Another Update on Miller v. MDHHS
Case dismissed?
11/5/2024 - Article updated to clarify the specific FOIA exemption the lawsuit sought to establish legal clarity about from the Court.
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IN AUGUST 2023, THE MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES suddenly handed over thousands of pages of unredacted public records to me as a result of Miller v. MDHHS, the Freedom of Information Act lawsuit I initiated against the government last spring in search of information related to the State of Michigan’s work with global consulting firm McKinsey & Company during the pandemic in 2020 — a partnership that was, surprisingly, not publicly disclosed in government contracts throughout much of that year.
Because of McKinsey’s involvement in a number of controversies over the decades — including its role in the opioid epidemic and its more recent roles advising both former New York governor Andrew Cuomo and former President Donald Trump on what appeared to be competing pandemic plans while raking in millions advising other government agencies of all stripes across the country in their own varying pandemic responses — understanding the firm’s role in the pandemic is, in my opinion, as important to history as it is to the public interest.
As I wrote in November, the health department’s document dump happened quietly and abruptly. To date, the department still has not provided an explanation as to why it suddenly removed the redactions it had placed on nearly a thousand pages of documents that were originally provided to me under the FOIA.
However, a recent opinion issued in the case seems to point to a tactical motivation. The contents of the documents also appear to offer an explanation about why the department initially sought to preserve the original redactions (more on that soon, in another post).
At the time the documents were delivered, despite MDHHS asking the judge to dismiss my lawsuit, I had requested that my lawyer keep fighting for the Court’s analysis of the original redactions for two purposes: first, to disincentivize improper FOIA redactions in the future; and second, to establish an important legal precedent in Michigan — something we’d discussed during our initial phone call, when he’d agreed to take over my case.
That’s because my FOIA lawsuit, and the specific redactions I’d contested in the complaint I drafted, had the potential to establish legal clarity at the court level in Michigan about whether communications between government officials and contractors, which are not public bodies, are legally excluded from the deliberative process or “frank communications” exemption under the state FOIA.
If we won, that legal clarity would have been a victory for journalists and citizens in a state with a notoriously poor record of government transparency.
CASE DISMISSED?
Unfortunately, in an opinion issued on January 5, 2024, Judge Elizabeth L. Gleicher did not review the department’s original redactions or provide an analysis of the legality of their application. In fact, she barely acknowledged them.
Instead, the seven-page opinion declared that, because the government had voluntarily provided the documents to me in their unredacted form without compulsion from the court, that my lawsuit had, supposedly, been rendered moot. Therefore, MDHHS’s motion for summary disposition was granted.
The opinion also stated that “the Court does not find that defendant acted arbitrarily and capriciously in respect to its original redactions.” It remains unclear how the Court arrived at that conclusion, however, as no specific analysis of the legality or appropriateness of the original redactions was provided.
As a result of the lawsuit’s supposed mootness, the judge’s opinion also denied my request for civil fines and punitive damages under the state FOIA, which would have included some potentially hefty fines paid to the state’s general fund for each improper redaction, and a single fine of no more than $1,000, paid to me, the requester, for the inconvenience of having to file a lawsuit. (To grant fines and penalties would have meant the Court would have to provide an analysis of the original redactions — which might have established the legal precedent I’d been after. But no such luck.)
While I had not expected to receive $1,000, I had expected to recover the expenses I’d paid of out-of-pocket to initiate my lawsuit, including court fees and the costs associated with sending registered mail and hiring a process server to serve the original complaint on the government. Those costs amounted to almost $300, cumulatively. It’s unclear to me whether I will recover those costs now, or if I’m just out the money on a lawsuit I never should have had to file — which would make the government’s original redactions feel sort of like a racket, frankly.
Thankfully, despite MDHHS’s objections to our request for lawyer fees (the government’s lawyers had basically tried to argue that I’d done the bulk of the legal work by writing my own complaint), the ruling did permit attorney’s fees, to be paid to my lawyer by MDHHS.
In my opinion, the Court’s decision was both disappointing and confusing for several important reasons — the most obvious being that MDHHS removed the original redactions without explanation. That raises the question: how could the original redactions not have been arbitrary and capricious if the government could provide no legal defense to support them, but instead just simply removed them after being sued?
It probably goes without saying, but the ruling has left me feeling a little jaded about our legal system. Knowing that I drafted a pristine complaint that could have potentially set a precedent limiting government agencies from obscuring their communications with third-party contractors, it was hard not to feel like maybe the court was hesitant to hand that accomplishment down to a 30-something freelancer who’d initiated a lawsuit against the government pro se, despite never attending law school and only having a bachelor’s degree from a state university — an art degree.
Whatever the reason, the judge’s decision left some loose ends dangling as far as the state FOIA, in my opinion — loose ends that I have very little faith will ever get tied up.
Since issuing the opinion in early January, Gleicher resigned from her post as the Chief Justice of the Court of Appeals (where the Court of Claims resides) — a move that was planned and announced in October last year. According to a Detroit Regional Chamber blog post dated Oct. 6, 2023, “her motivation was to allow [Gov. Gretchen] Whitmer to choose her successor.”
In Gleicher’s absence, Miller v. MDHHS was reassigned to Judge Christopher P. Yates, who was appointed by Gov. Whitmer in 2022.
A HICCUP AND A REQUEST FOR RECONSIDERATION
On the afternoon of January 26, 2024 — the deadline to file a response to the Court’s opinion and order — my lawyer submitted an itemized list of attorney fees to the court, along with a motion for reconsideration asking our new judge, Judge Yates, to review the case and ruling with the potential for a different outcome.
Among other things, the motion argued that the Court’s initial ruling had cited an outdated version of Michigan’s FOIA statute to support its decision, and that the Court erred in not imposing fines for the original redactions based on the current language of the statute.
Unfortunately, when submitting that motion for reconsideration to the court, my lawyer somehow accidentally selected the wrong filing type. Because of the error, the filing was subsequently rejected by the Court Clerk the following day — after the deadline to file a response and preserve my right to appeal had passed.
The motion for reconsideration was then re-submitted to the court under the correct filing type. Due to the motion’s initial rejection, and subsequent resubmission after the deadline, it’s unclear whether the motion will be accepted by the Court as timely.
For some reason, my attorney did not submit the claim of appeal form that is required in Michigan to simply reserve my right to appeal Judge Gleicher’s opinion without reconsideration from the new judge. The deadline to file that form was also January 26, 2024.
Currently, my lawyer and the government’s lawyers are now embroiled in a back-and-forth, with the government arguing for reduced lawyer’s fees and my attorney requesting that the court deem our motion for reconsideration “as timely filed nunc pro tunc on January 26, 2024.”
‘I OBJECT!’
I would be lying if I said I wasn’t both surprised by, and disappointed in, every single aspect of how this thing turned out. I would have loved to have been able to end this ridiculous saga differently — like writing to all of you, instead, to tell you that my faith in our government had been restored and that our judicial system had stood staunchly for the people in the face of an opaque government. That our legal system was a beacon of hope in the absence of sunshine.
I would have also loved to tell you that my FOIA lawsuit had set an important precedent that would make the work of journalists easier and ensure that Michigan’s citizens had access to verifiable public records in the future, should their government ever quietly — silently, even — work with a scandal-ridden government contractor (in my opinion) under dubious circumstances again.
Unfortunately, things didn’t quite work out like that. Instead, the government dodged a lawsuit with what was, in my opinion, an underhanded act of desperation; the judge dismissed my legal arguments, declined to analyze the government’s actions and then promptly resigned; and my only remaining opportunity to set an important FOIA precedent through the appeals process may have been lost through no fault of my own.
It’s now up to Judge Yates to decide whether or not the court’s opinion will be reconsidered and if my right to appeal will be preserved — something I honestly don’t expect to happen.
I think the comedian George Carlin said it best back in 2005, when he walked onstage at the Beacon Theater and cynically explained to a New York City audience why nothing that’s broken in America ever really gets fixed: It’s a big club — and I ain’t in it.
But I still got the docs. (More on that, soon!)
I looked at your site after our recent exchange. Well done and bon courage!
Gotta say I respect your level of positivity under the circumstances. The legal system seems to have failed you, but you continue to remain classy. I look forward to your take on those documents at some point in the future.