Gov. Whitmer seeks speedy Michigan public record response, but not (yet) for her office

Update: Michigan House approves records transparency for Legislature and Governor
Update: Is 2019 the year Michigan joins the rest of America on public records?

GRAND RAPIDS—Michigan Gov. Gretchen Whitmer issued an executive order Friday aimed at speeding the response of state government to public record requests, even as she declined ‒ for now ‒ to lift the veil on her own office.

Speaking before the Michigan Press Association, Whitmer said state government must be “open, transparent and accountable to taxpayers” and called her action “an important step to infuse integrity in governance and earn back public trust.”

But responding to a question from Bridge Magazine, Whitmer said she chose not to subject her own office to Freedom of Information Act requests. She said issuing an executive order now would not be as impactful as signing legislation later that ensures the governor and the Legislature are subject to such requests. An executive order, in contrast, could be reversed by a future governor.

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Michigan is one of only two states – along with Massachusetts – that doesn’t subject the governor’s office and Legislature to public records requests.

“A statute is preferable,” Whitmer said. “I think it’s really important we that we continue to try to get a good statute passed so this isn’t just a policy for the Whitmer administration; that subsequent administrations are held to the same standard.”

Republicans attacked Whitmer later Friday, accusing her of breaking a campaign promise to extend FOIA access to the governor’s office.

“With a stroke of her pen Governor Whitmer could bring greater transparency to the Governor’s office. Instead she has demonstrated that her campaign was nothing more than rhetoric,” said Tony Zammit, spokesman for the Michigan Republican Party.

During her successful campaign for governor, Whitmer pledged to expand FOIA to include the governor’s office and legislature.

“If the legislature won’t act, I will use the governor’s authority under the Michigan State Constitution to extend FOIA to the Lieutenant Governor and Governor’s Offices,” she stated on her campaign website.

But Jane Briggs-Bunting, a journalism professor and founding president of the Michigan Coalition for Open Government, which advocates for government transparency, told Bridge the governor nevertheless sent an important message on Friday.

“She’s basically told the executive branch it can’t hide anymore,” she said. “That’s really a huge step forward for Michigan.”

Briggs-Bunting acknowledged that it would have been a positive step for Whitmer to have voluntarily subjected her office to FOIA, since it would demonstrate the governor’s commitment to transparency. Yet even without it, Briggs-Bunting said, Whitmer has signaled to the Legislature she is likely to sign bills that expand FOIA.

If Whitmer were to open her office to FOIA and legislators saw that as a reason not to include the governor’s office in a rewrite of the statute, Briggs-Bunting said, “then she’s right to wait.”

Jarrett Skorup of the Mackinac Center for Public Policy, a free-market think tank that frequently reports on state government’s reticence to comply with FOIA, hailed Whitmer for moving Michigan “in a good direction.” He said Mackinac looks forward to “lawmakers codifying this transparency and more into law.”

Among other things, Whitmer’s executive order also:  

• Calls for appointment of a “transparency liaison” within all state agencies to facilitate cost-effective responses to FOIA requests. It is not immediately clear if this person would have the authority to compel quicker agency responses to record requests.
• Orders the Department of Technology, Management and Budget to devise an online system where public notices and records can be uploaded.
• Seeks to limit instances in which state agencies extend the time to furnish records. Agencies are required by law to respond to FOIA requests within five business days, but they may request extensions of an additional 10 business days. While public offices at all levels in Michigan routinely extend time limits regardless of the nature of requests, Whitmeer said extensions are going to be the exception, “not the general rule" under her order.  

Multiple attempts to increase state government transparency have failed in recent years in Lansing, which until this year saw Republicans control the Senate, House and Governor’s office. Most recently, a 2017 bipartisan package of bills would have opened up lawmakers to FOIA requests. Those bills passed unanimously in the House only to die in the Senate.

There remains bipartisan support in the House for such a measure but its fate remains unclear in the Senate.

New Senate Majority Leader Mike Shirkey, R-Clarklake, has called himself a “transparency hawk,” but said recently that efforts to make the Legislature subject to public records laws need more study. He has cited concerns with how such a law might impact debate, and about privacy rights of constituents should their communications with lawmakers be made public.   

“Otherwise we might actually have unintentional negative consequences,” Shirkey told reporters last month. “We might actually discourage negotiations, discourage conversation, and so forth… and we don’t want to do that.”

Craig Mauger, executive director of the Michigan Campaign Finance Network, a nonprofit watchdog group, said Whitmer’s creation of department liaisons for Freedom of Information Act (or FOIA) requests could be the most significant part of Friday’s executive order, noting that the process of seeking public documents can be confusing for the public.

“I think that piece is probably going to be the most impactful piece in this. We don’t have that currently,” Mauger said.

Lisa McGraw, public affairs manager for the Michigan Press Association, called Whitmer’s directive “a significant step in the right direction.”

McGraw said she agrees with Whitmer that legislative action ‒ as opposed to an executive order ‒ is the best solution to creating more transparent government.

“Then it’s law,” McGraw said.

The Michigan Environmental Council also praised Whitmer’s order as a first step, but urged the governor and Legislature to “further increase transparency (by) ensuring that FOIA covers the legislature and the Governor's office.”

Two days after taking office in January, Whitmer signed six rules outlining ethical standards for public officials in her new administration, including some aimed at making the workings of her administration more transparent to the public.

The directives include banning employees from using private email for public business, and from receiving political contributions inside government buildings. They also require employees to report “irregularities” involving public money and more.  

“State government must be open, transparent and accountable to Michigan taxpayers,” Whitmer said in a statement.

As has been frequently cited, Michigan ranked dead last among the states in 2015 in a ranking by the Center for Public Integrity of government accountability and transparency. Its overall grade: F.

That had a lot to do with a campaign disclosure system that allows “dark” – or undisclosed – funds to seep into much of all campaign spending.

According to the MCFN, half of the $3.4 million spent on 2016 Michigan Supreme Court races came from sources that were not disclosed in campaign finance reports. In 2014, 45 percent of $10.4 million spent on Supreme Court races came from undisclosed sources.

From 2000 through 2015, MCFN found that $127 million in funds not reported to the state was spent on television advertising for campaigns for state office. In 2017, the Michigan Legislature and Gov. Rick Snyder opened the spigot wider by passing a new law allowing candidates to raise unlimited funds through super PACS as long as they don’t directly coordinate with the PAC.

Pressure has been building for years to open Michigan’s government to greater scrutiny.

As the Flint water crisis unfolded in 2014 and 2015, there was growing demand to extend the state’s FOIA act to the executive office and state legislators. Critics demanded the right to know what state officials – and especially Gov. Rick Snyder - knew and when.

In June 2016, 17 months after complaints first surfaced about health issues from Flint’s water, Snyder’s office finally released more than 300,000 pages of emails and documents related to the crisis in what officials described as the final public release of its kind.

But Snyder’s move still left the matter of executive disclosure strictly voluntary on the part of the governor.

Time will tell if the Legislature and governor will open their documents to the public on a more permanent basis.

Bridge reporters Lindsay VanHulle, Riley Beggin and Jim Malewitz contributed to this article.