By Paul Egan
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 email 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 email is just one of thousands the administration of Michigan 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 emails also revealed a potentially troubling trend: Many of the emails 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 is this week.
The "not subject to FOIA" label was not unique to the Rosenthal email.
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 emails 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 emails, 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 Oct. 13 when he sent a Flint water plan "action update" by email 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 email contained no legal advice.
Labeling an email as "not subject to FOIA" doesn't make it so, which is demonstrated by the fact dozens of Flint water emails that were marked up that way have seen the light of day.
But Briggs-Bunting and other advocates of open government said the emails 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 emails 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."
Agen, Snyder's chief of staff, 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 are 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.
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