Why I'm Suing the Michigan Department of Health and Human Services for Public Records About the Pandemic
Transparency about the information, individuals and contractors behind the State of Michigan's COVID-19 response is critical to the public interest — and our collective future.
As a local freelance journalist whose work focuses largely on small businesses and state public policy, I’ve had the unique honor of telling the stories of a wide variety of Metro Detroiters throughout the COVID-19 pandemic in Michigan.
Over the last three years, I’ve interviewed human trafficking survivors and staff at local anti-trafficking organizations who were working tirelessly to keep trafficked and at-risk women safe after stay-at-home orders left some vulnerable on the streets or sheltering with their abusers; mom-and-pop landlords and affordable housing nonprofits bracing for significant losses in the wake of business shutdowns; restauranteurs striving to keep their brick-and-mortar eateries alive while operating with skeleton crews during a time when carryout was their only legal option for remaining open; and apparel industry professionals pivoting to keep their companies afloat as essential businesses by producing personal protective equipment for healthcare providers.
More recently, I began reporting on the aftereffects of the pandemic — specifically, its economic impact. So far, this has included taking a hard look at rising levels of hunger in Metro Detroit, and the local nonprofits striving to meet the growing demand for emergency food assistance despite ongoing inflation, rising food and gas prices and decreasing government support.
Taken together, the articles I’ve written since March 2020 tell the story of a world profoundly changed by the COVID-19 pandemic — and not for the better. In all honesty, my reporting over the last several years barely scratches the surface of the pandemic’s impact on the people of Metro Detroit. I hope to change that in the coming year, because the people of Michigan and the U.S. deserve better.
A LACK OF TRANSPARENCY
Throughout 2020 and 2021, the often conflicting (and sometimes seemingly arbitrary) information and orders that came directly from public health officials, government agencies and corporate news outlets evoked confusion and anger both online and off in Michigan and across the nation.
Many had questions about whether masks provided enough protection from the virus to be mandated by the government (a subject that even highly educated medical professionals and public health authorities still can’t seem to make up their minds about); whether the presumed benefits of school closures outweighed the potential for harming children’s long-term wellbeing and development; whether elected leaders were going too far with emergency mandates; what impact government-mandated lockdowns might have on small businesses, supply chains, affordable housing, food insecurity and future inflation; whether placing COVID-positive patients in nursing homes with vulnerable elderly residents was good policy; why data about COVID-19 deaths among Michigan’s most vulnerable population wasn’t tracked properly; whether mRNA vaccines and boosters that lacked long-term safety data in humans (including pregnant women) were truly as safe and effective as the pharmaceutical companies promised they were — and, in light of those questions, whether it was responsible for them to be mandated by the government (stateside, the Supreme Court eventually answered that question for us).
In the absence of clean data and government transparency on how public policy was shaped around those important issues, the opportunity for an informed debate took a backseat to childish meanness, partisan politics and manipulative narratives. It was a deeply harmful phenomenon that even members of the American media fell prey to.
But any journalist worth their salt knows that emotions, politics and opinions are no substitute for properly tracked data, independently verifiable information, government records, and replicable and reproducible scientific studies in large sample populations over long periods. When it came to COVID-19 policy, things were simply not adding up as a matter of logic.
By the end of 2020, after months (now years) of societal chaos, political theater and endlessly confusing messaging coming from every level of government, I was determined to cut through the noise and pettiness. I wanted to understand exactly how pandemic policy was decided in the early months of the COVID-19 pandemic in the U.S. without all the misdirection.
During another extended partial shutdown in December 2020, I decided the best way to do that was to access the records of the government itself through legal channels — no matter how hard it would be or how long it might take.
AN ENDLESS GAME OF CHESS
Operating under the premise that public health data from the second and third quarters of 2020 would, or should, be finalized by early 2021, I began filing what would ultimately become a long series of requests under Michigan’s Freedom of Information Act requests in January 2021, seeking government records including formal studies, data and communications related to the State’s pandemic response.
At the time, I had very little experience with the FOIA as a reporter. Months earlier, I had filed my first and only FOIA request while reporting on proposed legislation to increase protections for pregnant prisoners in Michigan in the spring of 2020 — a request the Michigan Department of Corrections had quickly and fully responded to without any pushback or delays. At the time, I naively assumed accessing public records under the FOIA was as simple as that.
Little did I know that my experiences seeking information about the State’s pandemic response from the Michigan Department of Health and Human Services under the FOIA would be markedly different this time, requiring years of effort and a level of persistence I never anticipated.
Over the course of the last two years, MDHHS has sometimes responded to my FOIA requests with exorbitant fees no regular citizen or journalist could ever afford — an obstacle I wrote about for the Metro Times after the department quoted me $284,541.48 for a FOIA request seeking two months of communications related to the short-lived $9 million government-funded field hospital set up at Detroit's TCF Center in the early months of the pandemic. (Curiously, the fee for that request was significantly higher than the $37,590.00 MDHHS quoted for another FOIA request seeking over a year's worth of communications and data related to COVID-19 policymaking.) The high price tag the government placed on public records made them virtually impossible for me to access.
In another situation, the status of one of my approved FOIA requests seeking the names and email addresses of individuals with whom former MDHHS director Robert Gordon had corresponded in 2020 was suddenly, and unexplainably, changed to denied by a member of the department’s legal staff — after it had already been granted. The action felt confrontational and uncomfortably personal. That request’s original “granted” status was eventually reinstated after I complained about the potentially illegal action to the agency’s legal department.
Over the last three years, the responses I’ve received from state and federal agencies related to my FOIA requests have often left me feeling drained and deeply wary of a government I once vaguely had some faith in — an unfortunate outcome I never expected when I undertook this project in early 2021.
THE DEVIL IN THE DETAILS
Despite those early challenges, the government at both the state and federal levels finally began to deliver some of the information I’d requested under the FOIA in 2022. Although I would love to credit a will towards more transparency among government officials for that shift, the reason behind it was just that more powerful requesters, like advocacy groups with far stronger legal and financial resources than I had, began requesting (and sometimes paying for) the records ahead of me.
Some of that information included communications about the construction and closure of the TCF Regional Care Center in Detroit. While reviewing those records, a detail caught my eye and piqued my interest as a reporter: emails originating from a controversial global consulting firm whose name I’d heard mentioned, and had read about, on multiple occasions between 2020 and 2022 concerning government pandemic responses across the globe: McKinsey & Company.
The firm, which made headlines in 2021 over its settlement with the attorneys general of 47 states, including Michigan, related to its involvement in the opioid crisis, was reportedly involved in the pandemic response in California, Illinois, Massachusetts, New Jersey, Tennessee, Virginia and possibly others. McKinsey & Company also quietly consulted leaders in France and Canada during the pandemic — work that resulted in public inquiries and controversy in those places.
Curious and wanting to know more about McKinsey’s role in Michigan’s pandemic response, I filed another FOIA request in August 2022, this time seeking all reports about COVID-19 prepared by the global consulting firm McKinsey & Company provided to the Michigan Department of Health and Human Services (MDHHS) between the dates of 3/1/2020 and 5/1/2020 and all emails originating from an email address ending in " @mckinsey.com " sent to a selection of high-ranking government officials between the dates of 3/1/2020 and 5/1/2020.
The resulting records showed consultants from McKinsey were directly involved in MDHHS’s pandemic response throughout 2020, including the counting of COVID cases in Michigan nursing homes. Despite the large number of documents provided by MDHHS, though, what seemed like potentially substantive information had been redacted.
If I wanted to access any of the information withheld by MDHHS under its partial denial of my FOIA request — some of which I believed may have been improperly withheld under the law — I would have to sue the government to access it.
GOING IT ALONE
There’s an old saying that goes, “If you want a thing done well, do it yourself.”
I am not entirely convinced that proverb was meant to apply to the act of representing yourself in complicated court cases related to the FOIA, but in early 2023, I found myself in a position almost as uncomfortable — and isolating — as what I had experienced during the pandemic whenever I brought up prickly questions that others wanted to ignore: I needed to sue the government but I was unable to find an attorney willing to help.
In late September, I believed I had secured legal representation, only to be let down in mid-November. Despite reaching out to multiple attorneys that specialized in the FOIA, none were able, or willing, to help. Some said they were too busy or legitimately lacked support; others told me it was too financially risky.
After three years of reporting on the pandemic’s impact on people, nonprofits and small businesses in Metro Detroit — coupled with my own exhausting efforts to access public records about the pandemic — I was suddenly faced with the choice of giving up or continuing alone.
I chose to persist.
ERIN MARIE MILLER v MICH. DEPT. OF HEALTH AND HUMAN SERVICES
During the two weeks before the 180-day deadline to file a lawsuit associated with my FOIA request, I spent hours frantically researching Michigan case law and legal precedents relevant to my case. I also reviewed the complaints of previous high-profile FOIA cases at the state and federal levels to learn about proper formatting and legal language (an art form that I could still use some improvement in), while sifting through hundreds of pages of court opinions and local court rules to draft my very first legal complaint … on my own.
Despite the enormity of the undertaking and the exhausting level of work involved in educating myself about Michigan civil procedure on short notice, my complaint was officially received by the Michigan Court of Claims on February 24, 2023 — 176 days after MDHHS provided its response to my FOIA request on Sept. 1, 2022.
My lawsuit against MDHHS alleges four counts of improperly withheld public records under Michigan’s FOIA and seeks the Court’s in-camera inspection of those records, as well as the prompt release of any information that was improperly withheld by the department, along with other state FOIA-specific damages.
THE COURT DOCUMENTS
My original complaint, as filed with the Court of Claims (or view here):
MDHHS’s answer, which was served to me this morning (or view here):
My personal contact information, and the phone number for MDHHS’s attorneys, has been redacted for obvious reasons. I will keep readers of this newsletter posted as I know more about the status of the case.
WHY IT MATTERS
I believe this lawsuit is important for several reasons. In addition to defending the spirit of the FOIA and encouraging government transparency, lawsuits like this create opportunities for ensuring more accountability — something that benefits everyone in a democracy. Because of that, this lawsuit has undeniable value to our collective future.
Additionally, over the last several years, public health officials have warned about the potential for future pandemics. By understanding how decisions were made regarding public policy during the COVID-19 pandemic in 2020 — and, with full transparency, identifying where things went wrong and how we can improve — we can learn from the past and prevent future missteps.
Because I am representing myself pro se in this case without any formal legal training or guidance, I cannot say how any of this will turn out or whether I will prevail in my efforts in court. Ultimately, that will be left up to God and the judge overseeing my case.
If I do prevail, I also cannot say whether the resulting records will contain any information that is significantly more valuable than what has already been provided. Regardless, I believe any movement toward more government transparency is a good thing.
Despite those uncertainties, there are still two things about which I am certain at this moment: that I have done the best I could, to the best of my current abilities — and that I will continue fighting for answers about the government’s pandemic response for as long as it takes to get them.
Excellent job. You are working in the weeds on one of the largest problems our society faces. Heroic work.
Your complaint looks good. I used to be a litigator and you've done a better job than lots of licensed attorneys I faced.
I hope you can find a lawyer. Keep looking. You might face a barrage of motions on technical matters and need someone with experience. Someone out there should be willing to help for free. Meanwhile, remember that one of the main skills in litigation is self-confidence. And you can go toe-to-toe with anyone when justice is on your side.
(I'm kinda in limbo right now or I would offer to volunteer to help. I may get back to you on that.)