Before he was a state Senator, Jeremy Moss, a Southfield Democrat, was studying journalism at Michigan State University when his class was given a simple, straightforward assignment. Each student was to submit a Freedom of Information Act request to a different Michigan county for the budget for salting the roads, but when it came time to share the findings, his classmates’ results were all over the place. Some counties were compliant, while others charged a fee, denied the request outright, or even declined to respond at all.
“From that moment, as a journalism student, I really realized the lack of seriousness that some entities in the state of Michigan treat FOIA [with],” he tells Metro Times.
Like other states, Michigan’s FOIA laws were enacted in the aftermath of Watergate, which opened up government records for public scrutiny. But from the outset, Michigan’s so-called “sunshine laws” fell well short of others — we’re one of two states that exempts the governor’s office from Freedom of Information Act requests (the other is Massachusetts) and one of eight states that exempt elected legislators.
Moss was elected to the state House of Representatives in 2014. During his first year, Michigan earned a big fat F in a report card from the Center for Public Integrity, ranking dead last for ethics, accountability, and transparency. Since then, high-profile scandals including the Flint water crisis and the cover-up of an extramarital affair between former state representatives Todd Courser and Cindy Gamrat only strengthened Moss’s belief that it was time to do something about it.
“Of the major things that people were looking for disclosure and looking for information about, had this law been in place, they would have been out there in the public a lot sooner,” he says.
Moss, a left-leaning freshman, quickly made an unlikely ally in the legislature: state Rep. Ed McBroom, a conservative Republican from the Upper Peninsula in his final term. The two agreed that Michigan’s sunshine laws needed a major overhaul. Working together to draft reforms, the two won support from such diverse groups as the ACLU of Michigan, the Mackinac Center for Public Policy, and the Michigan Press Association. During Sunshine Week 2016, the annual week in March when journalists and lawmakers highlight sunshine law issues, they unveiled their proposal.
The package of bills would open the offices of the governor, lieutenant governor, their staff, and the Legislature to FOIA, and establish a Legislative Open Records Act (LORA) that further strengthens FOIA laws. It passed the House nearly unanimously, but Arlan Meekhof, the Republican state Senate Majority Leader, declined to consider it.
The next session, Moss tried again. Though McBroom was out, Moss had support from then then-Republican Speaker of the House Lee Chatfield. But again, Meekhof rejected it.
Then, in 2018, Moss and McBroom both ran for state Senate — and won. “It kind of was like the band was back together,” Moss says. The two planned to hold the first-ever Senate hearing on the issue in March 2020. We all know what happened next: The COVID-19 pandemic took hold, throwing Lansing into chaos. Moss says the legislation was further spiked as the Republican Party became consumed by Donald Trump’s Big Lie. “From the election on through the end of the year, it was all Republicans chasing after these false claims of election fraud,” Moss says. “On probably the second-to-last day of Senate session of 2020, I said to Ed, ‘You know, we have to make this a pressing priority in the next term. We cannot let this opportunity go by us yet again.’”
Finally, LORA is poised for its first-ever Senate hearing, which as of press time was scheduled for Tuesday this week.
“So now, on the floor of the Michigan state Senate for the first time will be this proposal to finally shine a light, a greater light on the inner workings of state government,” Moss says.
If the legislature won’t act soon, another group is planning on taking the issue directly into the hands of the people of Michigan. Last week, Sunshine Week 2021, the group Progress Michigan unveiled plans for a ballot initiative to put the issue on the November 2022 ballot.
“Every year it's like Lucy with the football,” Lonnie Scott, Progress Michigan’s executive director, said during a recent press conference unveiling the proposal. “The Legislature says ‘We're going to take up FOIA reform, or we’re going to take up transparency,’ and then, you know, it goes to die in the Senate.”
The group says it’s confident it can gather the necessary 340,000 signatures to get the proposal on the ballot, citing a recent poll that showed 74% of Michiganders support changes to FOIA. Recently, the issue of government transparency gained further traction with the mysterious departure of former Michigan Department of Health and Human Services director Robert Gordon, who abruptly resigned in February. A confidentiality clause had prevented either party from explaining why he resigned in the middle of the pandemic.
Like with the case of the salt budgets, Michigan’s issues with FOIA aren’t just limited to the exemptions of the governor and the Legislature. Municipalities, local police departments, and schools are all accused of abusing the current system. When the Detroit Free Press requested documents pertaining to Make Your Date, a prenatal health program run by a woman to whom Mayor Mike Duggan is allegedly romantically linked and that a 2019 investigation found was given preferential treatment, the city initially said it would charge $222,667 for the records and estimated it would take three years to review the documents. After the Free Press filed a lawsuit, the city agreed to provide records for free. Aside from charging exorbitant fees, officials will also delay responding to records requests, sometimes for months, and when they finally come back they’re heavily redacted to the point of being unusable. (See this week’s cover story for more FOIA follies.)
Aside from opening the governor and legislature up for FOIA, the Progress Michigan ballot initiative would require documents to be granted within 60 days. It also addresses what LORA’s critics say are too many loopholes in the legislation, including some exemptions for the governor and legislature. LORA has also come under fire for not allowing residents to sue the Legislature if they believe a records request was illegally denied, instead directing FOIA requesters to appeal to a Legislative Council Administrator appointed by a panel created by the legislature; critics say they question how independent a body created by the legislature could be. Progress Michigan also calls LORA’s 14-day window before documents are made public “troubling,” saying it allows for documents to be destroyed or deleted.
“We spoke in favor of the LORA bill package last year as a step in the right direction, with much more to do,” Scott says. “These bills this year, even though it’s been reported that they functionally are fundamentally similar, are far worse. We do not support the package as it stands and as has been introduced in the House.”
Moss, however, defends LORA. “I tell folks all the time, this is a floor, not a ceiling,” he says. “Right now, we don't have anything. To halt all of this incredible progress that we’ve made in the last four sessions because it’s not the approach that other people would like it to go, I think it’s a lack of recognition of how important it is to get these provisions into law right now.”
Moss says the legislation is the result of years of work with both the administrations of Governor Gretchen Whitmer and her Republican predecessor, Rick Snyder, who explained why there should still be certain exemptions for their offices.
For example, one is documents pertaining to commutations, which Moss says could include information about victims or their families. LORA would also exempt other emails from constituents, who might be writing to lawmakers at times of great desperation. “As somebody who did train as a journalist, of course I would want to understand every single thing that is going on in a lawmaker’s office,” Moss says. “But at the same time, now sitting in that seat, there is definitely a recognition that we are sometimes people’s last resort of communication when they are facing crises. And I felt comfortable shielding that communication from public scrutiny so that people don’t face embarrassment or ridicule.” LORA would not exempt communications from powerful lobbyists, Moss says. (The Progress Michigan proposal would also exempt some constituent communications, including messages seeking assistance in personally obtaining government services or expressing a personal opinion.)
LORA would also exempt drafts of speeches or budget proposals and personal cell phone numbers, among other personal information. Regarding the 14-day window that Progress Michigan says could encourage officials to destroy or delete sensitive documents, Moss says that carve-out was made because they didn’t want the open-records act to be “weaponized” between the parties immediately “ambushing” each other for documents. Moss calls it a “breathing period,” and says the legislation would make it illegal to destroy documents, anyway.
Either by legislation or the ballot box, it seems highly likely that reforms are on the way — at long last.
“I think about this journey that I started six or seven years ago, and we’re clearing the last hurdle here,” Moss says. “This is not landmark legislation. I'd like to think that I’m creative and innovative and smart enough to write something that is landmark legislation. But the reality is we’re fighting to be one of the last states to do this.”
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