Section 10c: MCL § 15.240c – Open Government Commission
(1) The Michigan Open Government Commission is hereby created as an independent executive agency.
(2) The Commission shall consist of 9 members appointed as follows:
(a) 1 appointed by the Senate Majority Leader.
(b) 1 appointed by the Senate Minority Leader.
(c) 1 appointed by the Speaker of the House.
(d) 1 appointed by the House Minority Leader.
(e) 1 appointed by the Governor from recommendations by the Michigan Association of Broadcasters.
(f) 1 appointed by the Governor from recommendations by the Michigan Press Association
(g) 1 appointed by the Governor from recommendations from the Michigan Coalition for Open Government.
(h) 2 appointed by the Governor.
(3) The members first appointed to the Commission must be appointed within 60 days after the effective date of this section.
(4) Members of the Commission shall serve for terms of 4 years or until a successor is appointed, whichever is later, except that for members first appointed, 3 shall serve for 1 year, 2 shall serve for 2 years, and 2 shall serve for 3 years:
(a) For members appointed by the Michigan Association of Broadcasters, Michigan Press Association, or Michigan Coalition for Open Government, the members first appointed shall serve for 1 year.
(b) For members appointed by the Governor, the members first appointed shall serve for 2 years.
(c) For members appointed by the majority and minority leaders of the Legislature, the members first appointed shall serve for 3 years.
(5) If a vacancy occurs on the Commission, the vacancy must be filled in the unexpired term in the same manner as the original appointment.
(6) The senate majority leader, senate minority leader, house majority leader, and house minority leader, acting in agreement, may remove a member of the Commission for incompetence, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office.
(7) The first meeting of the Commission must be called by the Governor no later than 90 days after the effective date of this act. At the first meeting, the Commission shall elect from among its members a chairperson and other officers as it considers necessary or appropriate. After the first meeting, the Commission shall meet at least monthly, or more frequently at the call of the chairperson or if requested by 3 or more members.
(8) A majority of the members of the Commission constitute a quorum for the transaction of business.
(9) The business that the Commission performs shall be conducted at a public meeting held in compliance with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275. The Commission may meet in closed session to deliberate on the merits of an asserted exemption, exclusion, or privilege from disclosure for a writing. Notwithstanding any provisions of the open meetings act, MCL 15.261 et seq., the Commission is permitted to conduct meetings electronically.
(10) A record prepared, owned, used, in the possession of, or retained by the Commission in the performance of an official function is subject to this act. Unredacted records provided to the Commission for purposes of appellate review are not subject to disclosure under this subsection.
(11) Members of the Commission shall serve without compensation. Members of the Commission may be reimbursed for their actual and necessary expenses incurred in the performance of their official duties as members of the Commission.
(12) In addition to any other duties prescribed by this act, the Commission may do all of the following:
(a) Receive complaints from requestors regarding responses to requests for information under this act.
(b) In response to a citizen complaint, investigate a public body’s policies regarding Freedom of Information requests.
(c) In response to a citizen complaint, investigate a public body’s response to a citizen request under this act.
(d) In response to a citizen complaint and request for an opinion, investigate and issue an opinion that is binding and enforceable as to the public body and the person bringing the complaint absent appeal to the court, resolving the following issues concerning a request under this act:
(i) The amount of the fee authorized under this act.
(ii) The validity, applicability, or extent of any exemption or exclusion asserted.
(iii) View the documents that this act requires the public body to make available in response to the request. The Commission shall be empowered to review unmodified versions of all responsive records at issue in an appeal, in order to judge the appropriateness of any claimed exemption.
(iv) The timeliness of a public body’s response to a request, or the propriety of an extension of the deadlines taken for a response, as provided in this act.
(e) Hear appeals as provided in sections 10 and 10a of this act.
(f) Order a public body to pay fines, fees, or other monetary penalties as provided in this act, including, without limitation, the monetary penalties described by section 10b.
(g) Offer no less than annual training opportunities, to ensure FOIA coordinators are proficient in this act’s requirements.
(h) Notwithstanding the above, the Commission is empowered to investigate and hear cases it determines, in its discretion, warrant review, and is not required to issue an opinion on, or investigate, all complaints submitted to the Commission.
(13) The Commission may do 1 or more of the following:
(a) Recommend policies or remedial actions to a public body after investigating a citizen’s complaint.
(b) Recommend changes to this act based on information gathered in receiving, investigating, and responding to a citizen’s complaint.
(14) The statutory period for filing a court action under this act is tolled while an appeal is pending before the Commission.
The changes to this section create an intermediary third body designed to address FOIA matters. Under existing law, requestors that are not satisfied with a public body’s response have only two choices: appeal to the same public body that issued the unsatisfactory response or file a lawsuit. The first of these options is rarely successful, and the latter is an investment of time and money that few requestors can justify. The creation of the Commission, however, provides an alternative to litigation that can offer meaningful relief in a less expensive and more timely fashion.
- MCL § 15.240c(1): This amendment creates the Commission as a separate executive branch agency. This approach was taken to avoid the potential issue of the Commission being housed within an existing agency and then being asked to evaluate whether that same agency properly responded to a FOIA request. The Commission need not be made part of the executive branch to function, nor does it necessarily need to be considered a “department,” given its small size. The particular contours of the Commission’s legal existence can vary, so long as its core powers are retained.
- MCL § 15.240c(2) This amendment clarifies how the members of the Commission are to be selected. As written, the amendment ensures that the views of both Republicans and Democrats will be present on the Commission, but that the party in control of the governor’s office will be a majority of political appointees. In addition, representation is given to the views of those entities likely to be most familiar with FOIA in Michigan by permitting them to offer the governor potential candidates that will uphold the nonpartisan purposes of FOIA. This lessens the likelihood that the Commission will become a partisan body, which is a particular concern given that prior amendments subject both the executive and legislative branches to FOIA.
- MCL § 15.240c(3): This amendment ensures that appointing authorities cannot effectively disband the Commission by refusing to appoint commissioners.
- MCL § 15.240c(4): This amendment provides for staggered terms, to ensure that the entire Commission does not become vacant simultaneously.
- MCL § 15.240c(5): This amendment provides for the filling of vacancies as they occur.
- MCL § 15.240c(6): This amendment provides for the bipartisan removal of commissioners for cause. By requiring this process to involve both majority and minority leadership, commissioners cannot be removed for political reasons.
- MCL § 15.240c(7): This amendment provides for the initial meeting of the Commission, the process by which the Commission will select its officers, and the Commission’s regular schedule.
- MCL § 15.240c(8): This amendment provides quorum requirement for the Commission’s work.
- MCL § 15.240c(9): This amendment requires the Commission to adhere to the requirements of the Open Meetings Act. This increases transparency, which is the overarching goal of the Commission. Given, however, that the Commission will be charged with evaluating whether certain information is properly redacted under FOIA, it is necessary that the Commission be able to discuss potentially protected information in closed session. The Commission is expressly authorized to conduct meetings electronically, both to increase transparency and to permit the Commission to be more responsive in performing its duties.
- MCL § 15.240c(10): This amendment subjects the Commission’s records to FOIA. It also provides clarity that unredacted records in the Commission’s possession for the purpose of evaluating whether redactions were appropriately applied are not subject to disclosure. This prevents a requestor or third party from filing a FOIA request with the Commission during an appeal in order to obtain unredacted records currently under review.
- MCL § 15.240c(11): Realistically, the Commission can be structured in a variety of ways. As drafted, the Commission would be unpaid, and under proposed MCL § 15.240c(12)(H), have the discretion to accept or reject appeals. The ability to exercise discretion with respect to the appeals coming before the Commission is necessary in light of the Commission’s voluntary status.
An alternative approach, however, may be preferable. It is possible that providing commissioners a salary could make it easier to attract top talent to the Commission, particularly given the legal expertise that would be needed to fill the role of a commissioner.
Similarly, if the Commission were structured to be a body similar to a grievance commission, and properly staffed, it would be appropriate to remove the Commission’s discretion to reject appeals. Lawmakers interested in adopting these amendments should carefully consider whether it is better to have a less-active, less-impactful Commission that is only a minimal expense, or a more formal Commission structured essentially as a small state department that can take on a more expansive role.
- MCL § 15.240c(12): This amendment empowers the Commission to enforce the requirements of FOIA. This includes responding to complaints, investigating policies, hearing FOIA appeals, levy fines, and issue binding opinions as to whether a fee or redaction is appropriate, the timeliness of a public body’s response, the availability of records. The Commission is also empowered to act as a training entity, which is particularly valuable, since FOIA coordinators are not required to undergo any formal training by law. As stated above, MCL § 15.240c(12)(H) is necessary in light of the Commission’s voluntary nature — should the Commission be staffed and funded, such discretion may not be necessary (although it could be preserved if the Legislature determines that permitting this discretion will help the Commission be more effective).
- MCL § 15.240c(13): This amendment is largely geared toward promoting greater compliance with FOIA without the need for an appeal. By recommending policy changes to public bodies, the Commission can increase transparency by establishing clear expectations for a public body’s responses to FOIA requests. Further, as envisioned, the Commission will play a lead role in the evolution of Michigan’s FOIA law, and as such, is an appropriate entity to recommend improvements to the Legislature.
- MCL § 15.240c(14): This amendment clarifies that an appeal to the Commission pauses the statutory time limit for filing a FOIA lawsuit. This ensures that requestors are not forced to choose between an appeal to the Commission, or one to the courts.