Friday, September 27, 2013

Public Records Act Says "Shall Give On Request" NOT "Shall Give When They Get Around To It"

I get press releases every day and I don't usually do anything with them, but this one appears to demonstrate a case of the Alaska Department of Health and Social Services refusing to obey the law on public records. 

According to part of the press release from the Alaska Democratic Party:
"The report, prepared with nearly $80,000 in State funds by the Lewin Group for the Department of Health and Social Services, has been complete since April 12, 2013.  Several individuals and organizations have requested release of the report, including at least one news organization, but the Department has refused to release it.  This refusal violates the Alaska Public Records Act, according to attorneys with the non-partisan Legislative Legal Services Division." 
The Alaska Public Records Act is pretty clear.  Here are the guts:

AS 40.25.110. Public Records Open to Inspection and Copying; Fees.

(a) Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours. The public officer having the custody of public records shall give on request and payment of the fee established under this section or AS 40.25.115 a certified copy of the public record.
Note:  It says:  "shall give on request."   It doesn't say, "shall give when they get around to it"

So, what are the exceptions?  Read through them.  I think you'll agree that none of these apply here.  Then read the bolded section at the end.  It repeats the message above, but instead of staying 'request' it says 'demand.'

AS 40.25.120. Public Records; Exceptions; Certified Copies.

(a) Every person has a right to inspect a public record in the state, including public records in recorders' offices, except
(1) records of vital statistics and adoption proceedings, which shall be treated in the manner required by AS 18.50;
(2) records pertaining to juveniles unless disclosure is authorized by law;
(3) medical and related public health records;
(4) records required to be kept confidential by a federal law or regulation or by state law;
(5) to the extent the records are required to be kept confidential under 20 U.S.C. 1232g and the regulations adopted under 20 U.S.C. 1232g in order to secure or retain federal assistance;
(6) records or information compiled for law enforcement purposes, but only to the extent that the production of the law enforcement records or information
(A) could reasonably be expected to interfere with enforcement proceedings;
(B) would deprive a person of a right to a fair trial or an impartial adjudication;
(C) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim, or witness;
(D) could reasonably be expected to disclose the identity of a confidential source;
(E) would disclose confidential techniques and procedures for law enforcement investigations or prosecutions;
(F) would disclose guidelines for law enforcement investigations or prosecutions if the disclosure could reasonably be expected to risk circumvention of the law; or
(G) could reasonably be expected to endanger the life or physical safety of an individual;
(7) names, addresses, and other information identifying a person as a participant in the Alaska Higher Education Savings Trust under AS 14.40.802 or the advance college tuition savings program under AS 14.40.803 - 14.40.817;
(8) public records containing information that would disclose or might lead to the disclosure of a component in the process used to execute or adopt an electronic signature if the disclosure would or might cause the electronic signature to cease being under the sole control of the person using it;
(9) [See delayed repeal note]. reports submitted under AS 05.25.030 concerning certain collisions, accidents, or other casualties involving boats;
(10) records or information pertaining to a plan, program, or procedures for establishing, maintaining, or restoring security in the state, or to a detailed description or evaluation of systems, facilities, or infrastructure in the state, but only to the extent that the production of the records or information
(A) could reasonably be expected to interfere with the implementation or enforcement of the security plan, program, or procedures;
(B) would disclose confidential guidelines for investigations or enforcement and the disclosure could reasonably be expected to risk circumvention of the law; or
(C) could reasonably be expected to endanger the life or physical safety of an individual or to present a real and substantial risk to the public health and welfare;
(11) the written notification regarding a proposed regulation provided under AS 24.20.105 to the Department of Law and the affected state agency and communications between the Legislative Affairs Agency, the Department of Law, and the affected state agency under AS 24.20.105.
(12) records that are
(A) proprietary, privileged, or a trade secret in accordance with AS 43.90.150 or 43.90.220(e);
(B) applications that are received under AS 43.90 until notice is published under AS 43.90.160 .
(b) Every public officer having the custody of records not included in the exceptions shall permit the inspection, and give on demand and on payment of the fees under AS 40.25.110 - 40.25.115 a certified copy of the record, and the copy shall in all cases be evidence of the original.
(c) Recorders shall permit memoranda, transcripts, and copies of the public records in their offices to be made by photography or otherwise for the purpose of examining titles to real estate described in the public records, making abstracts of title or guaranteeing or insuring the titles of the real estate, or building and maintaining title and abstract plants; and shall furnish proper and reasonable facilities to persons having lawful occasion for access to the public records for those purposes, subject to reasonable rules and regulations, in conformity to the direction of the court, as are necessary for the protection of the records and to prevent interference with the regular discharge of the duties of the recorders and their employees.

Why withhold documents?

Aside from the legally valid reasons, officials withhold information that makes them look bad.  Some examples:
  • It refutes what they have told people.
  • It doesn't support the position they espouse.
  • It confirms what their critics have charged.
  • It reveals incompetence or otherwise is embarrassing

Public records acts, in general, often have provisions that allow an agency to withhold documents while a policy is being formulated.  Section 11 above seems to be for that purpose and the link goes to the kind of information that would be exempted.  It's more about communication between the Department of Law or the Legislative Affairs Agency.

However, this is an independent report that is complete and will not change.  It's been paid for with State money.  The people have a right to see what it says.  If the Governor were really open to the best options for the people of Alaska he would share the report so it could be studied and its strengths understood and its weaknesses found. That's why the Public Records Act was written.  

I can't think of legitimate reasons for withholding such a document this long.  Yes, the agency is still working on its policy but that policy won't change this report.  

My guess is that the report doesn't support what the Governor wants to do.   [This accidentally got left out of the original post:  In 2009 The Washington Post quoted Lewin Group Vice President John Sheils
"Let's just say, sometimes studies come out that don't show exactly what the client wants to see. And in those instances, they have [the] option to bury the study -- to not release it, rather," Sheils said.
Except when they are a government that has public disclosure laws.] 

Who is the Lewin Group?

The Lewin Group, the company that did the report, is based in Falls Church, Virginia.
They tout their integrity and independence,  and they acknowledge they are owned by UnitedHealth Group:
"The value we place on accuracy, independence and objectivity is reflected in the trust our clients place in The Lewin Group. As such, The Lewin Group must safeguard its integrity, and address any appearance of conflicts that may stem from the organization’s relationship to other health care businesses owned by our parent company, OptumInsight, and its parent entity, UnitedHealth Group."
Despite its corporate ownership, opponents of health care reform often cite the Lewin group as an impartial, non-partisan or independent source of information. House Rep. Eric Cantor (Virginia), has referred to it as "the nonpartisan Lewin Group." Republicans on the House Ways and Means Committee have called it an "independent research firm." Senator Orrin Hatch of Utah, the second-ranking Republican on the Senate Finance Committee, referred to the Lewin Group was "well known as one of the most nonpartisan groups in the country." They do not mention, however, that the Lewin Group is owned by UnitedHealth Group.
The Lewin Group has a reputation as the "go to" firm for beleaguered organizations in need of reports and research to support controversial positions and issues. In one example, in 2005 the American Hospital Association hired the Lewin Group to study the causes of skyrocketing health care costs. The study results blamed increased hospital spending on the rising costs of goods, a workforce shortage and greater demand for hospital services, but did not mention health insurance company profits, stock values, shareholder returns, etc. (Aug. 29, 2005, p. 8).[3]
So, the Parnell administration went to a firm that is endorsed by Eric Cantor, a powerful House opponent of Obamacare.  He should expect a report that's favorable to his position and have no problem releasing it.  But they've held it since April.

We can guess that the report would have been released already if it concluded that the Affordable Care Act would be a disaster for Alaska - as the Governor has claimed:  
"The state of Alaska will not pursue unlawful activity to implement a federal health care regime that has been declared unconstitutional by a federal court,” Parnell told the Juneau Chamber of Commerce, to applause, Thursday."
But what if a company endorsed by Cantor said the Affordable Care Act would be ok for Alaska?  The Parnell administration wouldn't be able to blame the company's "liberal bias.' The Lewin Group's website has a summary of a study they did on expanding Medicaid in the State of New Hampshire:

The report they did for the State of New Hampshire concluded that while there would be a modest reduction in state spending over six years if the state did not expand Medicaid, if it did it would be a huge improvement in health care access for people in New Hampshire and it would bring billions in federal revenues to the state. 
"This report provides estimates on Medicaid enrollment and costs under the option of not expanding Medicaid compared to the option of expanding the program under various program design options. We find that if the state does not expand Medicaid, it could reduce state Medicaid spending by $66 to $114 million over the 2014-2020 period. However, expanding Medicaid would (1) reduce the number of uninsured in the state by an additional 22,300 people, (2) provide subsidized coverage for low income adults in the state, who would not have access without the expansion, and (3) increase federal revenues in the state by $1.8 to $2.7 billion over the 2014-2020 period."      
 If that's not clear, it says
  • if you don't expand, you'd save around $100 million BUT
  • lose 20 times that much in Federal revenues and
  •  cut out 22,000 uninsured people. 

Senator Bill Wielechowki's most recent request to see this report was linked in the press release.  It's dated September 25, 2013, but it also refers to previous requests for the report - one in March and one in August.  It also goes into much more legal detail than I have.  You can read it here.

Here's the Department of Health and Social Services response to his August request.

From:  Hooley, Jason M (GOV) []
Sent:  Tuesday, August 20, 2013 3:34 PM
To:  Michelle Sydeman  [Wielekowski's staff]
Subject:  Re: Request for contract re: actuarial analysis of Medicaid expansion
Hi Michelle,
Thank you for your request for a copy of the contract with the firm completing the actuarial analysis of Medicaid expansion costs and effects.  A copy of the contract is attached.
Like many other states, Alaska looks to move cautiously and deliberately towards a decision on this issue. The Department of Health and Social Services (DHSS) has reviewed actuarial analyses of cost estimates and effects that sketch out what Medicaid could look like in expansion scenarios.
The report is not meant to advocate for or against a particular position, rather it will be used as one point of data as we develop our recommendation. DHSS’s actuarial study completed by the Lewin Group on April 12, 2013 entitled “An Analysis of the Impact of Medicaid Expansion in Alaska,”  is not yet available for distribution.
It will be made available once DHSS has completed its analysis and submitted its recommendations to the Governor.
Jason Hooley
Legislative Liaison
Office of the Commissioner
| Department of Health and Socia
l Services
3601 C Street (#902) | Anchorage, AK 99503
(o) 907.269.7806 |
(c) 907.341.7806

What about the language that says "Shall give on request?"  It's been available since April 12.  The key reasons I can imagine that it has not been released is to prevent Sen. Wielechowski from having enough time to review the data.  Or because the report is not favorable to the governor's position.  

If you go to Wielechowski's request, you'll see it spells out the specific legal reasons why the document should be released and shows why it doesn't qualify for any of the exceptions. 

It would appear that the State is illegally withholding information that the people of Alaska bought and paid for. 

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