22-03-2025
Michigan's FOIA law exemptions one of many transparency challenges in the state
During Sunshine Week open government advocates focus on closing gaps in transparency. In Michigan, that means hearing the familiar refrain to expand the state's public records law, but that's not the only way the public is left in the dark.
Here's a round-up:
Michigan's public records law stands out as a national outlier for exempting the governor and state lawmakers from its Freedom of Information Act (FOIA). Other public bodies in Michigan must comply with FOIA, from local law enforcement agencies to big state departments. Journalists and other government watchdogs routinely use FOIA requests to obtain records to investigate potential wrongdoing. For years, transparency advocates have called on Michigan lawmakers to take action to expand FOIA.
The Michigan Senate passed legislation in January to expand FOIA to the governor and state Legislature. House Speaker Matt Hall, R-Richland Township, called it a "watered down" FOIA bill during a Jan. 30 press conference. "So we're not going to pass that bill," he said. Instead, Hall has pushed for his own transparency plan which proposes several measures such as barring politicians from working as lobbyists immediately after leaving office. But Hall's plan does not propose expanding Michigan's FOIA law.
Michigan voters elect the justices for the Michigan Supreme Court. The Michigan Constitution requires justices to be chosen in a nonpartisan election. Before Michigan Supreme Court candidates land on the general election ballot, political parties nominate their picks at a convention. Michigan's political parties also nominate candidates for other offices at political conventions, including Secretary of State, Attorney General and university boards.
But candidates to serve on the Michigan Supreme Court are the only ones chosen by loyal partisans whose names appear in the nonpartisan section of the ballot. That can leave voters unfamiliar with the convention selections without information about the party affiliation of Michigan Supreme Court candidates.
Michigan's system for electing justices is unique. In some states, judges seeking election to higher courts run with party labels during their first bid but then seek additional terms in a yes/no retention election while some states have nonpartisan primary and general elections, according to William Raftery, Senior Analyst at the National Center for State Courts. Ohio recently shifted its process to require candidates to serve on the Ohio Supreme Court selected in a partisan primary to also appear on the general election ballot with their party label.
The Michigan Supreme Court received considerable pushback to a proposal that would require local judges to disclose additional financial assets. While judges are required to release some financial information in annual reports, the details are sparse, coming far short of comparable disclosures from federal lawmakers or other elected officials.
The proposed change as introduced to Michigan's Code of Judicial Conduct garnered opposition from several large groups, including the Michigan Judges Association and Michigan District Judges Association. Most of the criticism centered on privacy and safety, suggesting a requirement to disclose properties could imperil judges.
National advocacy organization Fix the Court applauded the offered changes, saying thousands of federal officials and judges in more than two dozen states are already subject to comparable disclosure requirements.
Almost every speaker opposed multiple components of the changes during a Wednesday hearing before the high court on the proposal. The court took no action, but could move to change the proposal again.
Finding out which Michigan attorneys face allegations of misconduct and possible disciplinary action requires a bit of a lift. The Michigan Attorney Grievance Commission investigates potential wrongdoing in a confidential process meant to protect lawyers from frivolous accusations. But once the commission authorizes the Grievance Administrator to file a formal complaint against a lawyer with the Attorney Discipline Board, the complaint and the rest of the disciplinary process becomes public.
Anyone can email or call the Attorney Discipline Board for the complaint and other public pleadings in the case, said the board's Deputy Director John Burgess in an email. Case documents aren't available on the board's website except for orders and notices of discipline and opinions. Asked how someone would know to reach out to the board to seek a complaint filed against an attorney that emerges from a confidential process, Burgess responded, "At this time, that is a question with no particularly great answer." He recommended reaching out to the Attorney Grievance Commission with a standing request to receive a notice of any complaint filed against a specific attorney, saying if the board provides notice of a complaint filed without first receiving a request it "could create the appearance of bias."
Hearings in disciplinary proceedings are public, but there is no public calendar. Burgess said notices of any hearings can be requested.
Michigan Politics: Michigan House approves Republican road funding package
At their best, Michigan's 15 public universities are centers of enlightenment, though not necessarily transparency.
They have fought and won in courts to shield from public view some of their actions.
When the Free Press sued the University of Michigan, arguing all its board meetings should be public, the Michigan Court of Appeals ruled in favor of the school.
"The Constitution permits defendant to hold informal meetings in private; defendant is only required to hold its formal meetings in public," the 2016 ruling said, noting that the schools have broad discretion to decide formal versus informal.
The Michigan Supreme Court let the decision stand by declining to hear an appeal on it.
"It's almost a joke," said Free Press legal counsel Herschel Fink, who litigated the case. "You could have a pro-forma meeting and basically take care of all the business in secret."
The surest way to open the process would be to ask Michigan voters to approve a constitutional amendment requiring the meetings be public, Fink said.
Contact Clara Hendrickson at chendrickson@ or 313-296-5743. Reach Dave Boucher at dboucher@ and on X @Dave_Boucher1. Contact John Wisely: jwisely@ On X: @jwisely
This article originally appeared on Detroit Free Press: Michigan transparency challenges from FOIA and beyond
