“An order restricting the flow of information to a state agency, or curtailing a state agency’s ability to fulfill its statutory mandate, cannot rest on catchy phrases or naked assertions devoid of factual support,” said the Michigan Court of Appeals in Department of Health & Human Services v. Genesee Circuit Judge, No. 334491. In this action for superintending control, the Court of Appeals vacated three protective orders issued by Genesee Circuit Judge Geoffrey Neithercut, which prevented the Michigan Department of Health and Human Services (“DHHS” or “the Department”) from accessing McLaren-Flint Hospital’s medical records.
DHHS, in conjunction with the Genesee County Health Department, conducted an investigation of the county’s increases in legionellosis reported between spring 2014 and fall 2015. As part of its investigation, the Department sought access to, among other items, McLaren-Flint Hospital’s lab reports of positive Legionella tests. In response, the hospital denied the request. The hospital reasoned that because there were various lawsuits arising out of the Flint Water Crisis that named both the hospital and the Department as named parties, the hospital’s cooperation in the Department’s investigation could result in a conflict of interest. After the Assistant Attorney General Darrin Fowler and Genesee County Chief Assistant Prosecuting Attorney Celeste Bell sought reconsideration of McLaren’s position and issued an investigate subpoena to the hospital, the hospital sought judicial assistance.
On June 27, 2016, without the hospital filing a petition or otherwise showing good cause for the issuance of one, the circuit court – in an ex parte proceeding – issued a protective order deeming the sought after medical records as confidential. The court went on in August 2016 in another off-the-record ex parte proceeding to issue a second protective order, deeming the records confidential and also making them off-limits to DHHS. In its second order, the court directed DHHS and the Genesee County Health Department to contact the Center for Disease Control and Prevention (“CDC”) for assistance with its investigation. Finally, the circuit court issued a third order shortly after the second on August 24, 2016, widening the scope of the previous protective order by prohibiting the DHHS from viewing virtually any scientific records related to Legionella.
The day after the third order was issued, the DHHS filed its action for superintending control on separation of powers grounds. The hospital and counsel for the circuit court argued in part that MCR 6.201 – which governs criminal cases – authorized the court to issue the protective orders. The parties asserted that because there were ongoing criminal cases pending against individuals in connection with the Flint Water Crisis, and that some of the individuals were DHHS employees. However, the Court of Appeals wholly rejected this assertion, reasoning that MCR 6.201 did not apply to this civil proceeding. The Court determined that the circuit court lacked any legal authority to issue the protective orders where no motions were filed, no showing of good cause was made, and no record was created. Regarding the scope of the orders, the Court determined that the circuit court abused its discretion by failing to exercise any before issuing broad protective orders. Accordingly, the Court of Appeals vacated each of the three protected orders.
