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Think tank wins lawsuit to review U. Michigan scientists’ COVID advice to Gov. Whitmer

A conservative think tank has succeeded in getting email communications between Michigan Gov. Gretchen Whitmer’s team and University of Michigan epidemiologists turned over after a year-and-a-half-long legal battle.

“The received records offer a glimpse of what went into the decision making process for the Michigan Safe Start Plan,” the state’s COVID mitigation reopening guidelines for employers and the public, stated Holly Wetzel, director of public relations for the Mackinac Center for Public Policy, in a March 17 email to The College Fix.

The center received unredacted emails regarding COVID reopening policy guidance from the University of Michigan on January 28, approximately one month after declaring victory in the lawsuit to acquire them, according to Wetzel.

In an earlier email to The Fix, Wetzel stated, “We submitted the initial Freedom of Information Act request in May of 2020 after [Whitmer] announced earlier that month that she was working with officials from the University on what reopening metrics to use.”

Michigan is one of the few states in the U.S. whose governor’s office and legislature are both protected from the Freedom of Information Act, but it worked closely with University of Michigan scientists to devise COVID reopening policy, Wetzel confirmed. To seek clarity regarding this policy, the Mackinac Center had no recourse but to request the documents from the university.

Specifically, the center requested any email correspondence between three specific University of Michigan epidemiology faculty members and any official state government email addresses. This initial request was filed on May 13, 2020, but was expanded on May 27 to include any emails involving the Michigan Safe Start Plan.

Initially, the university only partially complied with the FOIA request, providing the Mackinac Center with heavily redacted copies of the documents.

In response, the center filed a lawsuit against the university in November 2020 with the Michigan Claims Court, which was decided in their favor more than one year later.

Wetzel stated in her March 17 email that “from the documents, it can be seen that there may have been other factors besides science and data touted by the state that played a role” in the government’s decision-making during COVID.

University of Michigan claimed emails were exempt from FOIA

To defend its redactions in court, the university had claimed that the documents are legally exempt from disclosure under the Freedom of Information Act because they can be classified as “frank communications,” or information “of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action.”

However, the court found that the exemption could not be claimed under Michigan law because the statute only applies if “the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.”

Court ruled in center’s favor after more than a year

Since the university’s communications that may have influenced government action during COVID were “a matter of potentially significant public interest,” the center had a right to review them unredacted, the court ruled in December 2021.

According to Stephen Delie of the Mackinac Center, as quoted in the center’s news release on the lawsuit victory published in December 2021, “It should not have taken a year and a half for the public to receive answers about the [COVID-19 mitigation] policies that shut down their businesses, forced them to stay at home, prohibited them from buying paint or gardening supplies and restricted their access to healthcare, among many other things.”

“Increased transparency is more critical than ever before. This decision is a long-delayed victory for Michigan residents, but more can and should be done to shed light on the decisions being made by politicians and bureaucrats.”

Mackinac Center requested additional documents to obtain a fuller picture

In her March 17 email, Wetzel added that the center has requested additional documents from the university to provide a broader picture of the guidance provided by the staff.

“After receiving the un-redacted emails from the University of Michigan,” she stated, “the Mackinac Center sent a follow-up FOIA request, expanding on the initial time period and added additional people. We still have a lot of questions about how the reopening decisions were made and we hope that these additional requested records can help shed further light on the science and data that was relied on.”

“It’s been two years since the state shut down and we still don’t have answers on what exact science and data were used when determining policies that impacted the lives and livelihoods of ten million people,” Wetzel told The Fix.

The Fix contacted the office at the University of Michigan responsible for handling FOIA requests on January 21, 2022, asking for details of their reasoning in withholding the full documents from the Mackinac Center and for any comments on the lawsuit, but received no response over several weeks.

MORE: University of Michigan law students devise legal challenge to governor’s COVID stay-at-home order

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About the Author
Ethan Connor-- University of Northwestern, St. Paul