Transparency watchdog urges review of Whitmer's order easing open records law

Craig Mauger
The Detroit News

Lansing — A former GOP attorney general for Nevada has asked Michigan lawmakers to review Gov. Gretchen Whitmer's emergency authority to alter the state's open records law.

The need for transparency "is essential while governments grapple with how to respond to the global pandemic brought about by COVID-19," wrote Adam Laxalt, the former Nevada attorney general and outside counsel to a watchdog group called Americans for Public Trust.

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.

Laxalt sent a letter to Michigan Rep. Matt Hall, R-Marshall, who chairs the Republican-controlled Legislature's new Joint Select Committee on the COVID-19 Pandemic.

"We urge the Joint Select Committee on the COVID-19 Pandemic to assist us in gaining transparency for all Michiganders," Laxalt wrote.

On April 5, Whitmer issued an executive order, allowing government agencies to delay responding to a request for public records until as long as June 4 if COVID-19 efforts interfere.

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 additional business days.

Groups that represent local governments have praised Whitmer's order amid a pandemic that has forced many employees to work from home, potentially complicating records requests.

Whitmer's spokeswoman, Tiffany Brown, has 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."

Laxalt said Americans for Public Trust submitted requests for state records related to a now canceled state contract for managing data for Michigan's COVID-19 contact tracing project. Whitmer, a Democrat, canceled the contract a day after it was announced when reporters began questioning the selected firms' Democratic ties. 

The group's requests for records "were immediately put on hold until at least June 4th," Laxalt said.

"By way of this executive order, Gov. Gretchen Whitmer has all but halted the release of public records; temporarily suspending statutorily required time limits within which state agencies must respond to FOIA requests," Laxalt wrote.

His group is asking lawmakers to the review the executive order that altered the transparency law and encouraging "the compelled production of records needed to inform the public about the now suspended contact tracing contract."

On Thursday, Attorney General Dana Nessel announced her office has opened an investigation into the contract at the request of Sen. Jim Runestad, R-White Lake.