The Mackinac Center Legal Foundation filed a lawsuit Monday against the University of Michigan, claiming the University violated the Michigan Freedom of Information Act by refusing to provide adequate documentation of the process and reasoning used to support the state lockdown in March. 

The suit was filed in the Michigan Court of Claims following several attempts by the Mackinac Center to gain access to University correspondence to state officials regarding the state’s COVID-19 response. This correspondence includes reports of Michigan Medicine’s management of the COVID-19 pandemic, the implementation of the COVID-19 dashboard and reopening guidelines for programs like childcare and research. 

In a press release, Steve Delie, the Mackinac Center’s policy lead on transparency and open government, explained why they are seeking the full documentation of the University’s scientific and data-driven support of the statewide lockdown. 

“There has understandably been a lot of speculation surrounding the inconsistencies in Gov. Whitmer’s COVID-19 response plans,” Delie said in the press release. “The public deserves to know what data was used as the basis for these decisions that impacted their lives and livelihoods.”

The Mackinac Center filed their first FOIA request on May 13 for emails from University professors Marisa Eisenberg, Emily Martin and physician Vikas Parekh to and from any state employee regarding the COVID-19 response and reopening plans from March 1 to May 13. A second FOIA request for any emails with the terms “Michigan Safe Start Plan” or “Michigan Safe Start Map” was submitted on May 27. 

The University prepared the documents by Aug. 20 and estimated the total cost to be $2,124 for the first request plus $170 for the second request. The Mackinac Center paid the fees and received the documents by Oct. 5. 

The Mackinac Center then claimed that the documents and correspondence they received were heavily redacted. The University cited a “frank communications” exemption as the reason for the redactions. 

A frank communications exemption is applicable to communication between two public bodies when the communication is advisory in nature, the material is more than purely factual and is preliminary to a policy decision or determination. When a public body uses the frank communications exemption they must show in the instance in question that public interest in encouraging frank communications between officials outweighs public interest in disclosure. 

The Mackinac Center appealed these redactions and the frank communications justification and received more documents which they also said were heavily redacted. 

With the lawsuit, the Mackinac Center aims to make the University prove that the frank communications exemption applies to these documents and that non-disclosure is of greater public benefit than viewing the records. 

In an email to The Michigan Daily, University spokesperson Rick Fitzgerald wrote that the University administration was baffled by the lawsuit and will pursue a resolution in court.

“In response to the Mackinac Center’s FOIA appeal, the university provided 224 pages of documents with very modest redactions – mostly of email addresses for security purposes – perhaps totaling five pages,” Fitzgerald wrote. “That is in addition to the 155 pages of documents provided in the university’s initial response. The university will vigorously defend the integrity of our FOIA process in the Court of Claims.”

The Mackinac Center previously settled a lawsuit against the University in 2017 to release University President Mark Schlissel’s emails during and following the 2016 election. These emails frequently referenced Schlissel’s worries about President Donald Trump and, as part of the settlement, the University committed to improving its FOIA processes. 

Daily News Editor Hannah Mackay can be reached at mackayh@umich.edu.

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