A Principled Stand for Government Transparency
Here's why we're opposing the health department's motion to dismiss Miller v MDHHS.
IN EARLY AUGUST OF THIS YEAR, the Michigan Department of Health and Human Services committed a random act of unexplained generosity: it delivered a set of almost completely unredacted public records that, in their redacted form, were the basis for filing Miller v MDHHS — the ongoing Freedom of Information Act lawsuit I initiated against the health department earlier this year.
As part of my slowly unfolding investigation into the State of Michigan’s work with global consulting firm McKinsey & Company during the pandemic in 2020, the unredacted records offer fresh insights into how some of the State’s public policy decisions were made during the early months of the historic public health crisis in Michigan.
Beyond that, the records also shine a light on something potentially more significant: the health department’s quiet collaboration with a controversial consulting firm that went mostly unnoticed in 2020 due to what appears to be, at least on the surface, potentially undisclosed government contracts — mirroring similar discoveries in other countries two years ago.
I plan to write more about both of those topics in time. For now, I am still piecing together the details and identifying stories of particular public interest within the thousands of now-unredacted government records.
In the meantime, though, my FOIA fight isn’t over.
MDHHS SEEKS SUMMARY DISPOSITION
On September 29, 2023 — over a month after suddenly delivering the requested unredacted documents to me without explanation — MDHHS filed a Motion for Summary Disposition, asking the Court to dismiss Miller v MDHHS in its entirety. Among other claims, the health department’s lawyers argued that the case was mooted by its delivery of the requested records.
You can read the Defendant’s Motion for Summary Disposition here.
NOT SO FAST …
My attorney for the case, Philip L. Ellison of Outside Legal Counsel, PLC, disagreed. On November 13, 2023, Ellison filed a response in opposition to MDHHS’s request for dismissal (a typo was corrected the following day).
Noting the unredacted public records in question weren’t provided to me until after I had filed the lawsuit, and that no explanation was provided about why the almost completely unredacted documents were suddenly handed over — or why the redactions had been there in the first place — Ellison requested that the court hear the case out and grant the punitive damages and civil fines permitted under the Michigan FOIA. The brief also included examples of what we allege were improper redactions in the initial records when compared to the newly-unredacted records.
You can read the Plaintiff’s Corrected Response in Opposition to Defendant’s Motion for Case Dismissal here.
Unsurprisingly, the attorneys for MDHHS shot back a response, disagreeing and again requesting that the court dismiss the case.
You can read MDHHS’s reply brief here.
TAKING A STAND FOR GOVERNMENT TRANSPARENCY
Despite now having the requested records in their almost completely unredacted form, I believe fighting for the penalties permitted under the state’s FOIA — which include enhanced civil fines ranging from $2,500 to $7,500, paid to the people via the state’s general fund — is important for promoting and encouraging government transparency in the future.
Every principled stand to defend the FOIA is a deterrent against future obstacles to accessing public records — and I’m fortunate to have an attorney who agrees, and who is willing to see the case through despite a heavy caseload that even included a lawsuit at the Supreme Court recently.
Journalists and citizens should not have to file lawsuits against their government to obtain information that should have simply been provided to them under the law. Very few citizens or journalists have the time, capacity, or tenacity to do what I did in this case — nor should they have to.
The fact that Miller v MDHHS ever had to be filed in court — and that it has required so much time and effort and persistence; and caused so much stress and exhaustion — is, in my opinion, another mark on Michigan’s already poor record of government transparency.
It is my sincere hope that by seeing this case through to the end and pursuing the penalties available under the state FOIA, public bodies in Michigan will be deterred from improperly redacting and withholding public records from requesters and journalists in the future — and that Michigan’s leadership and governance will be a little bit brighter and healthier as a result.