In December, I, like many in the reporting, journalism and please-elected-officials-do-the-right-thing sphere, had high hopes the Michigan Legislature and the governor would finally fix our state’s outdated public records law.
They didn’t.
They still absolve themselves from having to answer to the Freedom of Information Act, also known as FOIA, the law that gives the people the right to access information about their state government.
Instead, the most recent legislative session was just another tired episode of fox vs. henhouse.
Non-breaking news: The fox is winning.
By the first week of January, I’d stopped smacking my palm against my forehead long enough to look into the history of public information access in Michigan.
How did it get so bad? Well, pull up a comfortable chair because I refuse to suffer through this saga alone.
IT ALL STARTED ON July 4, 1966, when President Lyndon Johnson signed the federal Freedom of Information Act into law.
Back then, U.S. voters were shocked and outraged when national newspaper reporters broke story after story about ways the intelligence community was surveilling its own citizens, namely anti-war activists.
Watergate further tarnished the public trust in the U.S. government and, in 1974, the federal FOIA was amended to give regular people more access to records about what our elected officials were up to and how they were spending our tax dollars.
About this same time, staff with a nonprofit, non-partisan group in Michigan happened to be conducting unrelated research, when they encountered an immovable force.
Namely, the Great Lakes state’s bureaucracy.
How FOIA came to Michigan
“In the early 1970s, PIRGIM (Public Interest Research Group in Michigan) executive director Joseph Tuchinsky was conducting research regarding the state agency that regulates pharmacists when he hit a snag,” Elizabeth Ridlington, a policy analyst, told me in a recent email.
The state refused to release its consumer complaint records, PIRGIM filed suit and won. They got the records and they shared them with the public.
But more importantly for all of us, the process provided a new understanding of just how difficult and expensive it would have been for a regular person to do the same thing.
So, PIRGRIM’s legal director, a man named Ed Petrini, helped draft Michigan’s FOIA law.
By then most states in the U.S. were passing their own FOIA laws, and Gov. William Milliken signed Michigan’s in December 1976.
A few months before, Milliken had already signed another transparency bill, the Open Meetings Act, and the new laws were a big step forward in giving the public access to government records.
Public bodies like county commissions and township tax assessors and state public health departments, for the first time, had to conduct their business in public, and to make their records public, too.
But this was still politics, remember, so it shouldn’t come as a surprise that there were absurd, self-serving and indefensible exceptions.
Politics then, politics now
FOIA did not then, and does not now, apply to the courts, the state Legislature, individual legislators or their committees, or to the governor’s or lieutenant governor’s offices or their personal staffs.
If that sounds dumb, it’s because it is dumb.
But it wasn’t supposed to be this way.
The original FOIA legislation was sponsored by Rep. Perry Bullard, a decorated Vietnam War veteran and attorney from Ann Arbor who served in the state house from 1973 to 1993, and at one point chaired the House Judiciary Committee.
Bullard, who also sponsored the OMA, did not favor the exemptions.
They weren’t in his original bill, and he didn’t like them.
Others added them in when it was too late in the year to work out a compromise.
Bullard was hopeful, he told a reporter in the waning days of December 1976, that this error in judgement would be removed or modified in the next legislative session.
By which he meant 1977.
For financial context, Gov. Milliken’s annual salary and benefits that year were $52,250, the payroll for his statewide staff was $1.1 million and state legislators, all 148 of them, made about $19,000.
(A nod here to Governor and Helen Milliken’s thrift — according to reporting at the time, the Millikens paid the entire cost of maintaining their Traverse City home, even their phone which he used for state business, she did their grocery shopping herself, driving to the store here and in Lansing in her 1974 Vega.)
Anyway, not counting the cost of state courts, or other assorted sundries like legislative committees, the state in 1977 paid about $4 million (of our money) to employ a governor and a state Legislature.
If, in some magical realm, there’d been no pay increases for the various people who served in these offices over the next 49 years, taxpayers by 2024 would have paid out about $196 million.
Compared to the actual figure (which I didn’t calculate because I have a healthy blood pressure and want to keep it that way) that is surely chump change.
And we, my friend, are the chumps.
We don’t get what we pay for
We’ve paid to employ these people, and covered their expenses to do the people’s work, but we are not allowed to see how they do it.
I, of course, am not the only person frustrated by this — multiple legislators have tried to remedy the loophole (such a cute word) and failed.
Apparently, Michigan has yet to experience its Watergate.
Which is surprising because, according to previous reporting, the DOJ and court records (some of which are public), we have had our fair share of public scandals.
For example, William Beer, an Oakland County Circuit Judge who’d retired in 1983 and was serving as a visiting judge, was outed during a divorce case he was presiding over, as a bigamist. Beer had three children with one wife, and nine more with another and was being paid with public money to rule on other families’ legal disputes.
Then there’s John Morberg, former director of the House Fiscal Agency, who along with certain employees, in 1993, was accused of using public money to finance credit card payments, pay for vacations, buy furniture, pay for dental work and pay personal property taxes.
Morberg went to prison, the Detroit News won a Pulitzer Prize and the state was defrauded of an estimated $2 million.
In 2001, Sen. David Jaye became the first person expelled from the state senate, after facing drunken driving and domestic violence charges; he ran for re-election that same year and lost, perhaps because newspapers reported porn was found on his state computer.
In 2015, two state representatives, Cindy Gamrat and Todd Courser, were accused of using state resources to cover up their extramarital affair. Both later left office — Courser resigned and Gamrat was expelled.
In 2022, Lee Chatfield, a former speaker of the Michigan House of Representatives, was under investigation for allegedly sexually abusing his sister-in-law, when investigators said they’d uncovered evidence of financial misdeeds.
Chatfield maintained that the sexual relationship was consensual and he was not charged in the abuse investigation.
In 2024, however, he and his wife, Stephanie Chatfield, faced multiple felony charges related to accused misuse of political, nonprofit and taxpayer funds in 2019 and 2020 while he was speaker.
The case is ongoing and the Chatfields have pleaded not guilty.
In 2023, Rick Johnson, another former Speaker of the Michigan House of Representatives, was sentenced to 55 months in federal prison and fined $50,000 on solicitation and bribery charges, related to his work with the Michigan Medical Marijuana Licensing Board.
Johnson had to forfeit $110,200 the U.S. Department of Justice said he’d received as bribes, in the form of cash payments, flights to Canada on private jets, and “commercial sex paid for by others.”
These scandals were first made public by skilled reporters with trustworthy sources — not by government officials making state records public just because it was the right thing to do.
Fox, henhouse, repeat
Would these scandals have happened if the Legislature had fixed FOIA? Who knows?
In December, they had the chance to do it, and possibly even prevent future scandals, but as I may have mentioned, they blew it.
There are a few exceptions — Ed McBroom, a U.P. legislator, and Jeremy Moss, a Southfield legislator, have been working together since at least 2015 to expand FOIA – if not to the courts, then at least to the governor’s administration and the Legislature.
“Each scandal has built the case for this,” Moss, in 2023, said of yet another version of the FOIA reform bill he and McBroom sponsored and then watched die in committee.
It’s worth noting, too, that there’s no need to include anyone’s political party in this account because, when it comes to this issue, party affiliation is irrelevant.
Campaigners support expanding the amount of information available to the public, and office-holders do not.
A side effect of winning a statewide election in Michigan is apparently an instant attack of amnesia.
Rick Snyder, when he was campaigning, said he’d sign a bill expanding FOIA if it made it to his desk once he was elected governor.
It didn’t.
But in 2017, Snyder did sign into law a bill that exempted from FOIA in-progress bids for public contracts.
In 2018, when Gretchen Whitmer was running for governor, she promised to not just sign a bill, but to open her office to FOIA, regardless of what the Legislature did.
“If the Legislature won’t act, I will use the governor’s authority . . . to extend FOIA to the Lieutenant Governor and Governor’s Offices,” she wrote, in her Get it Done: Michigan Sunshine Plan.
She didn’t.
Instead, in 2019, Whitmer signed an executive order requiring state agencies to appoint one of their employees to a new post called, not kidding here, “transparency liaison.”
Sounds like an oxymoron — as in jumbo shrimp, sweet sorrow or same difference.
Also in 2019 (and revised in 2021) an internal memo shows Whitmer’s legal advisers asked to review her office’s communications with other state departments that are subject to FOIA.
Department heads were told to, among other things, share with Whitmer’s office “any FOIA response that could generate a media story now or in the future,” according to the memo.
“Obstructionist is the word that comes to mind,” Lisa McGraw, of the Michigan Press Association, told Bridge Michigan.
Could have, should have
Whitmer could have signed an executive order opening her office and perhaps the Legislature, too, to FOIA.
I know that because I asked her chief legal mind, Michigan Attorney General Dana Nessel, that very question.
In April 2023, Nessel visited Traverse City for an Open Meetings Act town hall, where she discussed government transparency and answered questions from the audience.
The event was sponsored by the Michigan Press Association and the Traverse City Record-Eagle.
“The people deserve to know what we are doing and how we are doing it,” Nessel told the audience, who packed the McGuire room at the Traverse Area District Library.
I asked whether it was true that Gov. Whitmer could expand FOIA by executive order.
She could, Nessel said, but the Whitmer administration preferred to have the Legislature make this change, so it could be permanent and apply to future administrations.
A nice dream.
Elizabeth Ridlington, the policy analyst, told me that when Michigan’s FOIA was passed in 1976, it was the strongest such law in the nation.
Not anymore.
In 2015, the Center for Public Integrity in a study asked U.S. residents, “How does your state rank for integrity?”
The Center’s investigation used extensive research to grade all 50 states based on the laws and systems in place to deter corruption.
Michigan got an F and ranked 50 out of 50.
By now maybe you’re asking yourself: What else is slithering around in a half-century of Michigan’s off-limits file cabinets?
Even the proposed FOIA “fix” wouldn’t have disclosed that. It wasn’t going to be retroactive.
Somewhere there must be a silent scream – I mean “transparency liaison” – you can ask about it.
Note: As of Jan. 8, McBroom and Moss re-introduced their FOIA “fix” bills.