State Environmental Department Stiff-Arms Open Government, FOIA Law

Michigan’s FOIA law states: “[A]ll persons . . . are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.” 

When the Michigan Department of Environmental Quality responded to the Mackinac Center’s FOIA request for documents about the Flint water crisis with a long delay, it undermined this policy. We responded by suing the department, and Court of Claims Judge Cynthia Stephens rejected the MDEQ's attempt to dismiss the suit. 

The matter began with a simple FOIA request filed on March 30, 2016. The Mackinac Center sought emails from two employees as well as the names of any employees transferred or reassigned due to the Flint water issues. On April 21, the Department of Environmental Quality said it would take 4 ½ hours to compile the data, which would cost us $114.35. We sent a check for the full amount and the department cashed it on May 6, 2016. On June 21, the department released a number of emails on its website, but not all of the ones we requested. We filed suit on July 14 and received the documents we asked for on July 29, or 121 days after the request was initially filed.

The department then sought to dismiss the suit, arguing that because the Mackinac Center now had the documents, no suit was allowed. In a Dec. 28, 2016 opinion, the judge allowed the suit to continue. She noted the department “estimated that it would take approximately 4 ½ hours to produce the requested records. … However, despite this relatively short time estimate, [DEQ] proceeded to give — and adhere to — a 6-day ‘best efforts’ estimate for producing the records.”

Accountable government requires transparency, especially during times of crisis. While the department deserves most of the blame for delaying reasonable requests for information, the Legislature must take a portion too. When it amended the FOIA law in 2015, it did not set a firm time limit for agencies to deliver documents. Because it settled on a “reasonable” standard, citizens will often be forced to sue to get government officials to comply. But litigation is often costly and time consuming. The Mackinac Center brought this suit to highlight the problem and perhaps create a useful legal precedent. People and the press have a right to transparency even if it’s inconvenient to the government agency receiving a FOIA request. The actions of the Department of Environmental Quality helped lead to a public health crisis. Its legal intransigence and foot-dragging do not help it regain trust and credibility with a public seeking to fully participate in the democratic process.