Justice Deferred?

Another year, another update about Miller v. MDHHS.

Jan 10, 2025

ALMOST EXACTLY A YEAR AGO, Judge Elizabeth L. Gleicher — the original judge that presided over Miller v. MDHHS, the Freedom of Information Act lawsuit I filed against the Michigan Department of Health and Human Services in February 2023 — issued a disappointing opinion regarding the case before abruptly resigning from her post.

My lawsuit against the government sought and successfully obtained unredacted public records related to MDHHS’s still-undisclosed contracts and work with global consulting firm McKinsey & Company during the early months of the pandemic in 2020. But because the health department suddenly handed over the full set of unredacted documents in the middle of the case without any explanation or warning, the judge deemed the lawsuit moot.

In the court opinion, the judge also took the unusual step of writing that “the Court [did] not find that defendant acted arbitrarily and capriciously in respect to its original redactions,” without citing any case law or precedents to support that position.

Judicial opinions related to the FOIA typically include a legal analysis of redactions, and appealing a determination without citations to argue against would be interesting. Because of its absence, setting the precedent my attorney had acknowledged as a point of interest when accepting my case — one that would limit the State’s ability to use the deliberative process, or “frank communications,” exemption to shield officials’ communications with non-public bodies from the FOIA — was also impossible.

Beyond ensuring more government transparency, court clarity about the limitations of the the frank communications exemption could have improved access to information for reporters and fact-checkers, and prevented special interests and unelected individuals at private corporations from influencing policy without the risk of public disclosure.

For some reason, the original judge did not close out the case before resigning. So, it was reassigned by the court to Judge Christopher P. Yates on January 16, 2024. Despite my attorney’s request for Judge Yates’ reconsideration of the original judge’s opinion on January 26, 2024, the case has remained in limbo ever since.

Last month, on December 17, 2024 — almost a year after the new judge was assigned and nearly two years after the lawsuit was originally filed — my attorney submitted an Ex Parte Motion for a Status Conference to the court, requesting to meet with the new judge to find out what’s going on. In that filing, he cited Cashel v Smith: “In § 10 of the act the Legislature specifically provided that FOIA cases should be dealt with expeditiously by the courts.”

Thankfully, I’ve at least made some progress with the documents. Over the last year, since the original judge’s opinion was issued, I’ve had some time to sift through them, along with other public records I’ve obtained through 11 other FOIA requests. I still haven’t gotten through everything I want to review (last year was challenging for me on every imaginable level, and finding the time and mental energy to read thousands of pages of government records hasn’t been easy — this should have been the work of a newsroom, not one person). Still, I managed to connect a few dots and identified at least three stories that are, in my opinion, of public interest.

Although I still need more time to work on those, readers can expect some in-depth reporting to come out of all this nonsense at some point later this year (whether on Substack or via more traditional outlets). In the meantime, I’ll keep everyone updated once I find out more about the FOIA lawsuit that won’t seem to end.

Happy 2025!