Politically-driven suppression of information about the affairs of government is in the news. Not just because the problem seems to be getting worse but also because the rhetoric about open government and transparency seems ubiquitous.
The heart of the problem is that bad news conflicts with the half-truths of political messaging so its dissemination should be “managed,” particularly during election season. This has a corrosive effect on our system of governance, even while politicians seem to prioritize re-election and party affiliation ahead of the public good.
Using a good law to bad effect
Officials for the Maryland Health Benefit Exchange (exchange) have implemented the Maryland Public Information Act (PIA) in reverse by using the disclosure law as a shield to justify secrecy, contrary to the statutory requirement to do the opposite by exercising a bias “… in favor of permitting inspection of a public record.”
An April report by the Office of Legislative Audits illustrates this adverse posture, when auditors disclaimed any opinion associated with a wide-ranging examination of a four-year collection of documents (numbering some 15,000 pages) released by the exchange under the Public Information Act. The disclaimer was needed because the sum and substance of all documents released to the public since the inception of the exchange were so thoroughly incomplete and heavily redacted that auditors could not perform an audit according to professional standards.
How is the exchange’s historical record of obfuscation possible if the intent of the disclosure law is to release all documents except those few that public policy requires be kept secret?
The exchange’s implementation “in reverse” is due to several factors. Hubris or arrogance is one possibility; misunderstanding or misapplying the law is another. Heavily censored documents routinely arriving after the 30-day limit suggest a powerful political bloc in Maryland is motivated to protect Anthony Brown’s reputation by ensuring all inquiries into the exchange’s problems are delayed until after the election, as The Washington Post reported.
The authors’ own experience with stonewalling by the exchange serves as the strongest and most compelling evidence of these factors.
Request for technical audit documentation
Technical audits called IV&V (or independent verification and validation) are the only contemporaneous and objective assessment of the quality of building any large information system such as the Maryland exchange platform.
These technical audits verify that the system is being built according to state specifications, and validate that the system will function to meet the state’s needs. This work is analogous to the quality assurance function inherent to building any complex system (physical or electronic) in every industry (construction, aerospace, military, energy, information technology, retail, government, etc.)
This quality function is vital to a successful implementation and the documentation created by it is key to full understanding of the granular fact-gathering during the building of the system.
So we requested copies of the quality-assurance documents prepared by two contractors hired by the exchange: Berry Dunn and Angarai International, during the first and second exchange platform builds, respectively. We intended to perform a comprehensive technical review of all documents and publicize the results.
Our conclusions would be uniquely beneficial because the three of us have expertise in three fields: technical audits, financial audits, and open government. A much-needed assessment has never been done; we hoped to fill this gap.
The exchange, in two tersely-worded letters issued more than a month after the statutory deadline, denied that it was responsible for releasing any of the thousands of records we asked for, because those records are protected (from release) by “executive privilege” and “deliberative process privilege.” We immediately asked for clarification but have so far received no response.
Was the person invoking these privileges a higher-up such as Gov. Martin O’Malley or Lt. Gov. Anthony Brown? The denial letters don’t say. But one matter is clear: This individual has damaged the free flow of public information via an improper categorical denial.
Exchange violated the law by claiming records are secret
Public policy dictates that certain records such as documents that disclose precise information about computer security are presumed to be harmful if they become public. However, the preponderance of records we requested does not contain secrets and they don’t qualify for withholding. They would have been released under a proper interpretation of the disclosure law.
The burden of proof associated with denying records lies with the exchange. And the exchange’s terse rationale is deficient because of a constellation of problems:
The majority of documentation requested is purely factual in nature; and an abundance of pertinent case law says the exchange has a duty to disclose it. The theory is that factual information, unlike advice, cannot be deliberated and thus doesn’t qualify for the privilege. There is scant justification for a deliberative process rationale for Berry Dunn’s documents because the website corresponding with this work has been abandoned. What more can be deliberated?
The exchange cannot empirically show there is any adverse effect that may diminish the candor of its private-sector contractors because the documents they prepared were released. For more information, please see this assessment by Gerald Wetlaufer, Professor of Law Emeritus, University of Iowa. The denial letters are defective because (1) documents denied were not identified with particularity; and (2) the letters failed to convey any clear statement supporting the purported need for confidentiality.
One final thought: the government cannot deny records under the privileges claims where there is a reasonable basis for believing the records will uncover misfeasance. The overt negligence associated with the first implementation seems to fit this criterion. The exchange should not be allowed to hide its own culpability behind a claim of executive privilege. Richard Nixon tried that.