Flint water e-mails written to stay secret Paul Egan, Detroit Free Press
Lansing Bureau LANSING ' In mid-October, as the massive scope of the Flint
drinking
water scandal and public health crisis was beginning to sink in, Michigan
Department of Environmental Quality engineer Adam Rosenthal wrote an'e-mail to
two of his then supervisors in the department's drinking water section. The
contents of the e-mail were purely factual: A'Flint resident's name and address,
along with two lead readings for water'samples taken from faucets at the home.
But typed just beneath the message were the words: "Preliminary and Deliberative
not subject to FOIA. The Rosenthal e-mail is just one of thousands the
administration of Gov. Rick Snyder has made public related to the lead
contamination
of Flint's drinking water after calls from the public, elected officials,
advocates for open government'and the media for information as to who knew what
about the public health crisis and when, and what was done in response.
Thousands of others have been released voluntarily by the governor, whose office
is not subject to Michigan's Freedom of Information Act, or FOIA. Besides
answers to some questions, a'review of the e-mails also revealed a potentially
troubling trend:'Many of the e-mails display what appears to be an active
effort by state employees to avoid disclosure of public records under FOIA.
"There's
a culture in state government that's filtered down to employees that says,
'That's just FOIA; this is how you get around it,'" said Jane
Briggs-Bunting,'president
of the Michigan Coalition for Open Government, which promotes government
transparency year-round, but especially during Sunshine Week, which begins
Monday.
The "not subject to FOIA"'label was not unique to the Rosenthal e-mail.
Michigan's FOIA 'law includes an exemption for records that are notes between
and
within government agencies that are advisory in nature, don't deal with purely
factual matters, and are preliminary to an agency's final determination
of a policy or action. Many draft reports are withheld from disclosure based
upon what is sometimes called the "preliminary and deliberative" exemption.
But even when it meets the other criteria, the exemption is only supposed to be
applied when the public interest in encouraging frank discussions among
government officials clearly outweighs the public interest in disclosure. The
e-mails released related to the Flint crisis show that although'in some cases
a draft document was being discussed, some DEQ and Department of Health and
Human Services'employees appeared to include "preliminary and deliberative,"
and "not subject to FOIA" as standard subject headings on e-mails, regardless
of the contents of the messages. Also popular as a subject heading: "Attorney
Client Privilege. Not subject to FOIA. That was the heading former DEQ Director
Dan Wyant used on Oct. 13 when he sent a Flint water plan "action update"
by e-mail to six officials in the governor's office: Allison Scott, Dennis
Muchmore, Jarrod Agen, Beth Emmitt, Morgan Bedan'and Sarah Dickinson. Again,
Michigan's FOIA law exempts from public disclosure records that are subject to
attorney-client privilege. Problem is, neither Wyant nor any of the recipients
is an attorney and ' not surprisingly ' the e-mail contained no legal advice.
Labeling an e-mail as "not subject to FOIA" doesn't make it so, which is
demonstrated by the fact dozens of Flint water e-mails that were marked up that
way have seen the light of day. Many state government e-mails released
over the Flint water crisis have subject headings claiming they are exempt from
FOIA. (Photo: Detroit Free Press) But Briggs-Bunting and other advocates
of open government said'the e-mails are disappointing because of what they
demonstrate about many state employees' attitudes about the public's right to
access government records. Also, such labels may be enough to pause or'satisfy
a state FOIA coordinator who decides which e-mails will be released. "They
definitely learned the code words," said Melanie McElroy, executive director of
Common Cause in Michigan. Exempt from FOIA in the governor's office, "this
administration prefers to operate in secret, and that has unfortunately spread
to other departments as well. Snyder Chief of Staff Agen said Snyder is
examining possible changes to the executive office FOIA exemption. More
generally, "we want to clear up confusion over what does fall under FOIA and
what
doesn't," said Agen, who feels some of the labeling may display a lack of
understanding of how FOIA works. The governor, Agen said, wants to improve
transparency
while also preserving the ability for officials to speak frankly when
deliberating and formulating policy without having to fear whatever they say
will
be made public. Michigan is one of only two states in which both the governor's
office and the Legislature is exempt from FOIA. The Flint crisis demonstrates
one of the reasons that needs to change, said McElroy. "I really think that
passing FOIA reforms that remove the executive exemption could help keep crises
from happening in the future," she said. Contact Paul Egan: 517-372-8660 or
pegan@xxxxxxxxxxxxx. Follow him on Twitter @paulegan4.
