Whitmer order easing transparency law draws scrutiny

Craig Mauger
The Detroit News

Lansing — With a lawsuit and looming oversight hearing, angst is growing over Michigan Gov. Gretchen Whitmer's decision to relax a transparency law during the COVID-19 pandemic that's seen government wield increasing power.

Sen. Ed McBroom, R-Vulcan, who chairs the Senate Oversight Committee, said his panel will "soon" hold a hearing on Whitmer's April 5 executive order. The order gave government agencies in the state the ability to delay answering requests for public records if coronavirus response efforts interfere.

Meanwhile, a Saginaw County civil rights attorney is challenging the order in court. He says the order is being used at all levels of government to delay the disclosure of documents.

The Michigan Department of Health and Human Services delays responding to a Detroit News Freedom of Information Act, citing an executive order that allowed for such delays.

Asked Monday how widespread the use of the order is across the state, the attorney, Philip Ellison of Hemlock, responded with one word: "vast." Following the normal deadlines of the Freedom of Information Act "is now the exception rather than the rule," he said.

"The times of crisis are when people need access to the best information possible," Ellison argued. 

But supporters of Whitmer's order counter that government agencies need flexibility during the pandemic, which has stretched operations and forced many employees to work from home.

Whitmer's spokeswoman, Tiffany Brown, said the order wasn't a blanket suspension of the public records law. The order featured "very limited exceptions" and asked agencies to respond to requests "as swiftly as possible and, to the extent they can, by using electronic means."

"If departments claim they don’t need to respond by June 4, our office will look into it and make sure the order is correctly followed," Brown said.

Gov. Gretchen Whitmer speaks about the spread of COVID-19 in Michigan during a press conference in Lansing on Thursday, March 26, 2020.

Groups that represent local government agencies in Lansing have supported Whitmer's order.

"We thank Gov. Whitmer for these modest changes to the state’s important public records acts and commit to returning to full compliance with the act when the executive orders are lifted," said Dan Gilmartin, executive director and CEO of the Michigan Municipal League.

Under current law, when a person requests a public document from a government agency in Michigan, the agency has five business days to respond to the request.

The agency can grant the request — and later provide the documents — deny the request or delay a decision for up to 10 additonal business days.

Whitmer's April 5 order allows agencies to delay providing a response until as long as June 4 if COVID-19 efforts, "including but not limited to compliance with any emergency order or mitigation recommendations related to COVID-19," interfere.

The Michigan Department of Health and Human Services, the main state department handling COVID-19, has responded to some requests but has delayed others until June 4, the date allowed in the order.

On April 11, The Detroit News requested the department provide a list of COVID-19 cases at individual nursing homes or skilled nursing facilities in the state. Nine days later, the department delayed providing a response until June 4.

"Due to the department’s COVID-19 public health response efforts, your FOIA request will not be processed at this time," the department said. "Pursuant to Gov. Whitmer’s Executive Order No. 2020-38, FOIA requests may be deferred when COVID-19 response efforts, including compliance with emergency orders and mitigation recommendations, interfere with the timely processing of FOIA requests."

On Friday, however, the state began providing a listing of cases at nursing homes through the department's website. Other government agencies are also delaying at least some requests for records under the order.

For instance, Michigan Department of Treasury occasionally needs "additional time" to fulfill some requests, spokesman Ron Leix said. The department has a goal of fulfilling requests within the law's timelines, he said.

"Unfortunately, the FOIA process is not a completely paperless process, creating some challenges due to records not always being available electronically and most staff members working remotely during the COVID-19 pandemic," Leix added.

Ellison said Whitmer's order could have been drafted more narrowly than it was.

His lawsuit is pending in the Michigan Court of Claims. It argues that the executive order on records requests is "not a reasonable order" under state law.

"At times of emergency, timely and meaningful access to government-held information and records of decision is at its highest and suspension and limitation of the same is not reasonable and outside the scope of the authority under Michigan law," the lawsuit argues.

Tony Daunt, executive director of the conservative Michigan Freedom Fund, said the governor's order seems to provide wide leeway for potential abuse. The order has become particularly important after the state chose a company with connections to Democratic candidates to help with contact tracing COVID-19 cases, Daunt said.

The Whitmer administration later decided to change vendors. But critics want to know what led to the initial contract.

Robin Luce Herrmann, an attorney with Butzel Long and general counsel to the Michigan Press Association, said the circumstances with Michigan's open records law "are not ideal." But she said Michigan's emergency changes to the Freedom of Information Act are not as bad as changes in other states.

In Hawaii, for example Gov. David Ige suspended the state’s public records and open meetings laws, says the Honolulu Star-Advertiser.

MuckRock, a nonprofit news organization, says Michigan is one of 11 states that "have issued executive orders or legislation to suspend request deadline requirements" during the pandemic.

“I would hope that public bodies would not use current circumstances as an excuse to deny the public information," Luce Herrmann said. "I think that Gov. Whitmer has made it clear that she didn’t think they should do that either.”

State Sen. Ed McBroom

McBroom, the chairman of the Senate Oversight Committee, said his panel has begun preliminary work of looking into the executive order on public records. McBroom said he would like to have a "robust debate" over whether changes to the Freedom of Information Act should be allowed.

During times of crisis, he said, it is essential that people can hold government accountable.

"And FOIA is one of the best tools for doing that," McBroom said.

Regardless of the emergency, Michigan is one of two states that wholly exempt the governor's office and Legislature from open records laws.