The FOIA in Michigan is Broken
Some open records for the public, and a sordid tale about trying to access data and public policy information during a historic pandemic.
Update 7/13/2022: I’m no longer using MuckRock to file FOIA requests. My experiences using the platform haven’t been ideal, and they’ve removed key features that made using the service worth it to me, such as curated and collaborative projects. Because of that, I prefer to handle requests myself moving forward (and report on any issues I experience along the way). From now on, I’ll publicly share each new FOIA request as I file it, and also share the documents I receive, in free public posts under the “FOIA Files” section of my Substack. My earlier FOIA requests from 2021-2022, and the resulting records, remain available to the public on my MuckRock profile, here: https://www.muckrock.com/accounts/profile/erinmiller.
Update 6/22/2021: From this point forward, I will be filing future FOIA requests through MuckRock, a nonprofit collaborative news site that enables citizens and journalists to file FOIA requests and share those documents directly with the public for the purpose of transparency and accountability. I’ll also be working to create a collaborative journalism project there related to pandemic policy and government spending in Michigan. You can keep track of this FOIA project, and others, on my MuckRock profile: https://www.muckrock.com/accounts/profile/erinmiller
On Monday morning, my eyes snapped open as sunlight peeked through the closed blinds. In a panic, I shot out of bed and stumbled across the room toward my desk, disoriented from waking so abruptly.
I opened my laptop and looked at the time. I had slept through my alarm. It was 8:45, and I only had about five minutes until the Michigan Department of Health and Human Services Freedom of Information Act (FOIA) staff would start working.
Somehow, in my sleep, I’d realized that I needed to make a correction to a FOIA request I’d filed a few days earlier.
The MDHHS had already extended the time it needed to respond to that request, and I realized that I had forgotten to include a date range. I knew it was a serious error — that kind of mistake could likely result in a denial or an invoice for an exorbitant fee, and I would have to start the process over again at square one.
For almost half a year, I’d been trying to access straightforward data about public policy and COVID-19, including vital statistics related to residents of long-term care facilities in Michigan. I had a lot of questions about the things I’d watched people go through in my state, and I wanted to understand the science and data that were used to create public policy during the pandemic — especially related to nursing home deaths.
I’d spent months filing a seemingly endless series of FOIA requests, always hitting weird roadblocks. I had become mildly obsessed with trying to think two steps ahead of the MDHHS, always looking for ways to navigate around tricky legal obstacles and get better at what I was trying to do.
By April, the FOIA had become a mild obsession for me. Most of my free time was devoted to researching the FOIA and trying to think of the right way to ask questions to access information. If I wasn’t emailing with editors or asking for advice from attorneys that specialized in FOIA rights, then I was immersed in research and trying to figure out what to ask next and how to word it in a way that would produce results.
It didn’t help much that Michigan is one of only two states in the nation where the governor’s office is exempt from the FOIA (the other state is Massachusetts). Between mid-March and late October 2020, most public policy related to COVID-19 in Michigan was decided solely by the governor through emergency powers granted under the 1945 Emergency Powers of the Governor Act. The law allowed the governor to create public policy without legislative approval or input. An unfortunate side effect was that information about the policy-making process remained excluded from FOIA requests.
The FOIA exemption for the governor’s office created an impressive obstacle course for journalists during the most critical days of a historic public health crisis.
Although the emergency powers used by the governor under that law were eventually struck down last October by the Michigan Supreme Court, they were in effect throughout the most significant parts of the pandemic. Because of that, the FOIA exemption for the governor’s office has created quite an impressive obstacle course for journalists trying to understand how public policy was decided throughout the most critical days of a historic public health crisis.
By any standards, the particular information I’d been looking for has been notoriously hard to get — not just for me, but also for other local reporters. A Pulitzer Prize-winning journalist had unsuccessfully tried to get the same information for about the same amount of time as I had. He ended up suing the state, but the case ended last week with a settlement that provided a disappointing data set and a bunch of unanswered questions.
I think a lot of local journalists, and citizens, had been watching that case closely and hoping for a fruitful outcome. I know I had.
Based on these experiences, I think it’s time to have an open discussion about everything that’s wrong with the FOIA in Michigan. The problems range from excessive (and often exorbitant) fees for records that should be easily accessible to the public to shielding of certain offices (like the governor’s office) and data (like vital statistics) from FOIA requests, and most significantly, the bizarre idea that the burden of paying for extensive (and likely unnecessary) hours of review/redaction should fall on taxpayers and journalists, rather than on the government.
I think even just making that one small change — requiring the government to pay for review/redaction hours instead of leaving it up to the taxpayers — would result in an improvement to the ability of the public to access government information.
I’ll be discussing all of these things more in future posts.
Beyond those points, I also think it’s time for journalists to start sharing their notes with each other. I’m happy to be the first one to do it — I’m a big believer in open government and open information.
As the pioneering open information activist Aaron Swartz once said, “Information is power.”
By any standards, the information I’d been looking for had been notoriously hard to get — not only for me, but also for other local reporters.
You can review my FOIA requests dated between January and May 2021 on Document Cloud. It will give you a better idea of the kinds of fees that are charged for very basic information and communications requests, as well as the kind of correspondence I’ve had with the agency.
I plan to file future FOIA requests via MuckRock.com, where they will be updated in real time and easily accessible to the public in one place. (See my note at the top of this blog post for more information about that.)
The folder contains each original request, a history of communications related to the request (these tend to be very interesting and often enraging), an invoice if there are fees (these also tend to be enraging), and occasionally some data if it was actually provided by the State.
All of the documents were obtained via my own FOIA requests through the MDHHS. Because of that, they are already part of the public record (if you doubt their veracity, you can file a FOIA request to obtain them yourself). However, I think it’s helpful and important to put them all in one place so people can read through them easily, rather than trying to search for needles in a digital haystack on government websites.
The results of the FOIA requests are often extremely discouraging, and it often feels like I’m being stonewalled — either through exorbitant fees, or being told the agency doesn’t have the information, or being flatly denied. Sometimes they even basically just say, “Because we don’t have to.”
One of my initial FOIA requests was very large and asked for lots of information and data. I received a quoted fee of almost $40,000 to access that information. I could have paid off my student loan debt for the same price I could have accessed my own government’s policy information.
After that, I began filing smaller requests. As you’ll see when you review the documents, I’ve been quoted fees ranging anywhere from nothing to around $12,000 since then. Sometimes my requests are approved; sometimes they are denied. Sometimes the denials are very confusing. Only a handful of requests so far have produced any results, and usually those results just led to more questions.
I personally think the massive fees, denials, and sometimes unreasonable communications speak volumes.
In a recent request, I asked for the names and email addresses of federal public health officials from the CDC and HHS that had communicated with former MDHHS director Robert Gordon in 2020. The request was initially approved and quoted a fee of over $4,000. When I attempted to appeal it, the decision was almost immediately revised and denied under the premise that the agency claimed they didn’t have access to those records. But based on a review of a previously-completed FOIA request, I’m confident they do have access to those records.1
That request in particular (H011657-052521) sparked my idea for this blog post.
The FOIA may be broken, but I still believe in the spirit of the law. I know these problems can be fixed if they’re given enough sunlight.
I want to make this project more of an “open source” journalism project. I have very little power on my own, but I believe there is power in numbers.
As far as the documents go, you can confirm any request’s veracity by filing a FOIA request through the agency with which the original request was filed (in this case, MDHHS) using its FOIA reference number. Some of the emails were sent to me by MDHHS outside of the official FOIA system, so you will also need to request all internal and external communications, including emails, related to each request.
I’ve redacted my personal mailing address, phone number and email address for obvious reasons, and have also redacted email and/or phone info for some of the workers that were included in my FOIA correspondence (only if their email address didn’t seem to be public-facing). This was mostly just out of respect, since our communications were actually also part of the public record. I left public-facing email addresses and everyone’s names intact for the purpose of accountability.
The FOIA may be broken, but I still believe in the spirit of the law. I know these problems can be fixed if they’re given enough sunlight. I also know there are important answers to be discovered about government and public policy when open information laws are used well — and shared widely.
I hope that someone out there finds this information useful and that it helps us collectively answer some of our society’s most pressing questions about public policy. I’m not going to stop filing requests until my questions are answered, and I hope this blog post inspires others to do the same.
As Justice Louis Brandeis once said, “Sunlight is said to be the best of disinfectants.”
Update 6/21/2021: I was right. After MDHHS told me they didn’t have access to the requested records (H011657-052521) and that another agency, DTMB, now had control over them, I filed a FOIA request with DTMB. It turned out, DTMB didn’t have them. MDHHS actually had access to the requested records the whole time. After this revelation, the records were provided to me by MDHHS. Access to open records under the FOIA relies on a somewhat merit-based system, so this was obviously concerning to me. According to a lawyer I spoke with about my experience, there is apparently no legal recourse for a requester when an agency is caught giving inaccurate or misleading information about its access to records, so long as those records are eventually provided to the requester.