Flint Water Whistleblower, Mackinac Center Sue Wayne State Over Records Denials

A water treatment expert who was one of the first individuals to call attention to the issue of elevated lead levels in Flint’s water system is suing Wayne State University for not producing requested documents about one of the university’s professors.

Marc Edwards, a civil and environmental engineering professor at Virginia Tech University, was unable to receive a majority of the documents he requested on Wayne State Associate Professor of Civil and Environmental Engineering, Shawn McElmurry, and others. Edwards sought the documents in three open records requests he submitted to the university over the course of a year, between May 30, 2017, and March 3, 2018.

The lawsuit, which was filed on June 13, claims that Wayne State effectively denied his three FOIA requests by either not turning over documents in a timely manner, or, in the case of the final request, ignoring his request altogether. The lawsuit seeks to require Wayne State to provide all the documents sought in Edward’s three open records requests.

Edwards is questioning the qualification and actions of members of the university staff who were awarded $3.35 million from the state of Michigan to conduct research in the wake of the Flint water crisis.

McElmurry is part of a team of faculty from multiple universities, called the Flint Area Community Health and Environmental Partnership, investigating the situation in Flint. Edwards has essentially accused him of professional misconduct related to the criminal prosecution of two state officials related to the Flint water contamination disaster.

“This information is just critical to the public understanding of the legal battle between Wayne State employees and members of [the Michigan Department of Health and Human Services], and understanding if the individuals doing this multimillion-dollar project are qualified,” Edwards said.

Edwards is being represented by the Mackinac Center Legal Foundation in the suit. The Mackinac Center Legal Foundation and Michigan Capitol Confidential are both projects of the Mackinac Center for Public Policy.

“The law is clear: Michigan citizens have a right to an open and transparent government,” said Derk Wilcox, senior attorney with the Mackinac Center Legal Foundation. “Much of the information used to hold government accountable comes from FOIAs. When a government institution refuses to grant that information, they are standing in the way of complete transparency.”

Edwards was one of the first scientists to call attention to the elevated lead levels in Flint’s water after being contacted by Flint resident LeeAnne Walters. In September 2015, he led a team to study the water quality in the city. Edwards had previously drawn attention to elevated lead levels in Washington D.C.’s drinking water.

In January 2016, Edwards, as well as pediatrician and public health advocate Mona Hanna-Attisha, were appointed to Gov. Rick Snyder’s Flint Water Interagency Coordinating Committee.

On May 30, 2017, Edwards asked for communications related to the Flint water crisis between McElmurry and Wayne State University professors Paul Kilgore, Matthew Seeger and Marcus Zervos. After months of back-and-forth conversation with Wayne State, Edwards narrowed the scope of his open records request.

At the time the lawsuit was filed, Edwards had paid for the request but had only received a portion of the documents he requested.

On March 1, 2018, Edwards requested emails between McElmurry and Kasey Faust, assistant professor at the University of Texas at Austin; National Science Foundation proposals authored by McElmurry in 2016 which received funding; and National Institutes of Health grants on which McElmurry is listed as a contributing professor for his work on Flint.

Edwards paid for what were described as the “non-exempt public records,” but at the time of the lawsuit, he had not received any documents requested through FOIA.

On March 3, 2018, Edwards put in a FOIA request for more emails between McElmurray and Kilgore as well as emails between McElmurray and fellow Wayne State professor of civil and environmental engineering, Carol Miller. Edwards also requested a copy of a presentation given by McElmurray in October 2017. At the time the lawsuit was filed, Wayne State had not responded to Edwards’ request.

State law requires public bodies which are subject to FOIA to respond within five business days of receiving the request. The public body may request an additional 10 days to respond if it believes the extra time is needed.

Once the public body has responded to the FOIA request with an estimate of the time it will take to fulfill a request, as well as the cost associated, it is required to make a good-faith effort to deliver the documents in the time frame given to the requester.