There They Go Again? U-M Looks To Be Dodging Open Records Accountability

In an effort to discover what constitutes the “best science” that Gov. Gretchen Whitmer often cites when discussing the state’s COVID-19 responses, the Mackinac Center for Public Policy had filed a lawsuit against the University of Michigan, alleging it violated state open records law.

The suit involves a December Freedom of Information Act request that sought information from the U-M officials Whitmer relied upon to make policy decisions. The governor has not shared details about what was behind the “science and data” she has cited throughout the pandemic.

As governor, Whitmer’s official emails are exempt from Michigan’s FOIA law, but email from the University of Michigan is not exempt. The December lawsuit challenges the lack of transparency in the university’s response an open records law request from the Mackinac Center.

In a document request sent to U-M on May 13, the Mackinac Center sought copies of any correspondence between three specific university officials and anyone with a state government email address. A subsequent request, filed on May 27, asked for all correspondence to or from the same officials concerning the Michigan Safe Start Plan.

In its response, the university cited the “frank communications” exemption in the FOIA law. In doing so, it withheld a significant amount of documents entirely and subjected others to extensive redactions, blocking out portions of text.

In a statement, the Mackinac Center said, “According to Michigan law, the ‘frank communications’ exemption applicable to communications between two public bodies if 1) they are more than purely factual; 2) they are advisory in nature; and 3) they are preliminary to a policy decision or determination. If those factors are present, and the public’s interest in encouraging frank communications clearly outweighs the value of obtaining records in the particular instance, the exemption may be granted.’”

In 2017, the University of Michigan took the same approach in a dispute over emails sent by U-M President Mark Schlissel, which elicited an earlier Mackinac Center lawsuit. The seven emails at issue did not meet the “frank communications” threshold and were ultimately released by the university as part of a settlement with the Mackinac Center.

In the recent FOIA lawsuit, U-M initially provided 155 pages of documents, comprised largely of department employees discussing the logistics of who would be attending meetings.

The unredacted material also included publicly available slides showing COVID-19 data and trends, and other pages already available to the public on state websites.

What the 155 pages did not provide were any useful insights into the input U-M experts and officials were providing to state officials on COVID-19 policy.

The Mackinac Center sued, and U-M then provided 224 more pages of documents, many of which were also heavily redacted.

For example, the second tranche of documents included duplicate copies of a 14-page report from the Michigan Licensing and Regulatory Affairs Department on child care operations. Many other publicly available online documents from various state agencies were also included.

“We are baffled that the Mackinac Center would file a lawsuit in this matter,” said U-M Spokesman Rick Fitzgerald in an email. “In response to the Mackinac Center’s FOIA appeal, the university provided 224 pages of documents with very modest redactions – mostly of email addresses for security purposes – perhaps totaling five pages. That is in addition to the 155 pages of documents provided in the university’s initial response. The university will vigorously defend the integrity of our FOIA process in the Court of Claims.”