Push for former attorney general's emails hangs on Michigan's high court

Craig Mauger
The Detroit News

Lansing — A liberal group's legal fight about releasing Republican former Attorney General Bill Schuette's emails is either all about transparency or all about procedure, attorneys told the Michigan Supreme Court on Wednesday.

It also involves emails sent through private accounts by high-ranking officials in the Michigan Department of Attorney General whose existence is being debated.

The case focuses on Progress Michigan's push to reveal emails allegedly sent through personal accounts by members of former Republican Attorney General Bill Schuette's office.

GOP gubernatorial candidate / current attorney general Bill Schuette speaks to supporters.

The arguments took place 12 months after Schuette left office as attorney general and more than three years after the initial request for the emails.

Progress Michigan's attorney, Mark Brewer, former chairman of the Michigan Democratic Party, argued that state officials had improperly used procedural issues to block the group's efforts to access the messages.

"Unfortunately what we heard here this morning is what we hear from government defendants year after year, case after case, trying to create every possible procedural obstacle," Brewer told reporters after the court arguments. "Rather than just giving us the emails, they create all of these reasons why we can’t have them."

But the Department of Attorney General, which is now controlled by Democrat Dana Nessel, countered that Progress Michigan had failed to meet legal requirements in its push for the emails under the state's open records law, the Freedom of Information Act.

The emails the organization wants don't even exist, said Kyla Barranco, the lawyer representing the Department of Attorney General.

"At issue today is not whether personal email accounts used for official business are subject to the FOIA, they are,” Barranco told the seven justices, “or whether the state has an obligation to be transparent and provide information in response to FOIA requests, it does.

"Rather, at issue is how and when the state may be sued under the FOIA in the Court of Claims."

The origins of the case date to September 2016 when Schuette was still attorney general and when Progress Michigan sought 21 of his employees' emails "sent or received using a personal email account in the performance of any official function."

Schuette's office denied the request, saying it didn't have the requested emails.

The rejection eventually led to a lawsuit that was filed 174 days after the Department of Attorney General made its final determination on the request, according to court documents. But Progress Michigan's initial suit didn't include a verification document that attested to the validity of the allegations, which the attorney general's office argued was required.

Progress Michigan filed an amended complaint 219 days after the final determination was made on the group's request.

Barranco argued Wednesday in court that such a complaint challenging a Freedom of Information determination was required to come within 180 days of the determination under state law and Progress Michigan missed the deadline.

But Brewer countered that the procedural policies cited by the attorney general's office were improperly cited.

Justices asked the attorneys a wide variety of questions, touching on open records law and the implications of applying the 180-day deadline.

At one point, Justice Richard Bernstein asked Barranco what the harm was in simply turning over the documents.

Michigan’s Supreme Court on Jan. 1, 2019: L-R by row from top, justices Brian Zahra, Richard Bernstein, Megan Cavanagh, Elizabeth Clement, David Viviano, Bridget Mary McCormack and Stephen Markman.

People can sue the state only if certain conditions are met, Barranco said. Plus, she added that the documents don't exist, noting that some emails could have been legally deleted because they didn't touch on substantive matters.

Brewer and Progress Michigan contend the emails exist, citing copies of emails they've obtained from other sources allegedly showing Schuette's employees sending messages from personal accounts.

If the Supreme Court agrees that Progress Michigan's legal push for the emails should be allowed to advance, Brewer said he would be able to get written responses from state officials about their search for the emails and he would also be able to gather depositions.

There are criminal penalties for improperly destroying public records, Brewer added. Penalties can be up to two years behind bars or a fine of not more than $1,000, according to state law.