(Source: MIRS.news, Published 03/15/2024) A six-month MIRS investigation of four Michigan state departments failed to produce any internal documents written in Greek letters. That finding supports the administration's claim that a coding glitch turned a critical message written by a state department consultant regarding the Benton Harbor water crisis into foreign symbols.
MIRS sifted through thousands of pages of documents released by the Department of Health of Human Services (DHHS), the Michigan State Police (MSP) and the Department of Environment, Great Lakes and Energy (EGLE) only to find that Greek letters weren't used as code to escape the detection of Freedom of Information Act (FOIA) requests.
The request came after an email chain sent by Andrew Leavitt, a consultant for EGLE, appeared in federal court documents in Greek. When translated, it warned about the lead levels in drinking water throughout Benton Harbor reaching Flint-like proportions.
Gov. Gretchen Whitmer insisted it was a coding error. MIRS couldn't find another case in which Greek letters were used to craft a message, adding credence to her argument.
However, what MIRS discovered in the course of requesting documents within state departments containing Greek symbols was varying levels of compliance with the letter of the state's FOIA law throughout state government.
Around Aug. 31, 2023, MIRS asked DHHS, EGLE, the Department of Corrections (DOC) and the MSP for all documents containing Greek letters during a certain period of time.
DHHS was the first to return the FOIA request. There were several emails that were advertisements that included a Greek delta symbol, but department emails mostly contained reference to COVID-19 strains or COVID-19 related information. They also reached out to see if MIRS would narrow the search, because of more than 14,000 employee’s emails.
ELGE was next, but not before having to redo the FOIA after a bill of more than $28,000 was presented. The emails returned had to do with environmental factors and scientific studies done with EGLE.
The Michigan Department of Corrections (DOC) returned nothing and reached out to MIRS several times to clarify the request. The clarifications removed the multitude of email advertisements, which seemed consistent through all government departments.
The MSP took six months to the day to return. While the FOIA coordinators reached out several times, they also required refiling of the request after the exponential volumes of articles returned contained Greek letters. The majority of what was eventually returned was discussions about delta-8 and delta-9 THC, the active psychoactive compounds in cannabis. There was also a letter written in Greek from a Greek handwriting expert, but it was also translated.
The consistency between the four agencies was that each took the 10-day extension. The rate charged, the redaction frequency, and time taken to return the FOIA were all completely different. Even the means of submission could vary widely.
These were inconsistencies that Mackinac Center for Public Policy Open Government Director Steve DELIE said were consistent with all the state departments.
“Unfortunately, Michigan is not particularly great with how FOIA is applied,” he said.
He said he's also seen instances of “excessive fees, excessive delays, and excessive redactions.”
He said FOIA was meant to get information to the people who need it quickly, but he couldn’t point to a single time a FOIA was filed where the agency didn’t take the maximum amount of extension time, which in Michigan starts at a five-day response period and allows for a 10-day extension.
“That’s supposed to be an exception. It isn’t. It’s the rule,” he said.
He said that sets an automatic three-week time frame before the filer knows how much the information would cost to retrieve or if the information exists.
If the request is accepted, there is no way of knowing how long it would take for the information to be returned.
“It took you six months to get the information you were able to get, but really it should have taken you the same month as you uncovered the story,” he said.
He also said for the average person, they'd have to weigh if the possibility of getting the information was worth the amount of money asked for by the agencies, which is where the excessive fees act as a detractor and avoidance technique.
“It’s not supposed to be free, because we don’t want public bodies to be overwhelmed with expensive requests that drain the public’s resources, but it is supposed to be cost-effective so ordinary citizens can obtain the information they seek,” he said.
Delie said without that information, journalists and citizens can't hold government accountable.
He said it isn’t uncommon to get a request for thousands of dollars. Michigan State Police Homeland Security famously charged the Mackinac Center for Public Policy nearly $7 million for one request in 2009.
Drilling down to access a single document or series of emails can lighten that financial burden too, according to Delie, or there was the appeal option.
“But administratively you are appealing to the same agency that essentially said no in the first place, so that can have mixed success,” he said.
He said there were many who ended up walking away just because of the fees.
He also pointed to excessive and inconsistent redaction techniques that could avoid giving information, which was something the MIRS FOIAs did not experience, this time, as a problem. MDHHS had one medical record document fully redacted, which is exempt from FOIA.
Delie said the FOIA coordinators should be reaching out to the people making the requests for clarification and asking questions about what they are seeking.
“What I saw coming out of your request isn’t abnormal, but it does show the spectrum, and the inconsistency, and the need for some good training of FOIA coordinators to have more consistent responses,” he said.
FOIA Services Michigan Publisher Chris DeWitt said much of the problem seen with the element of time revolves around the resources that are given to those agencies to deal with FOIA requests.
De Witt said he saw understaffing in many departments and the time also depended on the volume of the request. If it was one page, it should be returned pretty quick, but a large request could take months. The MIRS MSP request returned more than 10,000 pages of emails, but any change to the request would have required a completely new FOIA filing.
He said in the service he provides, he sees thousands of FOIAs and the redaction inconsistency stood out.
“There is a lack of uniformity between the departments and that sometimes can be frustrating,” De Witt said.
He said the onus wasn’t on the FOIA coordinators, who were doing a wonderful job. He said it was due to the departments themselves and the resources provided to the FOIA departments.
“The FOIA coordinators aren’t waking up every morning saying: ‘How can we not give out this information?’ That’s not the way they work, in my experience. I think they really do try to help people as much as possible,” he said.
NowKalamazoo Publisher and President of the Local Journalism Foundation Ben Lando said there were some tips that needed to be followed when filing a FOIA to any governmental body.
“Try to avoid having to file a FOIA request,” Lando said.
He said it was easier on a local level, but any time a good working relationship could be established with a department, getting information was much smoother than going through the FOIA request.
“Many times you can get the information if you just ask and have the narrowest focus as possible,” Lando said.
He said the same advice applied to when you had to file a FOIA, in making sure the request was as narrow as possible to be able to pinpoint the pertinent information.
Lando also pointed to the extensions that were used as delay tactics or the invocation of exemption or privilege to redact information.
“You spend money and pay for the document that has so much black ink that it is not usable,” he said.
He said one of the biggest things he sees is how the government agencies view information versus the call for government transparency, which needed a paradigm shift.
“The information that people are requesting belongs to them by virtue of the type of government we have in this country,” Lando said.
He said the FOIA request was “an attempt to return the information to the rightful owner.”
Lando said he would like to see information being made readily available, which would allow for access to that information and take care of workforce issues.
“The ethical considerations could be prioritized if we removed the focus on gatekeeping from the equation, and I think that’s a difficult thing for folks on the government side to wrap their head around,” he said.
He said full governmental transparency is the one issue that is truly bipartisan in the opposition.
“Both sides of the aisle spend a lot of time hemming and hawing over things that most citizens agree on when asked how to make more transparency. It doesn’t require a lot of back and forth from the Legislature. Just start with everything being available and work your way back,” Lando said.
