The largest overarching change proposed by the amendments is the creation of the Open Government Commission. The Commission would be an independent body made up of FOIA experts that could largely replace the courts as the decisionmaker on most FOIA issues.
The Commission would be made up of nine members. Four members would be appointed by the Legislature, with majority and minority party leadership each afforded two appointees. The governor appoints five members, with three of those resulting from recommendations by the Michigan Commission on Open Government, the Michigan Press Association and the Michigan Broadcasters Association. These organizations are on the front lines of issues with the application of FOIA. Appointments would be four-year, staggered terms.
To preserve the Open Government Commission’s political independence, its members are politically insulated. They can only be removed for incompetence, dereliction of duty, malfeasance, misfeasance or nonfeasance in office. Legislative majority and minority leadership must agree to remove a member.
The Commission would be subject to both the Open Meetings Act and FOIA, with a minor carve-out allowing for closed sessions to discuss information that is purported to be subject to an exemption. In performing its duties, the Commission may receive unredacted records in order to evaluate whether an exemption was properly applied, and the unredacted records under its care are not subject to FOIA.
Commissioners would serve without compensation but would receive a per diem. Members would have all of the powers of a court for FOIA appeals but would also play an additional role of recommending improvements to FOIA and offering annual training to FOIA coordinators to promote best practices. As written, the Commission would have discretion as to which cases it accepts, to avoid being overwhelmed.