Michigan lawmakers want to ban government from using code to thwart records requests

A new bill aims to protect public access to government communications under the Freedom of Information Act by preventing the government from speaking in code to thwart records requests.

Sen. Ed McBroom, R-Waucedah Township, introduced the legislation after a lawsuit claimed Michigan Gov. Gretchen Whitmer's administration used encrypted Greek letters to discuss the Benton Harbor water lead crisis to avoid public scrutiny.

“My legislation would help ensure FOIA works to help hold government officials accountable by clarifying the intent of the law and the penalties for failing to do so,” McBroom said in a statement. “Whether this incident was the result of a coding glitch or an intentional effort to hide their statements from the public, we should all be able to agree that we need better protections in place to preserve communications in a way that doesn’t avoid honest disclosure."

McrBroom said he started working on this bill four months ago.

Senate Bill 467 aims to increase fines and penalties under the state’s FOIA law, by forbidding “a government body to prepare, knowingly possesses or retain without correction, a public record that, for the purpose of avoiding disclosure of the record, use code words or phrases, symbols, foreign language or non-English letters, or content not readily associated with the true subject or, if created or maintained electronically, is not readily discoverable by an automatic search in English.”

The alleged encoded email was part of an analysis from a multi-client lobbyist who previously worked in Genesee County and was asked to consult on the state’s response to a Benton Harbor lead water problem given his experience during Flint’s water crisis.

A Sept. 29, 2021 email from him to a Whitmer environment advisor used Greek letters. When translated, it read: “Hot off the presses. As I warned there are some major red flags. It seems like we are back at square one having not learned from Flint.”

The email was uncovered during the discovery of a class-action lawsuit by Benton Harbor residents about the Whitmer administration’s actions to the crisis. A June court filing argued the use of Greek letters meant the email would have been excluded from any public records request for government communications that contain the word “Flint.”

“My intention has always been to fix an apparent problem so no one in the future is inspired to try to hide information this way while also bringing attention and accountability to this situation if, in fact, it was intentionally done,” McBroom said.