By Steve Thorpe
Legal News
Action is brewing in Michigan to streamline and strengthen the state Freedom of Information Act for government records. Bipartisan support for reforms appears to be growing. Robin Luce Herrmann is a shareholder based in Butzel Long’s Bloomfield Hills office, a former Practice Department chair of Butzel Long’s Litigation practice and the head of Butzel Long’s Media group. Herrmann concentrates her practice in the areas of media law, particularly defamation, privacy, and access issues; commercial litigation, including RICO, and civil rights. She also serves as general counsel to the Michigan Press Association, the official trade association for Michigan newspapers. Herrmann has trial and appellate experience in both state and federal courts.
Thorpe: Michigan has regularly gotten dreadful “grades” from watchdogs and public organizations on government transparency. Deserved?
Luce Herrmann: Unfortunately, I believe it is deserved. While every state has flaws/loopholes in their open records laws, Michigan is particularly flawed because it excludes the governor and lieutenant governor, as well as essentially the entire legislature. This is very unusual; the vast majority of states provide for access to these public bodies in their open records laws. And all too often, there are unwarranted delays, excessive redactions and/or very high costs in getting records in Michigan. If all public bodies commit to transparency, we update our law and demand compliance, Michigan can raise its grade — maybe even make the Dean’s List.
Thorpe: How did we get here? Was Michigan always ranked low on the issue?
Luce Herrmann: This loophole in Michigan’s law goes back more than 40 years, so the State of Michigan hasn’t exactly been a trailblazer in transparency. In my view, Michigan has fallen further behind because the Legislature has historically refused to remedy deficiencies. In addition, many other states have taken positive steps to update their laws and close loopholes; the Michigan Legislature has failed to do the same. A legislative leader publicly stated that only the media cares about transparency and accountability. Unfortunately, I think that there are many other legislators that labor under this misconception. I have conducted many open government seminars across the state for the public. Citizens attend because FOIA is a means by which they can find out how their taxpayer money is being spent in their schools, or determine the qualifications of applicants for public employment, among many other things. If citizens were more vocal about the importance of these issues and indicate that they affect their vote, we would likely see access to more information more quickly.
Thorpe: New Gov. Gretchen Whitmer called for legislation to expand FOIA to her office and the Legislature in her February State of the State speech saying, “It’s time to ensure that the sun shines equally on every branch of state government.” Does her support make a difference?
Luce Herrmann: It absolutely makes a difference. Both Gov. Whitmer’s and Attorney General Dana Nessel’s public support for transparency and accountability reflects the importance of these issues to the citizens of Michigan. It also sends a message that some of the shenanigans with FOIA we have seen over the years are much less likely to be tolerated by those offices.
Thorpe: House Speaker Lee Chatfield, R-Levering, has also called for transparency reform. So this is truly a bipartisan trend?
Luce Herrmann: There are hopeful signs this is a bipartisan trend. The Michigan House recently acted on a series of FOIA bills that would provide more transparency and accountability 107 to 0. That’s very encouraging. These bills need to be enacted and further FOIA reform examined.
Thorpe: What options are lawmakers examining at the moment?
Luce Herrmann: A series of bills passed the House in March that would make the governor and lieutenant governor, as well as the Legislature, subject to FOIA. While there are concerns among transparency advocates about some of the provisions of the proposed law and some new or special exemptions, it is a step in the right direction. Those bills are pending in the Senate. Hopefully, the Senate will act on the bills and continue the positive momentum.
Thorpe: If you were a betting woman, what sort of odds would you suggest for meaningful reform finally happening this year?
Luce Herrmann: I learned my lesson on betting a few years ago – the Flint water crises spurred the House to amend FOIA, but the amendment never went anywhere in the Senate. You would think that situation would have caused some change, but that didn’t happen. I think the odds are 50-50 at best. There are other issues that the Legislature has to address with looming deadlines. In addition, the Legislature doesn’t seem to have much incentive to open themselves to more transparency and accountability. I think the only way that the odds on meaningful reform will increase is if members of the Legislature feel the pressure from voters for reform.
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