Michigan SOS must release documents on deal with pro-Whitmer group, court says

Craig Mauger
The Detroit News

Lansing — Michigan Secretary of State Jocelyn Benson's office must release more internal records on how it handled campaign finance violations by a group that backed Gov. Gretchen Whitmer's election in 2018, a court decided Wednesday.

Court of Claims Judge Christopher Murray ruled the Democratic secretary of state's office had improperly withheld some documents in response to a public records request by the conservative watchdog group Michigan Rising Action.

The ruling could shed additional light on the behind-the-scenes discussions that led to Build a Better Michigan agreeing in 2019 to a $37,500 settlement for its violations, a total that many Republicans argued was far too small because the group had spent more then $2 million on TV ads promoting Whitmer, at the time, a Democratic candidate for governor.

An ad from Build a Better Michigan features Democrat for governor Gretchen Whitmer

In his ruling, Murray ordered the Secretary of State's office to produce a "significant number of additional documents" and awarded reasonable attorneys' fees to Michigan Rising Action for having to bring its suit.

"Although defendants’ arguments were made in good-faith and were reasonable, they for the most part did not succeed," Murray wrote of the Secretary of State's office.

Build a Better Michigan's ads were intended to be "issue advocacy," meaning they weren't supposed to endorse the Democrat's election and were meant to fall outside of state campaign finance reporting requirements.

But some of the ads violated the law by specifically identifying Whitmer as a “candidate for governor,” the Secretary of State's office found, meaning they should have been reported as campaign finance expenditures.

The original person listed on Build a Better Michigan's federal filings was Mark Burton, who went on to become Whitmer’s chief strategist.

Michigan Rising Action filed a Freedom of Information Act request for documents related to the settlement agreement in November 2019. The Secretary of State's office cited disclosure exemptions dozens of times in holding back some of the requested records, leading to the lawsuit.

"The court's ruling is a positive step to help tear the curtain back on the secret deal between Benson and Whitmer," said Tori Sachs, the former executive director of Michigan Rising Action. "Michiganders deserve the truth."

Among the documents that will have to be produced are communications between the law firm that represented Build a Better Michigan and Secretary of State personnel. The Secretary of State's office had argued that those messages fell within a disclosure exemption that protects "frank communication" between officials within public agencies. The communications don't fit the exemption because they weren't between or within public bodies, Murray wrote.

The Secretary of State's office will also have to produce draft conciliation agreements with Build a Better Michigan, according to Murray's ruling.

It's unclear when the documents will be released. The Secretary of State's office didn't immediately respond to a request for comment.