Capital Closeup: For legal and practical reasons, disclosure laws exempt some legislative work

Earlier this year, to coincide with an open-government initiative known as Sunshine Week, reporters from the Associated Press sent requests for the records of legislative leaders in all 50 states. They asked for lawmakers’ daily schedules as well as emails from their government accounts. In most cases, AP reported in March, its reporters came away empty-handed, as they ran into more denials for the requests than approvals.

This right to deny access to certain records is a long-standing, widespread prerogative of legislators in states across the country — the result of a mix of constitutional language and principles, statutory language, and legal opinions.

This year, for example, Indiana Supreme Court justices ruled that while the state’s Access to Public Records Act applies to the legislature, they could not intervene in a dispute over public records because of “Indiana’s express constitutional separation of powers.”
In the specific case, a clean-energy think tank sought copies of correspondence between a legislator, legislative staff and various business organizations. That request was denied by the legislature. Under Indiana statute, the “work product of the General Assembly and its staff” does not have to be disclosed, and the state’s highest court ruled that the legislature has the constitutional right to determine for itself what falls under “work product.”
Distinct rules for state legislators
There are other reasons for keeping the records of individual lawmakers private. One is that while legislatures themselves may be “public bodies” covered under open meeting and records laws, individual legislators are not. Furthermore, these legislators need some relief from the sunshine statutes in order to openly and frankly discuss policy proposals among themselves and with constituents.
State statutes or internal legislative rules often reflect this view, with language that exempts records of communication among lawmakers and legislative staff about proposed bills. But at the same time, there is clamor among the press (and, at times, the public) for state legislatures and their members to be more open.
In Michigan, for instance, the Detroit Free Press has called for ending the current exemption extended to the Legislature and governor under the state’s Freedom of Information Act. The latest legislative attempt in that state to address concerns about public access and open government is a 10-bill package introduced in March.
“We’ve worked for a year on this, and what we’ve tried to do is come up with a solution to transparency, but with legislation that also withstands court and constitutional scrutiny,” explains Rep. Ed McBroom, a sponsor of one of the measures.
The new proposal would create a new Legislative Open Records Act (LORA). Under the law, McBroom says, legislators would have to make available their daily calendars, as well as communication between a legislator’s office and state executive agencies about a constituent. (Personal information about the constituent, though, would not have to be disclosed.)
Language in the new proposal mirrors much of that in the state’s existing Freedom of Information Act. However, important exemptions are made for lawmakers and the work they do — for example, “communications, including any related records or information, between a legislator’s office and a constituent … other than a person required to be a registered lobbyist” would not have to be released.
Exemptions are also extended to the records of party caucuses and internal legislative investigations, while rules adopted by the House or Senate could keep certain information from being disclosed. And disputes over legislative disclosure would not be subject to judicial review. Instead, final determinations would be made by the administrator of the nonpartisan Legislative Council. 
For LORA to become law, enough Michigan legislators will have to be convinced that it strikes the right balance between open government and protection of the lawmaking process. In his discussion with legislative colleagues, McBroom has found that they want to be transparent; most concerns about LORA instead tend to center on saddling legislative staff with the task of tracking and responding to more requests for open records. 

 

Capital Closeup is a regular series of articles produced by CSG Midwest that highlights institutional issues in state governments.
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Stateline Midwest: May 20162.42 MB