A liberal advocacy group seeking copies of state government emails sent through private accounts made its case to the Michigan Supreme Court Wednesday morning, arguing that release of the emails is a matter of transparency and accountability.
Michigan Attorney General Dana Nessel’s office, now defending the state in the case originally brought against then-Attorney General Bill Schuette, pressed the justices to dismiss the case based on a technical deficiency — the group’s initial complaint lacked a required verification. Plus, the office’s attorney said, those emails don’t even exist.
Mark Brewer, the lawyer for Progress Michigan, said the case could have wide-ranging effects on private citizens seeking public records. If the state’s argument prevails, it can be used to delay and reject other requests for public records under Michigan’s Freedom of Information Act (FOIA), he said.
The state is “trying to create every possible procedural obstacle,” Brewer said. “Rather than just giving us the emails, they create all these reasons we can’t have them.”
The case stems from a public records request Progress Michigan filed with the state in 2016 after the group said it discovered through another request that Schuette and high-ranking aides were using personal email accounts to conduct public business.
Progress Michigan requested those emails and was denied; the Attorney General’s department said it had no records of work emails sent through private accounts. Progress Michigan sued Schuette’s office over the decision with just a week left in the 180-day window to file a lawsuit. But the suit didn’t include a document verifying the allegations, which the Attorney General argued is required under Court of Claims rules. Progress Michigan submitted an amended complaint after the window closed, and the state said that disqualifies the suit.
“At issue today is not whether personal email accounts used for official business are subject to the FOIA, they are. Or whether the state has an obligation to be transparent and provide information in response to FOIA requests, it does,” Kyla Barranco, the attorney representing the Attorney General’s office, told the justices Wednesday.
Rather, the issue is how and when the state can be sued in the Court of Claims, and Progress Michigan’s errant filing disqualified it, she said. “There is nothing strict, as opposed to being merely reasonable, in concluding that six months means six months.”
When asked by Justice Richard Bernstein why the state doesn’t just turn over the emails, Barranco said the emails don’t exist — and even if they did at some point, it’s possible that they were deleted in the course of regular record upkeep because “there are various retention schedules that apply to [preserving government] documents.”
If the Supreme Court sides with Progress Michigan by ordering the case back to the Court of Appeals, the group will get the chance to figure out whether the documents were destroyed, said Executive Director Lonnie Scott.
“We want to know if those records existed, were they maintained properly? Were they illegally deleted?” Scott said. “I think that the public has a right to know.”
While the court heard arguments in the case Wednesday, it will issue an opinion at a later date.
The issue of public officials using private email accounts for government business has flared up at the state and national level in recent years from the Flint water crisis to the Trump and Obama administrations, often raising the question of whether it’s done to evade public scrutiny of elected officials or other government employees.
Gov. Gretchen Whitmer banned the practice within state government early last year, though her order doesn’t include other kinds of communication such as text messages, saying the move “underscores the high expectations and integrity Michiganders should expect from the dedicated public servants who serve in state government.”