LANSING, Mich. — 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.
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.”