Memo: Whitmer staff reviews FOIA requests, even though she’s exempt from law

LANSING — Gov. Gretchen Whitmer is not subject to the Michigan Freedom of Information Act, but an internal memo shows her legal team is asking to review any communications from her office before they are released to the public by state departments that must follow the law.

Whitmer’s spokesperson called the policy a good government approach to increase efficiency, and officials from past administrations said governors’ offices typically expected advanced warning before any sensitive disclosures. 

A leading open government advocate called the Whitmer memo “problematic,” however, because the review could further slow public records requests. And a conservative activist called Whitmer hypocritical given her 2018 campaign promises to boost transparency in her office.

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In a memo first issued in July 2019 and revised in April, Whitmer chief legal counsel Mark Totten directed department and agency directors to notify the governor’s team when certain “legal actions or developments arise,” including pending public records disclosures involving Whitmer or staff.  

“Please provide the language of the actual request and a copy of all documents that include an (executive office) communication,” the memo states, according to a copy Whitmer’s office provided upon inquiry by Bridge Michigan. 

The governor’s office of legal counsel “will promptly complete its review and notify the department that the review is complete,” the memo continues. “The department can then provide the responsive documents to the requestor.”

The memo asks departments to notify the governor’s communications director of “any FOIA response that could generate a media story now or in the future,” along with any requests sent to multiple agencies so the executive office “can assist with ensuring a timely, coordinated response.”

Lisa McGraw of the Michigan Press Association, which advocates for government transparency, called the Whitmer administration’s advance review policy “problematic” because it “just slows everything down.” 

“Obstructionist is the word that comes to mind,” she said. 

Under Michigan law, government agencies must acknowledge FOIA requests within five business days and can then extend the response time by 10 days. Complete responses, however, can often take weeks or even months.

Whitmer spokesperson Bobby Leddy said the executive office review occurs alongside a department’s typical FOIA process and adds very little time. 

The governor’s office “never” approves, rejects or denies the release of public records, he said.

‘Fully informed’

Michigan is one of two states in the nation that fully exempts the governor’s office and Legislature from public records requests, leading to a failing grade on transparency by a national watchdog group. 

As a candidate in 2018, Whitmer vowed to voluntarily subject her office to FOIA requests but has not done so. 

Michigan’s FOIA law, like the federal version, guarantees public access to records of most government bodies, including city and county governments and state departments. But some materials are exempt from disclosure, including those subject to attorney-client privilege.

The Whitmer administration memo “is meant to ensure the executive office of the governor is fully informed about legal developments across state government,” Leddy told Bridge Michigan in a statement.

“As the executive office for the state of Michigan, it is important for our team to receive frequent updates from departments to ensure that state government is operating with the best information to make decisions that are in the best interest of Michiganders.”

Former Gov. Rick Snyder’s administration did not have a similar rule according to former communications director Ari Adler, who said reviewing FOIA responses would be a “pretty large amount of work” for the executive office.

“There’s no way we would have spent our time doing that, and I certainly don’t think our legal counsel would have either,” he told Bridge Michigan. 

However, Adler acknowledged that Snyder administration officials would sometimes give each other a “courtesy  call” before sending out public records “so we didn’t get blindsided by a reporter calling us out of the blue on it.”

The Whitmer memo appears to be a “formal version” of an informal expectation in previous administrations, said attorney Steve Liedel, who worked as legal counsel to former Gov. Jennifer Granholm, a Democrat. 

Granholm’s office didn’t have a written policy to review any FOIA responses before they were released to the public, but it was “certainly understood” that senior department leadership would provide updates on requests associated with the executive office, he said. 

That approach was largely driven by Granholm’s communications team, but it made sense for legal counsel to be aware of FOIA requests as well, especially since Republican Attorney General Mike Cox was often at odds with the Democratic administration, Liedel told Bridge Michigan.

“It wasn’t any sort of a gag order or attempt to centrally coordinate it, but certainly you can appear like you don’t know what you’re doing if you’re the governor or her team or a department director and you’re caught off guard by an issue raised in a FOIA,” he said. 

There wasn’t a written FOIA review rule under former Gov. John Engler either, but the executive office routinely discussed public records requests with various state departments, said John Truscott who served as communications director for the Republican governor. 

“If there was something that we thought was politically sensitive, they’d mention it to me, and then I could ask questions,” Truscott said. 

Truscott said he did not recall Engler’s office ever asking to review FOIA responses before they were sent, but he said he thinks the Whitmer administration policy makes some sense given the increased volume of records requests. 

“Because of electronic communications and everything else, there’s just so much more available,” Truscott said. “I have to say, I probably would have done something similar just so that I could be informed.”

‘Awaiting approval’

Details of the Whitmer administration memo have not been reported before. 

Its existence came to light as part of a Unemployment Insurance Agency response to a conservative advocacy group called Michigan Rising Action, which had requested emails between the embattled agency’s interim director and Whitmer administration officials. 

“In accordance with the April 2021 Memorandum, we are awaiting your approval prior to releasing this information to the requestor,” FOIA coordinator Ivory Bennett wrote in a June 16 email to Whitmer administration officials. 

“It’s good to go,” interim UIA Director Liza Estlund Olson responded less than an hour later, indicating that in this instance, the executive review added only a marginal amount of time to the process.

Eric Ventimiglia, executive director of Michigan Rising Action, argued the policy memo contradicts transparency pledges by Whitmer, who as a candidate vowed to subject her office to the Freedom of Information Act if legislators did not do so by changing the law. 

In 2019, Whitmer signaled support for House legislation that would subject the governor and Legislature to public records requests, but it did not pass the Senate to reach her desk.

Allowing the governor’s office “advanced warning when things that their administration has been doing are going to be made public probably helps the governor’s press team” spin the narrative, Ventimiglia said. “The ‘rules for thee but no for me’ continue on in this administration everywhere you look.”

But in some instances, an executive office review could actually help speed up the process in the event someone in a state government department is “nervous” about a public records request and attempts to “slow walk it,” said Liedel, who was legal counsel to former Gov. Granholm. 

“The governor has a constitutional responsibility, actually, to direct and supervise the offices, and the governor is certainly held responsible for departments that report to her,” Liedel said.

Whitmer’s office argued the memo is consistent with state government directives the governor issued early in her term to try to speed up public records requests and reviews.

“Gov. Whitmer has been clear that Michiganders deserve a state government that works every day to serve people in the best way possible,” Leddy said. 

“To this end, our office has occasionally issued executive directives or guidance when there is an opportunity to improve a process or procedure to ensure that state government can operate more efficiently, which can in turn lead to better service or taxpayer savings for Michiganders.”