provision deals with narrowing an exemption that originally included "records created, prepared, owned, used, in the possession of or retained by the majority or minority caucuses of each house of the Legislature," Moss said.

"We've heard scrutiny that that might be too broad of an exemption," he said.

In the substitute, the language is narrowed to include "documents related to advice, opinions or recommendations about public policy or district work."

The security exemption for the governor and lieutenant governor was also expanded to include members of their families.

Sen. Jonathan Lindsey (R-Coldwater) questioned in remarks to reporters the exemption for the governor's office for records or information associated with an internal investigation.

"Down the road, I don't want the exception for the investigation to turn into something where it can be used as a general shield that keeps people from FOIA-ing things that otherwise should be FOIA-able," Lindsey said.

Another concern he has with the bills is the Senate majority leader and House speaker controlling the appointment of FOIA coordinators in their respective chambers. He said there are different ways it could be addressed, and he expects conversations will continue.

"I'm hopeful that it's something that just makes sure that it's not a political position," Lindsey said.

Sen. Ed McBroom (R-Vulcan), sponsor of SB 670, told reporters he believes the delaying in enacting a FOIA expansion is in part due to many members feeling their offices are boring and have little material that would be of interest to anyone.

"We also had a number of leaders over the years who received legal advice from various attorneys and such that they felt was very dissuasive to going down this road, particularly putting the Legislature under FOIA itself," McBroom said.

He said that was one reason why in past versions of the bills he had proposed a Legislative Open Records Act for the Legislature.

Moss told reporters the bills would lay a foundation for the state to build off moving forward. He also acknowledged the difficulty of finding the right language in the bills surrounding personal communications.

"One of the most sensitive areas as we've been going on this project for the last nine years has been how do you ensure that when a citizen, a resident of the state of Michigan, reaches out to the governor or their state legislator with something that is incredibly personal in nature … we wanted to create a system where they could comfortably express, as their right is, to their government officials grievances, requests, opinions," Moss said.

When the example of whether it would be considered personal if a business owner contacts the governor with a request to help their business, Moss said the nature of a request would have to be determined by the FOIA coordinator on a case-by-case basis.