Court Rejects MDEQ’s Avoidance Tactics in Flint FOIA Lawsuit

Motion to dismiss denied by State of Michigan Court of Claims

Tuesday, Jan. 10, 2017

Contact:

Chantal Lovell
Media Relations Manager
989-698-1914

or

Patrick Wright
Director, Mackinac Center Legal Foundation
989-698-1933
wright@mackinac.org

MIDLAND — The State of Michigan Court of Claims has denied the Michigan Department of Environmental Quality’s request to dismiss a lawsuit filed by the Mackinac Center Legal Foundation.

Last July, the Foundation filed a lawsuit against the MDEQ for delaying for months the release of emails related to the Flint water crisis. Rather than provide an answer to the Mackinac Center’s complaint, the MDEQ filed to have the case dismissed.

“Our FOIA laws guarantee people of all views have access to timely information to fully participate in the democratic process and the court’s decision recognizes this,” said Patrick Wright, vice president for legal affairs at the Mackinac Center.

On Dec. 28, the Court denied MDEQ’s motion to dismiss. It held that the facts of the case indeed raised questions as to whether the department unreasonably delayed responding to the Mackinac Center’s FOIA request.

On March 30, 2016, the Mackinac Center emailed the MDEQ’s Freedom of Information Act coordinator to request all emails from MDEQ employees Liane Shekter-Smith and Stephen Busch from 2013 through 2015 containing the word “Flint.” The Center also requested the names of “any employees transferred, reassigned, or suspended as a result of the Flint water issues.” Finally, the request sought the current job titles of Shekter-Smith and Busch.

On April 4, the MDEQ sent a letter back, notifying the Center that the department would take the 10-day extension, allowable under current FOIA law. Then on April 21, 16 days later, the MDEQ sent the Center a cost estimate of $114.35 for two and a half hours of technical staff time and two hours of administrative staff time, saying both would be required to respond to the request. The Center sent a check for the full amount — double the 50 percent required by statute — on April 26 and the MDEQ cashed the check on May 6.

Despite needing only four and a half hours of staff time to respond to the request and despite the MDEQ’s own guidelines for responding in a timely manner (usually 10 business days) once a “good faith” deposit is received, the department did not fully respond to the request until July 29, 2016, nearly three months after the FOIA request was sent.

“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 MDEQ’s) delay was unreasonable or inordinate,” the Court’s ruling reads.

The denial of the MDEQ’s motion for dismissal means the case will continue, something Wright said is good for the state and its residents.

“Accountable government requires transparency, especially during times of crisis,” Wright said. “People and the press have a right to transparency even if it’s inconvenient to the government agency.”

Related documents:
Denial of MDEQ’s Motion
Complaint
Original FOIA request
10-day notice from MDEQ
MDEQ records procedure
MDEQ cost estimate
MCPP payment to MDEQ for records
May correspondence with MDEQ
June correspondence with MDEQ

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