Michigan government lacking in transparency

The Mackinac Center supports the right of the people to know what their governments are doing

Michigan ranked last among all the states for government transparency in 2015, according to the Center For Public Integrity, and not much has changed since. Gov. Gretchen Whitmer campaigned in 2018 on a promise to be an historically transparent governor, but that hasn’t panned out. Legislators and the governor are still exempt from the Freedom of Information Act, to start with.

Which is why it is time for Michigan residents to demand that candidates for office promise to take action to ensure transparency, from the moment they take office. Candidates who won’t do that should not enjoy the privilege of occupying an office that exists to serve the people.

Transparent government is a nonpartisan issue any Michigan resident can get behind. Elected officials are not prom kings and queens who win merely a popularity contest. Tens of thousands of people — in the governor’s case, millions of people — chose them to wield power and represent their interests. This is serious business.

The Mackinac Center for Public Policy; its news site, Michigan Capitol Confidential; and its legal arm, the Mackinac Center Legal Foundation; have taken up the cause of transparency. We believe in shedding light on what happens behind government’s closed doors. This takes the form of filing FOIA requests, reporting on them, and taking governments to court when they rebuff calls for transparency. We have been won judgements or settlements in multiple lawsuits against various units of government when they didn’t cooperate in sharing information that concerned citizens ask for.

“If the Legislature won’t act,” Whitmer said in her campaign’s “Sunshine Plan,” “I will use the governor’s authority under the Michigan State Constitution to extend FOIA to the lieutenant governor and governor’s offices.”

Not only did that not happen, but Whitmer fought hard against transparency.

Whitmer was never less transparent than in her response to the COVID-19 pandemic, when her remedies, including lockdowns, had a widespread impact. She frequently cited science and data when she gave orders to curtail state residents from earning a living. She cited science and data when she told retail stores to tape off the seed section, but when the media asked for the science and data, it didn’t exist.

Whitmer’s power did far more than inconvenience seed-buyers. The Mackinac Center Legal Foundation represented a man who said her orders on medical treatment led to him getting gangrene. The treatments he needed were merely elective, the state said. And children did not receive long-recommended vaccines, in large measure due to her orders. Where was the governor’s science?

When the state ordered gyms to close, some gym owners took it to court. A federal judge rebuked the Whitmer administration, saying it had not offered a rationale.

The judge wrote of state officials:

“Defendants emphasized the low bar: All that needed to be presented was a reasonably conceivable set of facts that connected the continued closure to protecting the public health. But when asked, even (their) counsel was unable to state a rational basis to support the position that indoor gyms must still be closed. Defendants merely reiterated that a threat of transmission exists at indoor gyms, and the threat of transmission must be minimized.”

In other words, there was no science and no data.

Whitmer’s edicts were struck down by the Michigan Supreme Court after the Mackinac Center Legal Foundation sued. The court said the law the governor relied on was unconstitutional. Three departments of the state later paid the Mackinac Center $200,000 in attorney fees as a result of that lawsuit.

Unfortunately, the ruling did not make things easier when we tried to learn more about the state’s work to count the number of COVID-related deaths in long-term care nursing facilities. The Department of Health and Human Services, lead by officials the governor appointed, refused to release the data, even after we submitted a FOIA request.

The Mackinac Center Legal Foundation, along with Pulitzer Prize-winning journalist Charlie LeDuff, sued for the records and won. But even then, the health department only provided a limited amount of information.

Representatives of the legal foundation testified in a legislative oversight committee on their wrangling with the department, which had refused to be honest. The auditor general later announced it would audit the records of nursing home deaths.

The audit showed that nursing home deaths were 42% higher than the Whitmer administration had claimed.

But enough about the governor. She is not the only one in Lansing who prefers secrecy.

The Legislature has a track record of hiding billions in backroom deals that send taxpayer dollars to private interests.

To make sure the details stayed secret, representatives and senators put into law a nondisclosure provision when they gave General Motors billions of dollars. Nobody could disclose just how much GM was getting from the state. The law even penalized anyone who would divulge details of the secret deal. Lawmakers established a $5,000 punishment for anyone who told the taxpayers how much their representatives were spending in corporate welfare.

A Michigan resident pursued the matter to the state Supreme Court, calling on it to force the Legislature to disclose the agreements. The Michigan Supreme Court, as it considered the case, asked the Mackinac Center Legal Foundation to submit an amicus brief to explain some important points. The court sided with the plaintiff, and people found out that General Motors will get up to $3.8 billion in state money by the year 2030.

As the state Health Department and Legislature show, governments can refuse to disclose information or even make it illegal to reveal it. But that’s not the only way to thwart transparency. Another is to require for prohibitive fees from anyone who submits FOIA requests.

The state Health Department said it would require a payment of $70,000 before it would to fulfill a FOIA request. In this request, the Mackinac Center wanted information about the state’s contracts with a consulting company; a court had ruled that the company had contributed to the opioid epidemic. The department had also rewarded the company with lucrative contracts to help it respond to the COVID-19 pandemic. Oops.

At the local level, the Rochester Community School District charged parents $176,000 for fulfilling a FOIA request. The district also called for a whopping $18 million payment for materials, in a separate request.

Michigan’s state government, and the governments of Michigan, have a transparency problem. Do the people who represent you defend your right to know?

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.