A Michigan Senate Republican wants to prohibit the use of codes and symbols in public documents, an approach aimed at preventing secrecy designed to circumvent public records laws.
State Sen. Ed McBroom, R-Vulcan, a longtime open government advocate, argues the bill is needed because of a specific problem: In 2021, a lobbyist and adviser working with the governor’s administration Gretchen Whitmer on a water crisis sent an email to a key Whitmer adviser containing at least one illegible passage.
In the email obtained by Free Press, these phrases are in “symbols” font instead of English, making them indistinguishable until the message is replaced with a more traditional font.
Only then can the reader see what was sent: “Fresh off the press. As I warned, there are major red flags. It looks like we’re back to square one without learning from Flint.
The message, from lobbyist and consultant Andy Leavitt, came in an email to Kara Cook, then Whitmer’s senior energy and environment adviser. This happened at a time of growing public interest in the state’s response to a water crisis in Benton Harbora southwestern Michigan community with many lead service lines.
“My legislation would help ensure that the FOIA helps hold government officials accountable by clarifying the intent of the law and the penalties for non-compliance,” 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 agree that we need better protections in place to preserve communications. in a manner that does not prevent honest disclosure. “.
To be clear, most emails are not composed of symbols. Leavitt’s other comments provide scathing criticism of a draft document for Benton Harbor residents, but aren’t as broadly critical of the state’s response to the water crisis as the passage symbols.
On Tuesday, Leavitt said he was “absolutely not” trying to communicate by code. He said he thought he copied the bullet points from a document on his phone into an email. The bullets were apparently in the symbol font.
He then typed a few more sentences above the bullet points. These phrases appeared in English on a mobile device, but in symbol font when read on a desktop computer. La Presse Libre was able to reproduce this scenario.
It was a mistake, involving an error in copying and pasting information, which he says got out of control.
“I would say that people who know me know that I have never been shy about telling the truth and being honest with people. In life, the simplest answer is usually probably true. And this case is one of them” , said Leavitt.
“A bizarre copy-paste and formatting issue has created and spawned a huge conspiracy – largely around the idea that you could hurt the governor with this – and that couldn’t be further from the truth. I did nothing but copy-paste a document and send an email.”
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Earlier this summer, conservative media reported on the email containing symbols. The story made its way to several prominent conservative outlets, including the New York Post, exposing what Leavitt described as the conspiracy surrounding the email.
Representatives for Whitmer declined to comment.
Benton Harbor lawyers and residents are suing The state, responsible for the water crisis in the southwestern Michigan city, was the first to discover the email, pointing it out in its federal lawsuit. Mark Chalos, a Tennessee-based attorney representing Benton Harbor residents, said it doesn’t matter that Leavitt intentionally wanted to send a coded message.
“However, these very damning statements in this email turned into Greek symbols, whether it was done when the guy typed them or when they presented it to the public and to us, the fact remains that these very damning statements were not readable to the public. public or the people of Benton Harbour. How the sentences were concealed is not very important to us,” Chalos told the Free Press.
His team referenced the symbols in a Federal Court filing. The state had the opportunity to explain in a response how the message was made public via email. He does not have.
The Free Press submitted a Freedom of Information Act request to two Michigan departments; copies already provided to the Free Press indicated that the leaders of the two agencies had received the email.
The Michigan Department of Health and Human Services denied the request, saying the system the state uses to quickly search emails cannot do so using symbols. A comparable manual search would cost “hundreds of thousands of dollars”.
Michigan’s Department of Environment, Great Lakes and Energy also initially denied the request, but later provided the email after Free Press asked a department spokesperson why the agency could not locate the communication.
“The only reason we have FOIA and other government transparency provisions is to make sure our government is honest with us. I mean, because it’s our government. We pay for it, we elect these people,” McBroom told the Free Press.
“If they can be allowed to hide their communications and talk to each other in codes, that’s just against those transparency laws, we might as well not have them at all.”
McBroom’s bill creates a new section of the Freedom of Information Act, outlining the proposed prohibited behaviors. Under the proposed measure, a state agency violates archival laws if it creates or maintains a public record that includes “words or coded phrases, symbols, foreign language, or non-English letters or characters, or any other content that is not easily associated with the real topic”. folder…”
If an agency has a record that uses a language referenced in this bill and that record is subject to disclosure laws, it must create an English description that shows the meaning of the phrases used in the original record.
“I started working on this bill over four months ago, long before various groups and media outlets started reporting on this particular email,” McBroom said in a press release.
“My intention has always been to solve an apparent problem so that no one in the future will be incentivized to try to hide information in this way while bringing attention and responsibility to this situation if, in fact, it has been done intentionally.”
While McBroom, Sen. Jeremy Moss, Congressman D-Southfield and many other lawmakers consistently advocate for stronger Michigan public transparency laws, bills often fail to make it out of the Legislature.
Whitmer and Democrats said bills to include the governor and lawmakers under the Freedom of Information Act were a priority for the party’s legislative majority. But lawmakers have yet to send any such bills to the governor for his signature.
Michigan and its state government are considered one of the least transparent in the nation. It is one of the only states to have fully exempted the governor’s office from public records disclosure laws.
Whitmer and leaders of the state health and environment departments have repeatedly defended their actions at Benton Harbor. But reports from the Free Press and many other media outlets show regulators have failed to reduce lead levels at Benton Harbor for more than a year, despite test results showing their attempts to reduce the problems n weren’t doing enough.
After significant community resistance in the fall of 2021, Whitmer and lawmakers worked to secure additional funding for new water lines in Benton Harbor. The new funds for Benton Harbor have helped the city replace the pipes much faster than originally planned.
By November 2022, more than 99% of the old service lines had been replaced. In June, the United States Environmental Protection Agency exempted the city from required action under an administrative order, noting that recent water tests show lead levels deemed “acceptable” under federal guidelines.
The state asked a federal court to dismiss Chalos’ lawsuit. The case remains open, as do related state-level lawsuits.
Contact Dave Boucher at dboucher@freepress.com and on X (formerly known as Twitter) at @Dave_Boucher1.
