Unredacted: The MDHHS Documents
Public records provided by the health department reveal confusion, data reporting mishaps among personnel and contractors in 2020.
A brief note: I apologize that this update has taken so long. In August 2023, the Michigan Department of Health and Human Services released a set of unredacted documents to me in response to my FOIA lawsuit against the health department seeking information about their pandemic-related work with global consulting firm McKinsey & Company — a private corporation that reached a $573 million settlement with Michigan and 46 other states in early 2021 related to its alleged role in the opioid crisis. Because the health department delivered the documents without alerting me or my attorney beforehand, I was initially unaware they had been released. Once the confusion was cleared up, I got to work.
Unsurprisingly, the documents were provided to me in random, unchronological order — and in a different order than the original documents, which were also not chronological. Each set of documents numbered in the thousands, and many of the emails also included attachments that numbered several hundred pages each. To say the least, this whole thing has been frustrating.
At the request of my attorney, I spent hours upon hours comparing the new documents to the redacted documents, searching for what I believed were improper redactions. Because of filing deadlines, I did not have time to read the documents, or their attachments, deeply; instead, I spent that time searching for matching documents and making superficial comparisons as quickly as possible in order to get through them in time.
As a freelance journalist, my research for this investigation is done in my spare time around other jobs, as well as reporting and photo assignments for various outlets. As you can imagine, this particular project — and the FOIA lawsuit attached to it — has been massively time-consuming and draining, requiring more effort than anything I’ve ever worked on. There is so much information to sift through between this FOIA request and several others related to it. Connecting all the dots is a tall order for someone working alone in their spare time, but I’m doing my best. Understanding what went wrong, and right, during the pandemic is important for our future.
The added responsibility of teaching myself civil procedure last year to initiate this FOIA lawsuit — on my own — was also one of the most time-intensive and mentally exhausting things I’ve ever done. To say that 2023 was one of the most challenging years of my life so far, both personally and professionally, would be an understatement.
By Thanksgiving, after securing a lawyer and seeing the lawsuit go into full swing, the exhaustion finally caught up with me. Because mental clarity is important for this type of work, I took a necessary break from this investigation during the holidays through Easter. I’m returning to it now with more energy and clarity than I’ve had in at least a year, and I sincerely appreciate your patience with me as I get the ball rolling again.
Although the post that follows is only a brief overview of the redactions that were lifted by MDHHS in response to Miller v. MDHHS, I hope to have more in-depth work to share with you soon. — E.
An Overview of the Redacted Content
‘LUMPY’ DATA AND CASE REPORTING CONFUSION
Among the most important redactions removed from the documents in question in Miller v. MDHHS was an email thread between Mark Totten, Chief Legal Counsel for the Office of Governor, State of Michigan, and several MDHHS personnel; contractors including McKinsey consultants; and former MDHHS director Robert Gordon, whose abrupt resignation in early 2021 — reportedly at the request of Gov. Gretchen Whitmer — made headlines that year due to questions surrounding Gordon’s $155,506 separation deal, which allegedly included a confidentiality clause protecting both sides. Gordon was later tapped by the White House as Assistant Secretary for Financial Resources at the U.S. Department of Health and Human Services. He is currently listed under key personnel on that agency’s website.
Despite Totten’s inclusion on the originally redacted email thread, the discussion was not limited to the public body and its legal counsel, nor did the conversation involve a public body specifically seeking legal advice from its retained counsel — both necessary for the attorney-client privilege exemption to apply to public records under Michigan’s FOIA.
The conversation did not even center around any specific legal question, and also included people from outside the public body, including McKinsey consultants — key facts I relied on to dispute the redactions in my complaint. (Judge Elizabeth L. Gleicher did not provide a specific analysis of any of MDHHS’s redactions in her January 5 opinion but wrote that “the Court [did] not find that defendant acted arbitrarily and capriciously in respect to its original redactions.”)
In an unredacted email dated April 12, 2020, Andrea Taverna, former senior advisor for Michigan’s opioid strategy, addressed Totten’s questions about why daily test volumes were decreasing while test capacity was rising, noting that department staff didn’t “entirely understand” the cause of the phenomenon.
Part of several possible suggestions, the unredacted email pointed to “‘lumpy’ data reporting” that may have created the illusion of lower or higher rates of illness when testing results were not reported on the same day they were collected but instead reported along with other days’ results on a different day, as opposed to results being reported daily in real-time.
Robert Gordon also chimed in, offering a “more pessimistic hypothesis” in an unredacted email also dated April 12, 2020. In that email, Gordon pointed to various possibilities including a decrease in testing in Detroit and the possibility of Oakland County’s data being mistakenly attributed to Detroit.
Although Gordon points to “the same bottom line” if cases were attributed back to their appropriate populations, he goes on to refute the “pessimistic view” in another portion of his email, asking whether there is “sufficient ambiguity” between perspectives to justify new testing sites or capacity.
Still, the question of positive cases potentially being attributed to the wrong populations — there is a big difference between Oakland County and the city of Detroit — raises important questions about whether public health policy decisions in different places in Michigan were based on accurately reported data.
PUBLIC RELATIONS, LONG-TERM CARE FACILITIES — AND DOCTORS WITHOUT BORDERS
One of the more baffling redactions applied to the McKinsey communications provided by MDHHS was an email dated June 11, 2020, between Nicole Hudson, then State Assistant Administrator for MDHHS, and Leah Kaplow, a consultant for McKinsey, related to public messaging about staffing support for long-term care facilities as testing ramped up among those facilities’ staff across the state.
MDHHS launched the Rapid Response Staffing Resources program in July 2020 to support understaffed facilities that were struggling during the pandemic. It was expanded in September 2020 to provide more hours of support and additional staffing options.
It’s unclear to me why this email was originally redacted, particularly under the “frank communications exemption” — which, in my complaint, I argued didn’t apply to communications between a public body (like MDHHS) and private corporations/non-public bodies (like McKinsey) under Michigan’s FOIA.
Of particular interest in the unredacted email is the mention of Doctors Without Borders requesting a meeting with MDHHS officials about care facilities — something I was already aware of, and obtained public records about via MuckRock, before I received these documents.
NEARLY A THOUSAND PAGES OF SPREADSHEET DATA
View the unredacted document on DocumentCloud (does not include spreadsheet)
The document linked above — a previously redacted email thread dated June 1 to 3, 2020, between MDHHS contractors and personnel, including some high-level officials, discussing a “spend plan” document related to $315 million in federal funding allocated to Michigan for testing in May 2020 — is just one of many similarly redacted documents related to budgets in the MDHHS release.
Mysteriously, the sent date/time on the top email in the document linked above, sent from Andrea Taverna, differs depending on whether you’re reading the original redacted document or the unredacted version. None of the dates/times on the other emails in the same thread appear to differ between the redacted and unredacted versions of the documents.
It’s unclear what might have caused that discrepancy.
By far, the majority of redactions originally applied by MDHHS included data and information contained in Excel spreadsheets. On initial review, many of those spreadsheets appear to be related to budget estimates for testing and tracing. Together, those redactions amounted to nearly a thousand pages, often in the form of email attachments.
I have not had the time or bandwidth to review the contents of all of those spreadsheets, but I intend to get started on that work in the coming weeks.
REMAINING QUESTIONS
It’s still unclear to me why MDHHS was working with McKinsey in the absence of a publicly disclosed contract throughout much of 2020. Without a contract describing the consulting firm’s scope of work during the early months of the pandemic, the specific reasons for their involvement remain uncertain.
In an email dated August 2, 2020 (which was not previously redacted), MDHHS officials discussed another similar request they referred to as “Quinlan FOIA.” In that exchange, officials discussed the contents of “Message 63” and “a few messages after,” which apparently included discussions about the department’s relationship with McKinsey and “leaving them out of press response as a contract hasn’t been signed yet.”
Although the documents MDHHS dumped as a result of this lawsuit are admittedly chaotic, I have not been able to locate the messages the officials were referring to in that email.
In addition to those questions, conversations that fully address multiple suspected data errors during the pandemic feel spotty to me after reviewing the documents. It’s possible those issues were discussed in more detail by phone or Zoom — a possibility that highlights a portion of the state’s FOIA that has not kept up with technology.
As more meetings continue to be held virtually, or via conference call, it seems increasingly important for public bodies to retain recordings or transcripts of virtual meetings and official calls for the public record. I’m hopeful that a revision to the FOIA will address that issue in the future.
PROPERTY OF THE PEOPLE
I firmly believe that public records are the property of the people. The unredacted documents provided by MDHHS in response to Miller v. MDHHS can be downloaded directly via MuckRock.
All of the documents and communications referenced in this post can be independently verified by fact checkers, news outlets, journalists and members of the general public by filing a FOIA request with the Michigan Department of Health and Human Services that specifies the date(s) and document(s) in question. MDHHS has also acknowledged the veracity of these documents in its responses to Miller v. MDHHS (see Michigan Court of Claims case number 23-000027-MZ).
Glad you were able to take some time off. Hope this year brings more clarity and less stress in your life.