Here we go Again: Trying to Make Legislators' Records Public

Under current law, records in the possession of legislators and their staff are exempt from disclosure under Michigan's Freedom of Information Act. Senate Bill 181, introduced on March 5, would repeal this exemption. Similar measures have been introduced during recent legislative sessions and always — without exception — by members of the legislature who were in the minority party. That’s the situation again this year, with Sen. Steve Bieda, D-Warren, sponsoring Senate Bill 181.

“It has always bothered me that we are continually passing laws that affect other entities, like local governments, but then exempt ourselves from the same standards,” Bieda said. “I’m a firm believer in public transparency. The legislature’s exemption from FOIA should be lifted.”

Jack McHugh, senior legislative analyst with the Mackinac Center for Public Policy, said the acid test for this type of legislation is whether it exempts constituent communications.

“There have been many bills introduced like this in the past,” McHugh said. “But what has made most of them problematic is that they wouldn’t have exempted communications between lawmakers and their constituents. Those communications should not be subject to FOIA.”

Senate Bill 181 does not exempt constituent communications; however, Bieda said he agrees that with few exceptions constituent communications should be exempted. But he said he expected that point to be discussed in the committee process.

“Obviously, we wouldn’t want the majority of lawmakers’ interactions with their constituents to be subject to FOIA,” Bieda said. “Constituent contacts with lawmakers about situations involving divorce and custody issues or questions about tax issues and so many other things — of course those shouldn’t be made public. Those communications should be viewed in the same way we view attorney-client privilege. I would expect discussions about what’s appropriate to take place in committee and would support exempting those kinds of communications. However, I do think it might be useful to be able to find out some kinds of things, such as — in the aggregate — how many constituent contacts a lawmaker has had.”

“I think the issue of constituent communications may have been a reason given for exempting legislators from FOIA when the FOIA law was first passed back in the 1970s,” Bieda continued. “But those communications can be exempted just like other things that are currently exempted from FOIA. In my opinion, there are other matters concerning the Legislature that the public should be able to know about. To me, it is a question of open government. Doesn’t the public have a right to know who was sitting at the table when decisions were made?”

In the House, Rep. Brandon Dillon, D-Grand Rapids, has introduced House Bill 4283, which would also repeal the exemption given to legislators and their staff. Dillon's bill would also end the exemption that applies to the governor, lieutenant governor, and their executive offices and employees.

Dillon said he deliberately did not have constituent communications exempted in the draft of his legislation because he thought the issues surrounding that should be debated in committee.

“I don’t think anyone would want communications between legislators’ offices and constituents involving private issues and situations to be disclosed under FOIA,” Dillon said. “But to me, a blanket exemption of all communications between lawmakers and constituents would be a loophole. Suppose one of my constituents just happened to be a top UAW official? A discussion in committee might still end up with a blanket exemption of all constituent communications being adopted if agreement couldn’t be reached on some exceptions. But I still think that’s a discussion we should have.”

Lisa McGraw, public affairs manager with the Michigan Press Association, said that the association is aware of the legislation.

“MPA always supports more openness in government,” McGraw said. “If these bills are taken up we will certainly weigh in.”

Senate Bill 181 has been assigned to the Senate Government Operations Committee, chaired by Senate Majority Leader Arlan Meekhof, R-West Olive.

“The Majority Leader has no plans for a hearing on Senate Bill 181, at this time,” Amber McCann, spokeswoman for Meekhof said.

House Bill 4283 has been assigned to the House Government Operations Committee, chaired by Rep. Bradford Jacobsen, R-Oxford. According to Jacobsen’s office, there are currently no plans to take up the bill in committee.

Dillon introduced measures twice previously — House Bill 4302 in 2013 and House Bill 5515 in 2012 — which would have ended the exemption granted to the Legislature. Bieda introduced essentially the same measure, Senate Bill 202, in 2013. Former Sen. Gretchen Whitmer, D-East Lansing, introduced a similar measure, Senate Bill 1041, in 2012. As initially drafted, none of these measures would have exempted constituent communications.

When the Democrats controlled the House in 2009, former Rep. Pete Lund, R-Shelby Township, introduced House Bill 4613, which would have ended the exemption from disclosure under FOIA as it applies to legislators, legislative staff, the governor, lieutenant governor, executive offices and employees. His bill specifically exempted constituent communications from disclosure. That legislation was co-sponsored by former Rep. Brian Calley — who is now Lt. Gov. Calley. As with all of the other bills introduced before this year, House Bill 4613 never got any traction in the legislature.