Public Records and the Office of the Governor

The Michigan Freedom of Information Act provides a compelling declaration in favor of government transparency: “It is the public policy of this state that all persons … are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.”

The Flint water crisis has illuminated an important exemption found in FOIA; the law exempts the governor and lieutenant governor and their offices from the requirement to produce public records upon request. This exemption is considered from time to time by the Legislature. For example, in 2009, then-Rep. Pete Lund introduced a bill to eliminate the governor’s FOIA exemption but the bill died in committee.

In spite of Michigan’s gubernatorial exemption, Gov. Rick Snyder has taken a notable step of releasing internal email communication related to the Flint water crisis.

But Michigan is an outlier as the only state with a blanket statutory exemption for the governor and executive office staff. (In Massachusetts, which is often cited along with Michigan, the state’s high court ruled that the state’s public records law doesn’t explicitly list the governor as being subject to the law. Subsequent governors relied on the ruling to assert the law does not apply to them.)

The last state to eliminate a gubernatorial exemption was Louisiana in 2009 under Gov. Bobby Jindal. The transition was highly contentious because the legislation included significant carve outs for documents in the governor’s office, including intra-office communications of the governor and staff, the governor’s security, schedule and certain budgeting documents. A subsequent change in the law in 2015 pared back some of those exemptions.

Should the Michigan Legislature amend FOIA to include the governor’s office, lawmakers will likely evaluate whether any new exemptions should be created.

Another consideration is whether such a FOIA change would create a constitutional conflict between the Office of the Governor and the Legislature. In at least eight states, governors have successfully asserted executive privilege as a basis for avoiding disclosure of records. (The states are Alaska, Delaware, Maryland, New Jersey, Ohio, Oklahoma, Vermont and Washington.)

In those states, the courts recognized that a governor, like the president, enjoys certain privileges under the separation of powers doctrine. Governors have argued that executive privilege (sometimes referred to as “deliberative process”) shields certain internal communication intended to inform decisions of the governor. The courts in the eight states have recognized a limited executive privilege; that is, the office is not entirely exempt from the public records law but can, in some circumstances, withhold records from disclosure.

Records withheld under executive privilege usually share several features. They are (1) pre-decisional communications that occur for the purpose of formulating a decision, (2) internal communications between the governor and his or her advisers and (3) deliberative communications rather than purely factual documents. If the governor refuses to turn over a record using executive privilege, the burden of proof is on the person requesting the record, who must demonstrate a particularized need for the records.

Florida provides a contrasting approach to allowing courts to determine what executive records are exempt from FOIA. There, the Florida Constitution includes a right of access to public records and meetings — Article I, Section 24 states: “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body …. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder.” The Florida Legislature is subsequently authorized to enact exemptions from disclosure by a two-thirds vote of each legislative house.

If the Michigan Legislature eliminates the gubernatorial exemption in FOIA, the change could instigate questions about the proper executive privileges of the governor’s office and whether it might require amending the Constitution to achieve the goals of full gubernatorial transparency. It is a worthwhile policy discussion, but one that can be informed by the experiences of other states.