By Ben Solis and Zach Gorchow
Posted: May 19, 2024 11:44 AM

Newly obtained documents on the Flint water criminal prosecution that the Department of Attorney General originally denied in response to a Freedom of Information Act request, but released on appeal, suggest the department's rationale for the initial denial was thin at best.

The reasons the department cited in the original partial denial of Gongwer News Service's FOIA request were either because the value of protecting the frank communications of public employees outweighed the value of disclosure to the public or because the documents constituted attorney work product. A 1998 Michigan Court of Appeals decision held that prosecutors can exempt anything they deem attorney work product from disclosure under FOIA.

But some of the documents released to Gongwer on appeal contain language that hardly appears frank and documents that would be a stretch to describe as attorney work product, such as a news article published by the publication Vice. Other documents initially redacted but released on appeal did contain notable revelations (See Gongwer Michigan Report, May 3, 2024). Gongwer continues to review other documents it received on appeal as well.

Emails and text message communications were sought from the department related to the now-defunct criminal case that alleged former Governor Rick Snyder, several of his executive office and state agency staffers made decisions that exacerbated the city's water crisis.

Following an appeal, the department also continued to withhold several emails and documents requested by Gongwer, with the attorney general's office continuing to cite the attorney work product exemption in some cases and the frank communications exemption in others.

Gongwer filed a FOIA request seeking to shine light on the decisions that led to criminal charges against several former state officials, including Snyder and former Department Health and Human Services Director Nick Lyon, and drama that unfolded while the team faced setbacks until the prosecution ended in 2023.

Snyder was charged with a misdemeanor. Lyon, former chief medical executive Eden Wells, former Flint emergency managers Gerald Ambrose and Darnell Earley, former Snyder chief of staff Jarrod Agen, former Snyder aide Richard Baird, and DHHS early childhood health section manager Nancy Peeler were each charged with felonies.

That period spanned from January 1, 2019, when the team was preparing to drop charges filed by a special prosecutor appointed by former Attorney General Bill Schuette, to October 1, 2023, when the new Flint prosecutorial team led by former Chief Deputy Attorney General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy ended the case. The Michigan Supreme Court struck down the charges, ruling that the one-person grand jury mechanism to bring them was unconstitutional.

The department initially denied the request in part by withholding some documents and redacting whole emails initially sent to Gongwer (See Gongwer Michigan Report, March 6, 2024). The department later released additional unredacted documents to Gongwer following an appeal.

The content of the newly unredacted emails and documents calls in question whether those documents should have been redacted in the first place under FOIA.

A review of what was sent redacted to Gongwer on March 5 and what was delivered unredacted in April after the appeal show that Hammoud forwarded an email sent by Snyder attorney Brian Lennon where the Warner Norcross + Judd attorney castigates the attorney general's office for producing privileged documents from the civil cases.

The March 5 response blacked out the two sentences from Hammoud. After Gongwer's appeal, those two sentences were revealed. Hammoud says, "Just want to bring this email to everyone's attention. I will work with Pier to set a meeting for us to discuss."

That exchange was redacted under the frank communications exemption.

Worthy sent a proposed press statement on January 1, 2021, to Hammoud and another attorney that appears to be responding to criticism of the investigation. That, too, was redacted under the frank communications exemption.

An email chain where Hammoud tells Worthy about a full Flint water prosecutor team meeting showed Worthy was confused about something and Hammoud told the prosecutor to not worry about it – redacted originally for frank communication between attorneys.

Another email from Holly Gustafson with the attorney general's office was redacted initially. The email was sent to Hammoud with a letter from Baird's attorney. The email body copy simply said that the letter was received on that date. Hammoud forwarded the email to several others with no comment.

In that email, the only thing that was initially redacted and later unredacted was: "This letter was received today: Ltr to Hammoud from Levine re Baird. Original will be sent to Pier via ID mail." This was redacted under the frank communications exemption.

Three emails in a chain had attachments, including a letter from attorney Chip Chamberlain on behalf of Lyon referencing an April 16, 2020, article in Vice slamming Snyder on the Flint water situation. Chamberlain said the article showed significant disclosures of confidential information that likely came from the prosecutorial team. The other attachment was the article itself, which was not produced by the attorneys but was published in a publicly available publication.

All three of those documents, the Hammoud email and the attachments, were initially redacted on March 5 in whole under the attorney work product exemption. The April disclosure following Gongwer's appeal still has two lines blacked out in Hammoud's email exchange.

Lisa McGraw, public affairs manager for the Michigan Press Association, said the lack of disclosure and the back and forth on the redacted portions of the files Gongwer received shows that the department, "in dealing with a problem that became catastrophic partly because a lack of transparency in the first place … should go above and beyond to be open with the public to start building trust again."