The Public Eye: State health exchange says some board member emails are private

07/02/2014 12:00 AM

07/07/2014 9:26 PM

California’s health insurance exchange, the agency responsible for administering the federal health care law, does not provide official email addresses to members of its governing board.

So it became an issue last month when a consumer group requested from the exchange a long list of public records, including any communications between agency officials and health insurance companies.

Representatives for Consumer Watchdog were told that because board members do not have email accounts with Covered California, their communications are private.

“We have no legal obligation to search private emails for records that are not within the definition of public records under the California Public Records Act,” senior attorney Andrea Rosen wrote to the group in a June 25 email.

A similar issue is at the center of a high-stakes case out of San Jose that could determine whether government workers must divulge emails, text messages and other private correspondence not stored on city servers or directly accessible concerning the public’s business.

Last week, the California Supreme Court announced it would consider the question as technological advances continue to alter when and where government employees carry out their official duties.

Using personal email to conduct government work has been a tactic relied upon by a variety of officials and their aides – from New Jersey Gov. Chris Christie to former Alaska Gov. Sarah Palin. Last year, The Associated Press reported that President Barack Obama’s political appointees used secret, unpublished email accounts in their official capacity.

In California, the exchange had initially agreed to consider providing board members’ communications with employees who do have public addresses, obtaining them by searching for agency emails ending in covered.ca.gov.

On Tuesday, officials said they would also ask board members to search their private accounts and provide the exchange with the requested work-related emails on a voluntary basis, “given the current legal uncertainty.”

“Please note that in agreeing to produce these records in response to this particular request, Covered California is not waiving its right to protect the individual privacy rights of its employees and officials in response to future requests for access to personal email accounts,” said a written statement released by the exchange on behalf of the board.

The statement said there is no legal requirement to provide official email accounts for board members, nor must board members use a state email account.

“The agency believes it would create an additional burden on board members to maintain separate Covered California email addresses,” the statement said.

The five-member board of the state exchange, appointed by the governor and the state Legislature, serves on a volunteer, part-time basis to set policy for 1.4 million Californians enrolled in health insurance plans. One of its most noteworthy decisions came last year, when members turned down a presidential invitation allowing insurers to grant extensions to more than 1 million customers with terminating policies.

Consumer Watchdog’s request for documents comes ahead of a legislative hearing Wednesday on the group’s fall ballot initiative, which would give health insurance rate-regulation authority to the elected insurance commissioner.

Covered California, board members and an expert paid for by the opponents have raised questions about how Proposition 45 might affect the exchange and its enrollees. Consumer Watchdog and Covered California officials are scheduled to testify at the hearing.

Jamie Court, the president of Consumer Watchdog, said the agency’s failure to issue email addresses to its governing officers meant “that they want to keep their communications from public scrutiny.”

“Covered California enrolled 1.4 million in health insurance,” he said. “Why doesn’t it have the capacity to be able to provide email addresses? It’s because they don’t want those communications public.”

Anne Gonzales, a spokeswoman for the exchange, said the board was issued email addresses early on “but we quickly discovered it was impractical” because board members serve part time, are uncompensated and have additional roles. She noted that some serve on several board and commissions in addition to their jobs as executives of large organizations.

Officials are in the process of complying with an extensive request for other records the consumer group is seeking, she said.

“Assuming any such records exist, we will be producing any hard copies of correspondence received or sent by the board members ...” Gonzales added in a prepared statement Monday. “We will also produce any electronic records held on Covered California’s servers. This will fulfill our obligation to produce all records under our control while respecting the privacy rights of individual board members.”

Kelly Aviles, an attorney for Consumer Watchdog, argued that didn’t go far enough. In a letter to the exchange on Monday, Aviles asked that the request for records be forwarded to the board. She also demanded that the agency instruct each of the five board members to retain all electronically stored information that relates to their work there, and that they attempt to retrieve any related previously deleted items.

“We have serious concerns about Covered California’s position that its board members choose to communicate about official business using their private email accounts, as opposed to conducting business using a Covered California email address, and then refuse to produce those emails,” Aviles wrote. “When dealing with matters of such great public concern, this is unacceptable and antithetical to our democratic society.”

Court said representatives for the exchange cited the San Jose case during negotiations over the records. The 6th District Court of Appeal concluded the state Public Records Act does not compel the city to produce messages stored on personal devices inaccessible to the agency, or to search the devices for messages relating to city business.

“That city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern; but such conduct is for our lawmakers to deter with appropriate legislation,” Associate Justice Franklin D. Elia wrote for the three judges.

The decision in March came after a lower court sided with open-records advocates, who wanted to force disclosure of privately issued messages. Plaintiff Ted Smith’s request included any voicemails, emails or text messages sent or received on private electronic devices used by the mayor or City Council.

Smith contended communication prepared, received, or stored on city officials’ private devices are public records since local agencies “can only act through their officials and employees.” He argued the employees are acting on behalf of the city, and their disclosure obligations are indistinguishable from the city’s.

He further argued that officials lose the expectation of privacy when they communicate about public business from their personal devices and accounts.

The long-debated question, now on hold pending a decision by the state’s high court, could have far-reaching affects on the public and the press, said Peter Scheer of the First Amendment Coalition, which with the California Newspaper Publishers Association is among the groups opposing San Jose in the case.

Scheer said he’s convinced many public officials attempt to skirt disclosure by using their personal email addresses provided by companies like Google and Yahoo. He suggested a new policy stating that whenever board members send an exchange-related email, they copy an agency address so the email could be stored.

San Jose attorneys, joined by the League of California Cities, argued that private communications are excluded from the definition of “public records” under law. They contended the freedom to discuss public issues in private forums allows those who disagree to verbalize unpopular views and formulate “strategies for challenging the status quo or the powers that be.”

They also contended that if local agencies were made to search the personal accounts of their employees, “the burden and cost would be overwhelming.”

Board member Diana Dooley, who is also secretary of the Health and Human Services Agency, said through a spokesman that she uses her state email address for official business she conducts over email in her capacity at Covered California.

“This particular request would be treated like any other request for public records, and if there are responsive non-exempt records, they would be provided,” Scott Murray, the spokesman for Health and Human Services, wrote in an email.

Board member Dr. Robert Ross wrote in an email to The Bee that he was referring questions to exchange spokesman Dana Howard and Executive Director Peter V. Lee.

“It’s a reasonable set of questions you ask,” Ross wrote in response. “I would be interested in learning what other similar, public entity-volunteer member boards and commissions do on this front.”

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