By Scott McClallen | The Center Square

(The Center Square) – An attorney from Saginaw County filed a lawsuit that claims Gov. Gretchen Whitmer unlawfully issued an executive order that delayed Freedom of Information Act (FOIA) deadlines.

Executive Order 2020-38 eased government response times for mail and fax FOIA requests to within 10 business days of receipt, defined as an employee physically opening a letter or grabbing the fax from the machine.

If COVID-19 interferes with responding to a FOIA request, the order allows FOIA response time to be extended for “as long as the public body deems necessary but no longer than until the expiration of this order or any order that follows from it.”

The order, issued Sunday night, was active immediately through June 4.

Philip L. Ellison, an attorney at Hemlock-based Outside Legal Counsel, sent a lawsuit to the Michigan Court of Claims on Monday.

The suit says that Whitmer’s order isn’t authorized by the FOIA statute or the Michigan Constitution.

“The Freedom of Information Act serves the most important tool for citizens, media, businesses, and others in accessing and securing needed information and documents from state and local governments,” Ellison wrote in the suit.

“Many times, governments will not provide key document(s) unless and until a request is formally made under the Freedom of Information Act.”

Ellison represents Eric Ostergren and Jason Gillman, Jr., two Michiganders who have filed or plan to file FOIA requests.

Ellison told The Center Square that the FOIA statute still stands during a pandemic.

“Right now, when governments are exerting enormous powers and the normal checks and balances have seemingly been suspended, transparency and oversight by the citizenry is at its highest levels right now than even in day-to-day life,” he said.

He said government transparency and oversight are crucial at a time “when governments are asserting the greatest possible powers and influences over our day-to-day lives.”

Ellison said the order permits the governor to extend those FOIA rules far beyond April 30, when the legislature limited her emergency powers.

Whitmer’s office didn’t respond to a request for comment at the time of publishing.

The lawsuit says Whitmer can only issue a “continuity of government in emergencies” because of a disaster caused by an enemy attack on the United States.

“In addition to not being consistent with the Emergency Management Act, it also essentially leaves in limbo this idea of getting access to government records,” Ellison said. “Not just the agencies that are involved with COVID, but every state agency, and every local government as well.”

Ellison said the lawsuit seeks to tell Whitmer that she can’t take over the government and be responsive to no one.

“Yes, this is a serious health crisis. There’s no doubt about it. But crisis is when our principals are supposed to matter most,” Ellison said. “We don’t throw them away when things get tough.”

The suit asks the court to declare the executive order unlawful.

“You simply can’t go forward and act without openness and transparency because right now, a lot of dollars are being spent,” Ellison said. “A lot of things can start happening when no one is watching at the switch. That’s what we hope this lawsuit will fix and put some accountability back into the system.”