Governor, lawmakers off limits under public records law

LANSING – Steve Toth has lived his entire life in southwest Detroit, and his family home is among those expected to be demolished to make way for a new public bridge to Canada pushed by Gov. Rick Snyder.

But Toth, who has waited with increasing frustration for a state offer to buy his home on South Crawford, said he feels stymied in his efforts to get information about the government's intentions: Snyder moved planning for the proposed New International Trade Crossing into his office after the Legislature approved budget language barring the Michigan Department of Transportation from spending money on the project.

Toth, aware the governor's office is exempt from the Michigan Freedom of Information Act, said he tried and failed to get what he needed through phone calls with Snyder's staff. He felt his only recourse was to make FOIA requests to MDOT, which told him the records he sought did not exist.

"The governor's office should be subject to FOIA," said Toth, 57. "This is not an open government."

A Free Press survey found Michigan is one of only two states in which the governor has a blanket exemption from public record laws. The other is Massachusetts, which also is one of fewer than a dozen states where state lawmakers have a blanket exemption.

Michigan's FOIA law, passed in 1976, is silent on whether state lawmakers are covered, but former Attorney General Frank Kelley, in a 1986 opinion, said "the Legislature has exempted state legislators" from the law.

Combined, the exemptions for the governor and lawmakers make Michigan's open records law one of the country's weakest, in terms of who is covered and who is not.

At least a handful of state lawmakers want to bring both the governor and the Legislature under FOIA, but bills that would do that have languished and no action appears imminent to bring Michigan citizens' rights to access government records in line with most of the rest of the nation.

"There should be no protected class of politicians in Michigan," said state Rep. Brandon Dillon, D-Grand Rapids, who has introduced a bill to apply the FOIA to state lawmakers and says the governor's office should also be covered.

"We ask that state agencies and county commissioners and city commissioners are subject to FOIA," Dillon said. "There should be nothing that we are communicating ... that should not be able to hold up to public scrutiny."

Michigan's FOIA says the parts of state government it covers "does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof."

Some records in the Michigan governor's office still must be released since the state constitution — which trumps the FOIA — says "all financial records ...and other reports of public moneys shall be public records and open to inspection."

But records related to the governor available in many other states — such as correspondence, reports, appointment schedules and phone records — are not available in Michigan.

In August, Snyder announced he would move monitoring of the problem-plagued prison food contract with Aramark Correctional Services out of the Corrections Department into his office. That sparked concerns the move was being made to shield records documenting contract mishaps. In response to those concerns, Snyder decided to put the new contract monitor in the Department of Technology, Management and Budget, which is subject to FOIA, spokeswoman Sara Wurfel said.

In Massachusetts, the Legislature is exempt by statute and the governor's office is exempt as a result of a court ruling, said Justin Silverman, executive director of the New England First Amendment Coalition.

Many states give exemptions to the governor's office that fall short of a blanket exemption. In Arkansas, "working papers" of the governor are exempt and the exemption has been interpreted narrowly. In Tennessee, the governor may protect "papers relating immediately to the executive department, and in the governor's judgment, requiring secrecy."

Democratic gubernatorial candidate Mark Schauer said in a recent interview the governor's office should be covered by the open records law, but Snyder told the Free Press he is not sold on the idea.

"I'd have to give that more thought," Snyder said. "As governor, it's good to have people you can talk to ... when you're coming up with brainstorming ideas or thought processes, talking about difficult issues."

The Michigan FOIA doesn't cover verbal communications, unless a record is made — such as through minutes, an audio recording, or a memorandum.

The law also has an existing exemption for "communications and notes ... of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action," provided "the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure."

Snyder spokeswoman Sara Wurfel said the governor provides the media with many records he isn't required to provide "in the spirit of transparency."

State Rep. Tom McMillin, R- Rochester Hills, chairman of the House Oversight Committee, said he would support legislation to bring both the governor and lawmakers under the state FOIA — with certain possible exemptions.

"It's clearly something we should debate and discuss," McMillin said.

But based on experience in other states, putting the executive office under FOIA would not be a cure-all, he said. "They just use other ways to get around it," he said.

Barbara Petersen, president of the First Amendment Foundation in Florida and a board member of the National Freedom of Information Coalition, said that's been the experience in Florida, a state considered a national leader in "sunshine laws," where access to government records is enshrined in the constitution.

Officials in the Florida governor's office have used personal e-mail accounts to try to evade public records requests, and the administration has claimed each employee is the custodian of his or her own records, making it much more difficult to capture relevant records in a single request, Petersen said.

Still, looking at Michigan: "I find it phenomenal that a state Legislature would exclude its chief executive officer," she said.

"To not hold your governor accountable to the people he represents I find just shocking and completely antithetical to the whole notion of transparency."

Heidi Kitrosser, a professor at the University of Minnesota Law School who has extensively studied executive secrecy at the federal level, said the need for "candor" in receiving advice is the most common secrecy argument heard among chief executive officers in the public sector.

The argument has some legitimacy but is often applied in too sweeping a manner, said Kitrosser, who noted the White House also has a blanket exemption from the federal Freedom of Information Act.

Louisiana formerly had a blanket exemption for the governor from its public records law, but Gov. Bobby Jindal — who like Snyder campaigned partly on a platform of government transparency — pushed through a law in 2009 that partly removed that exemption.

Robert Travis Scott, president of the Public Affairs Research Council of Louisiana, which advocates for transparency in state government, said the new law included an exemption for the "deliberative process," involving communications related to policy development.

That exemption is now used not just by the governor's office but by other state agencies that didn't use it previously, Scott said.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com