How the Flint water crisis and a statehouse scandal gave a boost to FOIA reform in Michigan

Photo by Ben Gordon

A succession of high-profile scandals in Michigan over the last year have cast a spotlight on the high cost of secrecy in state government. Now, there’s an opportunity for open records reform with a bipartisan 10-bill package that passed unanimously through a House committee this spring—and it’s championed by a young lawmaker who once trained as a reporter.

Journalists have long grumbled about the weak open-records law in Michigan, one of only two states where both the legislature and the governor’s office are exempt from the state Freedom of Information Act. Michigan ranked dead last in the most recent State Integrity Report Card from the Center for Public Integrity and Global Integrity, with failing grades for legislative accountability, executive accountability, and public access to information.

Proposals to strengthen records access crop up regularly, with little to show for it, and it’s far from certain that the latest proposal—which doesn’t address every concern of transparency advocates—will become law either. But in the wake of the Flint water crisis and a bizarre scandal involving an attempted cover-up of an affair between lawmakers, the current proposal represents the strongest effort in years to bring more sunshine to state government.

One of the leaders of the legislative effort is Rep. Jeremy Moss, a Democratic lawmaker from the Detroit suburb of Southfield, who earned his journalism degree from Michigan State University in 2008. Moss didn’t go on to work as a reporter, but as he tells it, that journalism background played a critical role in making transparency a priority for him as a legislator.

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He recalled one major FOIA project in particular: Every student at the journalism school was tasked with sending a records request to one of Michigan’s 83 counties, asking the county road commission for how much street salt was used the previous winter. The request for a simple line item led to an array of responses.

“Everything from ‘Why are you asking this?’ to telling you that they’d only make a copy of the documents for a fee that was unreasonable at best, to ‘We’re not responding to this,’ to no response whatsoever,” Moss remembered.

“It goes to show you how we had FOIA laws differently applied across the state,” he said. “If government can hide how much salt is spent in winter, what else can government hide?”

The class project was a trademark of Jane Briggs-Bunting, the former dean of Michigan State’s School of Journalism and now the head of the Michigan Coalition for Open Government. In an interview, she noted that while FOIA compliance can be spotty at the local level, the records law doesn’t even apply to large sections of Michigan’s state government.

“The state has passed open records law for cities, villages, school districts, universities, they all have to have public records and open meetings, but they themselves are exempted as if they are above the law,” Briggs-Bunting said.

That exemption came into play in the wake of the scandal involving an affair between two legislators, which led to a fantastical cover-up involving the misuse of public resources and inappropriate management of young staffers that seems cribbed from a Hollywood B-movie. The Detroit News broke the story last summer—though, Moss believes, with stronger records access, it might have been exposed sooner. (This MLive explainer highlights some of the roadblocks.) When the House of Representatives business office completed an investigation into the controversy, the release of that report was initially blocked, too, though it was ultimately posted online.

The House scandal played out over the second half of 2015. Moss signed on as a co-sponsor to a FOIA reform bill in March of that year, but it didn’t go anywhere. Last fall, he reinvigorated it, in partnership with Rep. Ed McBroom, a Republican from the Upper Peninsula. The two spent “hours and hours and hours” hammering out a proposal, Moss said. 

Meanwhile, growing awareness of the Flint water crisis brought new urgency to the issue of records access. After an outcry from editorial boards across the state, Gov. Rick Snyder moved to release emails from his office related to the crisis—voluntarily, and initially not including 2013, the year the decision was made to switch Flint’s water source. “It’s appreciated,” said Jonathan Oosting, a statehouse reporter for The Detroit News. “But you have to know, they’re still in control of the material. They make the choices.” 

By coincidence, Oosting actually once sat in a computer assisted reporting classroom with Moss at Michigan States. “I think it’s cool that he has a journalism background, and understands the importance of the institution,” Oosting said. “Especially as some politicians on the national level are critical of the role that we play.” 

The latest reform package debuted on Sunshine Week in March. A range of groups supported it, including the ACLU of Michigan—which played a prominent role in exposing the Flint water crisis—the Michigan Press Association, and the Mackinac Center for Public Policy, a conservative think tank that runs its own media outlet.

Highlights of the package: The exemption over the governor’s office would be lifted. To address any concern that Snyder might balk at removing the exemption for his own office, the Mackinac Center dug up a 2010 campaign interview where he backed an earlier proposal to do so. “We’re going to try to hold him to the campaign promise he made six years ago,” Moss said. The legislator also denies any partisan motives: “No one can claim I’m using this to prove a political point, or that I’m using the Flint water crisis as a political issue, or to go after the governor. (I’ve been) working on FOIA issues since I was in college.”

Under the proposal, there would be more access to legislative records, too—to a point—through a new Legislative Open Records Act (LORA). It’s designed so that open records disputes would not go before the judiciary. Instead, the House and Senate would each appoint a LORA coordinator to handle all open records requests made by citizens and journalists, and if a denial or partial disclosure was appealed, it would go before the legislative council administrator, appointed by the legislature itself.

This came about, Moss said, because of some lawmakers’ concerns about how “courts don’t have the authority to adjudicate the [constitutionally] protected speech and debate of legislatures.” 

But it strikes Briggs-Bunting as highly unusual.

“The fact that there’s no judicial oversight is one of the significant flaws,” she said. “You should never let a public body be judge and jury. … That is nonsensical. It’s the fox guarding the chicken house.” 

Personal correspondence from a constituent to a legislator is also exempt, to address privacy concerns. Moss said lawmakers were careful to define what a “constituent” is, rather than using a blanket “citizen” exemption, so that lobbyist-to-lawmaker communications would be publicly available, though Oosting said “you could envision it being abused” by lobbyists having local friends send correspondence on their behalf.

Despite those misgivings, Briggs-Bunting is rooting for the reform package, and is “cautiously optimistic” about its prospects. It’s an open question, though, whether the reform bid will move forward. It was left on the House floor when the legislature began its summer break, and would need to be picked up in the fall, under the shadow of election season.

“I’m worried,” Moss admitted. “This session is winding down pretty quickly for us to get anything meaningful out there.”

What the bills do have going for them is bipartisan support, including from party leaders in the House, and nearly 40 co-sponsors. The effort also has an advantage, Briggs-Bunting pointed out, as a 10-bill package: If one bill gets hung up, the others could still make it through. Oosting said he “wouldn’t be surprised to see it get a vote in the House,” though it has an “uphill battle” in the Senate.

If the effort fails this fall, Moss said he doesn’t want to start over in a new session, “but I would if I had too.” While he is up for re-election, he’s running unopposed for the primary in a heavily Democratic district. McBroom, his Republican colleague, won’t be returning because of term limits.

In her heart of hearts, Briggs-Bunting would like to see freedom of information, open meetings, and transparent campaign finance as a constitutional mandate. Michigan is a long way from that, but greater sensitivity to access concerns in the legislature is a start. 

“If people had been more aware of FOIA, and the government was more upfront and transparent, maybe Flint never would’ve happened,” Briggs-Bunting said. “There are hundreds of children paying a very high price for that kind of arrogance.”

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Anna Clark is CJR’s correspondent for Michigan, Wisconsin, Ohio, and Pennsylvania. A 2011 Fulbright fellow, Clark has written for The New York Times, The American Prospect, and Grantland. She can be found online at www.annaclark.net and on Twitter @annaleighclark. She lives in Detroit.