Michigan Environmental Office Repeatedly Stonewalls Record Requests

Agency connected to Flint water crisis has haphazard FOIA system

Rep. Phil Phelps, D-Flushing, says it took months for the Michigan Department of Environmental Quality to respond to his Freedom of Information Act request for documents related to the Flint water crisis. The department initially said the documents did not exist, but months later the lawmaker received tens of thousands of documents the agency had withheld.

Phelps sent a request in early September 2015 to the DEQ as well as the Michigan Department of Treasury and the city of Flint. Phelps said his FOIAs asked for any documents relating to officials knowing that Flint River water was safe for use before switching the city’s source from the Detroit Water and Sewerage Department to the river. (Flint switched its water source to the Flint River in April 2014.)

The environmental department initially asked for a 10-day extension on the request as allowed by state law but later told Phelps there was a lack of documentation. Even so, approximately four days later, it sent Phelps six to seven pages of documents, which he said were unrelated to his request.

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The department corroborated Phelps’ account.

“Rep. Phil Phelps did send a FOIA request to the MDEQ in September 2015,” said Michael S. Shore, the department's communications director. “As part of the FOIA process, several divisions were asked to look through their files for relevant information. Some of the divisions responded with no relevant information (not a denial) while one division did follow up with a few documents.”

After mentioning in public that his FOIA request was denied, Phelps was approached by a constituent, who wished to remain anonymous, who reported sending a similar FOIA request after discovering discolored water and an accompanying odor. The constituent received documents back, Phelps said. He added that he himself had requested but never received some of those documents.

“Here I had in my hand – after they denied my request – documentation that certainly should have been turned over,” Phelps said.

That’s when Phelps filed his intent to sue the department in the Michigan Court of Claims.

“Part of the legislative process is oversight of state government, and it seems like I should have just received these documents as a state representative but here I am suing,” he said in an interview.

Phelps said he paid for an attorney for the potential lawsuit out of his own pocket.

It wasn’t until after his staff met with the department and the office of the attorney general that the Democratic legislator received all the documents he requested.

Phelps began receiving documents in mid-December after his office met with a member of the attorney general's office and members of the Department of Environmental Quality. The attorney general's office told the department that it needed to release any documents it had, according to Phelps.

The department confirmed that it had further talks with the legislator’s office. “The MDEQ had follow-up conversations with Rep. Phelps’ staff to better understand the extent of his request, and later followed up with a much more in-depth response,” Shore said.

Phelps said he ended up with 20,000 to 30,000 documents after being told no documents existed.

The Mackinac Center for Public Policy has also had trouble obtaining documents. The Mackinac Center Legal Foundation in July filed a lawsuit against the department for delaying the release of emails related to the Flint crisis.

In March 2016, the Mackinac Center sent out a FOIA request for employees’ emails containing the word “Flint” from 2013 to 2015.

The department sought to have the Mackinac Center’s lawsuit dismissed, but Michigan’s Court of Claims denied the request.

“Although [the MDEQ] alleges that it received a number of requests for information related to the Flint water crisis, taking 60 days to produce records deemed to take 4.5 hours to discover and produce, at first glance, creates a question of fact as to whether [the department’s] delay was unreasonable or inordinate,” the court’s ruling said.

Mackinac Center Legal Foundation Vice President of Legal Affairs Patrick Wright, who is representing the Mackinac Center in the case, said, “Both legislators and the public should be able to get important documents from executive agencies easily.”

Wright said a legislative fix for untimely FOIA responses would be to put an end date on when agencies have to respond.

“There has to be a deadline by which an agency must respond,” he said. “It can’t just be ‘trust us,’ there has to be something more firm.”


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