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Judge: There was no authority for secretive Flint order

Jennifer Chambers
The Detroit News

Detroit — A Genesee County judge who issued a confidential protective court order limiting state agencies access to Flint health data had no authority to do so, a Michigan Court of Appeals judge said Wednesday.

Court of Appeals Judge Elizabeth Gleicher made the comment during oral arguments on a court order issued by 7th Circuit Judge Geoffrey Neithercut as part of Attorney General Bill Schuette’s criminal probe of Flint’s lead-tainted water crisis.

The order restricts the ability of the state departments of health and environment to access patient information and directs the county health department to instead contact the federal Centers for Disease Control and Prevention for help investigating lead contamination or cases of deadly Legionnaires’ disease.

“You are telling officials in Genesee County how to do their work. What authority did Judge Neithercut have to do that? (An investigative subpoena) is not going to cut it. In my view, there was no authority,” Gleicher said.

Appeals court judges Kirsten Kelly and Douglas Shapiro were also on the panel, peppering attorneys for the state, the judge and a hospital with questions on the order.

The county had an outbreak of Legionnaires’ disease that killed 12 people and sickened 91 during the summers of 2014 and 2015.

On Wednesday, Gleicher said there is no paperwork, petition or motion in the file for Neithercut’s order — which is numbered 00-0000AZ — and there is no record of conversations from Neithercut’s chambers on what led up to the order being issued.

Attorney Janet Napp, a special assistant for the state attorney general, told the panel of judges there was an ongoing criminal investigation into Flint’s water crisis, and there was concern of criminal activity within the state departments.

“That’s absurd,” Gleicher told Napp. “My understanding is that state officials said: ‘We don’t want to give out any information due to civil liability.’ ”

Schuette, who has charged multiple state employees with alleged crimes for their roles in the crisis, has defended the court order as an appropriate measure.

Gleicher asked Napp how allowing state departments to do their jobs or allowing state officials to obtain medical records from McLaren-Flint Hospital would impair Schuette’s investigation.

Napp responded: “You don’t know what you don’t know until you find out.”

Gleicher then said: “This is frightening to me that a special prosecutor ... has no paper trail and has come here to try to defend that conduct.”

Todd Flood, the special prosecutor hired by Schuette to investigate how the city’s water became contaminated with lead, did not respond for comment Wednesday.

Timothy Winship, representing Neithercut in court on Wednesday, said an investigative subpoena issued in the criminal case is connected to the order.

The judges asked Winship where the subpoena was in the court file since it was not part of the record. Winship said he did not know.

Gleicher also asked Winship which part of Michigan Court Rules applied in the case that allowed the order to be issued with no paperwork in a court file and for attorneys to discuss the order in chambers, outside public view. Winship didn’t respond to the question.

Darrin Fowler, attorney for the Michigan Department of Health and Human Services, said investigating medical records was only one piece of the case.

“The department is also asking for information to ensure the safety of current patients was being addressed in its current infection program,” Fowler said.

The injunction order is much broader, Fowler argued, saying it prevents state health officials from investigating any leads in lead or other water issues.

“There are 16 new reports (of Legionnaires’) in 2016 that we can’t investigate,” Fowler said. “Right now, an important piece of the public health system is missing in a community that needs it more than any other.”

Attorney Brian MacDonald, representing McLaren-Flint, said the Genesee County Health Department and the CDC were inside McLaren for three days earlier this year gathering medical records and information.

“They did everything they needed to do. It’s done, and it’s been done,” MacDonald said.

Kelly asked MacDonald what authority the judge had to issue the order when there are no facts and no record in the case file for the order.

MacDonald said officials with state Health and Human Services want to say that McLaren — not the city of Flint water system — was the source of infection for Legionnaires’, a respiratory disease contracted through the spread of Legionella bacteria.

According to a team of scientists investigating the city’s water issues, it’s nearly certain the use of the Flint River as a municipal water source caused the outbreak of Legionnaires’ disease in 2014 and 2015.

Conditions created by switching the city to the river water without adding proper corrosion controls in April 2014 created a perfect environment for the deadly Legionella bacteria to thrive, Virginia Tech Professor Marc Edwards said earlier this month.

In September, Neithercut amended the order, with his attorneys saying in a public filing that because Schuette and his team filed criminal charges against employees in both state departments as part of a probe, “it would be highly inappropriate to give plaintiff access to all the information involved in the investigation into plaintiff’s employees, under the guise of trying to protect public health. Doing so would compromise the integrity of the ongoing investigations.”

The Michigan Department of Health and Human Services, acting at Gov. Rick Snyder’s behest, took its case to the Court of Appeals in May, asking it to intervene while arguing the protective order prohibits the state from fulfilling its duty to fully participate in Legionella investigations.

The legal spat over the protective order between the Snyder administration and Schuette’s Flint team has come as the attorney general’s investigation has reportedly honed in on the Legionnaires’ outbreak in Genesee County.

Neithercut first granted a protective order restricting state department access to Flint health data in June. The order was twice amended.

Attorneys for the U.S. Department of Health and Human Services also are asking the appeals court to lift the order, saying it threatens the federal government’s ability to respond to the city’s water contamination crisis and “puts the public’s health at risk.”

They filed a court brief requesting permission to join the case even though it’s not party to the order.

JChambers@detroitnews.com