How the pandemic shined a light on deficiencies in Michigan’s FOIA law

click to enlarge Lansing State Capitol Building in Michigan under the cover of darkness. - McKeeDigital, Shutterstock
McKeeDigital, Shutterstock
Lansing State Capitol Building in Michigan under the cover of darkness.

On a bright day in late June, I sat at my desk staring at an invoice that had just been delivered to me. As my eyes drifted to the bottom of the page, I blinked: $284,541.48.

The invoice was not for any of the usual things one might expect to cost over a quarter of a million dollars — it was not for a destination wedding, a new home, or tuition at a private university. Rather, it was for a Freedom of Information Act (FOIA) request I had submitted to the Michigan Department of Health and Human Services (MDHHS) seeking two months of communications related to a short-lived $9 million government-funded field hospital set up at Detroit's TCF Center in the early months of the pandemic.

Although the fee was the highest I'd seen yet for a single FOIA request, it was not the first time I'd been quoted an exorbitant fee by the State while seeking government information related to the pandemic. Since January, I've received invoices from state agencies — mostly MDHHS — ranging from no fees for what amounted to relatively useless information to $37,590.00 for over a year's worth of communications and data related to COVID-19 policymaking.

Being unable to afford access to government documents confirming or repudiating the veracity of speculations in an age of rampant misinformation had made accurate, in-depth reporting challenging (if not impossible), and one potential story after another was derailed by fees that neither local nor national outlets told me they could cover.

As I learned while reporting this story, I wasn't the only journalist in Michigan that had experienced obstacles or fallen victim to the law's deficiencies while trying to access public information under the FOIA amid the pandemic — and, unless something changed, I likely wouldn't be the last.

‘A lack of trust’

"The law is there because there was a lack of trust. Most [state] FOIA laws happened after Watergate," says Lisa McGraw, public affairs manager for the Michigan Press Association, an industry association that advocates for press freedom and government transparency.

At the federal level, the FOIA was adopted in 1966 in the wake of a deeply paranoid and misinformed era of McCarthyism after the law's chief architect, U.S. Rep. John E. Moss, a California Democrat, became the target of baseless smear tactics. As a result, he'd made it his mission to give the public access to credible government records under the law. Nearly a decade later, in 1974, Congress amended and strengthened the law in response to the Watergate scandal.

Shock waves from the scandal had rippled across the nation, shaking public trust in government. In an effort to restore that trust, Michigan adopted its own FOIA law in 1976, legally ensuring citizens' access to government information at the state level for the first time in history.

Since then, McGraw says complaints about long delays, exorbitant fees, denials, and a general lack of organization have become common — and came front-and-center for journalists in the state working to access information under the FOIA during the pandemic.

"The [problem] we went through with COVID was the school kids — just getting the most basic number data, like how many kids today had to go home from the school district," McGraw recalls.

Last August, as parents, students, and educators struggled to understand the safety of in-person learning as they prepared for a new school year amid an unrelenting pandemic, MDHHS declined to identify 14 school-related outbreaks, later citing shortcomings in the state's tracking systems. (At the time, school-related outbreaks still weren't required to be publicly reported by schools or health departments.)

In Michigan, the current FOIA requires agencies to respond to requests within five days, but also allows for an additional 10-day extension. The law provides no specific timeline for the delivery of requested documents after an agency's initial determination, however. After local health departments also failed to publicly identify the outbreaks in a series of delays and extensions under the FOIA that rendered the requested outbreak data too old to use, MPA joined a coalition of more than 30 media outlets and organizations demanding access to the data. In an open letter to the governor last September, the coalition addressed the dangers of long request delays during a health emergency, noting, "Media organizations are filing FOIA requests, but this is no time for drawn-out transparency battles."

Two weeks later, MDHHS finally identified the schools. At the end of that month, Gov. Gretchen Whitmer and MDHHS also created new rules requiring school districts to post data about school-related COVID cases online. The underlying FOIA issues, though, remained.

"COVID was a great example of the worst of the process of trying to get information — the data behind why we were closed down, or why we were opening back up, or why we had to wear masks. Even the Legislature couldn't get that information," McGraw says.

‘Flying blind’

Perhaps no journalist in Michigan became more familiar with the challenges of accessing information during the pandemic than Charlie LeDuff, a Pulitzer Prize-winning reporter who noticed something strange while reviewing the state's death statistics last winter.

"When the spike happened in the winter, all of a sudden this asterisk starts showing up in the vital records death search," LeDuff recalls. "I said, 'Well, what the hell does that [asterisk] mean?'"

After learning that the asterisks were related to COVID-19 deaths but no other quantitative demographic data was publicly available, LeDuff had questions.

Hoping to finally get to the bottom of the state's hotly-debated "regional hub" nursing home policies, which were in place between April and late September last year before shifting in October at the recommendation of a Whitmer-appointed task force, LeDuff filed a FOIA request with MDHHS in January.

LeDuff's request asked for COVID mortality data from December 2020 including the deceased's date of death, age, location of infection, and race (an analysis of limited federal data by the Kaiser Family Foundation last October found that "64% of nursing homes with a high share of Black residents reported one or more death, as compared to 35% in nursing homes with a low share of Black residents" in Michigan, raising important questions about potential racial disparities among the deceased).

MDHHS sent LeDuff a link to the state's COVID dashboard but denied his request for more specific demographics, citing privacy and vital records exemptions. But even after LeDuff revised his request, MDHHS refused to provide the statistics.

Ultimately, LeDuff sued MDHHS for the data under the representation of the Mackinac Center Legal Foundation. That suit, filed in March on the basis of FOIA violations, ended in May. As part of the settlement, MDHHS certified that the requested records did not exist but provided LeDuff with the limited data it had.

That data was surprisingly incomplete. Due to inadequate tracking, the agency was unable to provide the full set of requested information. While the FOIA lawsuit hadn't resulted in all of the information LeDuff had been seeking, it revealed something else — a failure by the state to implement careful tracking of COVID cases and deaths among the state's most vulnerable population.

"They admit they were counting and then they stopped counting ... because they said it was too time-consuming. That's the conversation that comes out of the lawsuit ..." LeDuff says. "COVID is real. We know it attacks the elderly and the infirm. ... We shut down the economy, shut down the schools, to protect the elderly and infirm. And you didn't [track] the data?"

A Deadline Detroit analysis of the limited data following the settlement found deaths in Michigan long-term care facilities may have accounted for at least 44% of the state's total COVID deaths, exceeding the national average. In a June testimony before the House Oversight Committee, MDHHS Director Elizabeth Hertel acknowledged some of the numbers "could be low."

“COVID is real. We know it attacks the elderly and the infirm. … We shut down the economy, shut down the schools, to protect the elderly and infirm. And you didn’t [track] the data?”

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Although the DOJ recently dropped its identical probes into the handling of COVID in nursing homes in Michigan, New York, and Pennsylvania that began last summer, the data resulting from LeDuff's FOIA lawsuit spurred an upcoming review by the state's auditor general seeking clarity about the numbers.

Still, LeDuff is troubled by the fact that it took a lawsuit to obtain COVID death statistics under the state's FOIA. He stresses the importance of access to public information and says a lack of transparency can negatively impact the public's ability to make informed choices.

"The public can't make a good decision if they're flying blind," LeDuff says, adding that he's "proud" of having fought for the data under the FOIA alongside the Mackinac Center.

Metro Times reached out to MDHHS for an interview or statement about common issues with the FOIA and the LeDuff settlement. In response, public information officer Lynn Sutfin sent instructions for how to file a FOIA request with the agency, adding that MDHHS has "processed over 3,951 FOIA requests so far this year and 3,021 subpoenas with a staff of five. In 2020, we processed over 3,600 FOIAs and 4,200 subpoenas, which included 30,000 emails that needed to be reviewed."

MDHHS did not respond to our follow-up email.

Same problems, different year

Despite the extraordinary circumstances of the pandemic, experts say challenges to accessing information in Michigan under the FOIA are nothing new.

"COVID and the pandemic really helped to highlight some of our [FOIA] deficiencies, but they weren't the cause of them — they've existed for awhile," says Steve Delie, executive director for the Michigan Coalition Open Government and policy lead on transparency issues at the Mackinac Center for Public Policy, a free-market think tank whose work focuses on transparency and economic issues. (Disclosure: Delie reviewed one of my FOIA requests to help reduce its fees.)

As an attorney that previously represented state governments and now advocates for transparency, Delie has seen the FOIA in action from every angle.

"I've seen a lot of the same techniques over time used to kind of hinder [FOIA requests]," Delie says.

In addition to exorbitant fees and long delays, Delie says excessive redactions are also a common issue. While he acknowledges there are legitimate uses of redactions, like protecting the privacy of citizens, he says they can sometimes be applied too liberally — potentially obscuring information citizens may have a right to review.

"Oftentimes when we seek records, we'll see entire pages of blacked-out text, or there will be a blacked-out sentence of an email," Delie says, adding that it can be difficult for laypeople to know whether those redactions have been applied appropriately under the law's exemptions.

Delie says enforcement of the FOIA can also sometimes be a problem for requesters that don't have money to risk on litigation if they lose their case and have to cover the costs. Even when a public body is found guilty of violating the FOIA in court, though, the law's penalties for noncompliance sometimes still aren't enough for larger entities to take them seriously. Delie says updating the FOIA to include financial penalties that correspond with an entity's size and budget could help make them take requests more seriously.

"I think the overall issue is a culture of noncompliance ..." Delie says. "It's really a matter of our public bodies looking at these records requests as either a burden or as a potential avenue to make them look bad — and that's not the purpose of FOIA."

A path to more transparency

In early April of last year, an executive order issued by Gov. Whitmer suspended portions of Michigan's public record laws, allowing for longer delays for requests in response to the pandemic. Records requests submitted by mail, email, and electronically were impacted by the decision, which remained in effect until June when the law was restored after outcry from the press.

"I did join colleagues on the other side of the aisle to ensure that there were no FOIA delays," says state Sen. Jeremy Moss, an Oakland County Democrat and a longtime advocate for open government. "Even during an emergency, people should still have access to information that is sought."

Although Moss says he is unfamiliar with many of the FOIA issues that occurred during the pandemic and that no journalists reached out to him during that time, he's still deeply familiar with the problems the state's FOIA has created for years for citizens and journalists seeking government information under the law.

From investigations into the alleged misuse of taxpayer resources by former state representatives Todd Courser and Cindy Gamrat in 2015 to revelations the following year about members of former Gov. Rick Snyder's legal counsel allegedly using exemptions in the FOIA to circumvent public access to emails related to the Flint water crisis, the need for better transparency in Michigan has been apparent for years.

"If the State of Michigan doesn't treat [the FOIA] seriously, then what would really compel local units of government to treat it seriously?" Moss says. "I think that's part of the reason why Michigan ranks dead last in accountability, transparency, and ethics according to the Center for Public Integrity. In all 50 states, we're 50th out of 50 in those metrics because we don't put a priority on serving the public in that way."

One of the bigger obstacles Moss says he's observed over time is the fact that Michigan is one of only two states where the governor's office is not subject to FOIA requests (Massachusetts is the other), and one of eight states where the Legislature also isn't.

Since 2016, Moss has fostered a partnership with an unlikely ally — Republican state Senator Ed McBroom. The two began working together when they both served in the House, drafting a package of bills called the Legislative Open Records Act (LORA) that would make the governor, lieutenant governor, their staff, and Legislature subject to the state's FOIA.

After countless delays over the years caused by previous Senate leaders' refusals to consider the bills and, more recently, the onset of the COVID-19 pandemic and investigations into false claims of election fraud, Moss says LORA is finally being considered on the Senate floor this year. Though the package won't help provide access to data from the pandemic (the law would only apply to information created after January 1, 2022), Moss says it's a good place to start.

"We have a culture here in the state of Michigan that we do not provide information to residents upon request, whether or not you're compelled to do so in law or you're written out of the law," Moss says. "So I think what we're trying to do here is put a pressing priority [asking] who is this government meant to serve? I firmly believe it's meant to serve the citizens. And citizens requesting information and receiving that information, to me, is a core function of government."

Although Moss admits the current reforms that are on the table won't fix everything that's wrong with the state's FOIA laws — including the exorbitant fees that can sometimes deter citizens and journalists from accessing information — he says it's the furthest LORA has gotten in all the years he and McBroom have been working for more government transparency.

"I fully acknowledge, right now, there are problems with the FOIA as it exists," Moss says. "What I'm trying to do is get everyone under the same framework. But our work right now is a floor, not a ceiling ... I think that's one of our future projects, to make sure that FOIA cannot be weaponized by the government, either."

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