AUGUST 13, 2014
Suit Could Force Obama Administration to Explain More Missing Emails
(Washington, DC) – Judicial Watch announced today on August 8, 2014, it filed a Freedom of Information Act (FOIA) lawsuit on behalf of journalist Sharyl Attkisson against the Department of Health and Human Services (HHS) to obtain records regarding the flawed rollout of the Affordable Care Act on Healthcare.gov and other related systems. The FOIA lawsuit was filed in the United States District Court for the District of Columbia (Sharyl Attkisson v. U.S. Department of Human Services (No. 1:14-cv-01348)).
From the moment Health and Human Services falsely denied it was tracking enrollment numbers in the early disastrous days of HealthCare.gov, to HHS keeping secret the details of the security risks it discovered prior to–and after–the website’s launch, to HHS excluding journalists from viewing–but inviting favored private interests to view–the repair operations in progress, I’ve been seeking much of this undeniably public information.
She became a Washington-based correspondent for CBS News in January 1995. Prior to that, she co-anchored CBS News “Up to the Minute.” Before joining CBS, Attkisson was an anchor and correspondent for CNN (1990-1993). From 1996-2001, in addition to her CBS News duties, Attkisson hosted a half-hour weekly medical news magazine on PBS entitled “HealthWeek.”
Judicial Watch filed the lawsuit on behalf of Ms. Attkisson because Centers for Medicare and Medicaid Services (CMS) failed to respond to four FOIA requests sent by Attkisson originally in October 2013 and then again on June 7, 2014, seeking access to:
- All materials, communications, emails and/or documents in which HHS Secretary Kathleen Sebelius and/or CMS Administrator Marilyn Tavenner is copied and/or a party to, which mention and/or refer to, whether directly or indirectly, enrollment figures regarding healthcare.gov, FMM, and/or state exchanges. This request includes, but is not limited to, actual enrollment data; any decision(s) related to whether to not and/or when to make the information public; the decisions(s) and/or discussions about waiting until November of 2013 to make the information public; and talking points or communications regarding public statements and/or preparation for Congressional testimony.
- All communications, whether written or otherwise recorded, including but not limited to: emails, memos, report and phone records that mention, pertain to, or otherwise refer to, whether directly or indirectly, tests and/or assessments of any sort surrounding the Federally Facilitated Marketplace, healthcare.gov, the Data Hub, or any other component related to the Affordable Care Act. This includes, but is not limited to, performance tests, security tests and functionality tests. The scope of this request is limited to the time period from June 1, 2013 to present.
- All communications, whether written or otherwise recorded, including but not limited to: emails, memos, report and phone records that mention, pertain to, or otherwise refer to, whether directly or indirectly, performance tests and or assessments and/or their results conducted regarding healthcare.gov between September 15, 2013 and September 30, 2013. This request includes, but is not limited to, tests in which CMS employees took part as mock users trying out the website prior to its launch.
- All emails, records, documents and other communications, whether written or otherwise recorded, regarding FOI requests made about healthcare.gov, whether by name or implication, in which the following CMS officials are a sender and/or receiver and/or a party to and/or mentioned, whether by name or implication: Janis Nero; Joseph Tripline; Deborah Peters, Vendetta Dutton; and Danean Jones. Please note the records request is specifically for communications dating from May 12, 2014 to present.
Healthcare.gov, the Affordable Health Care Act website launched on October 1, 2013, immediately encountered substantial problems typical of those reported by theChicago Tribune: “Consumers seeking more information on their new options under the Affordable Care Act were met with long delays, error messages and a largely non-working federal insurance exchange and call center Tuesday morning.” The Government Accountability Office, the nonpartisan, investigatory branch of the government, blamed CMS for the disaster, claiming it “undertook the development of Healthcare.gov and its related systems without effective planning or oversight practices, despite facing a number of challenges that increased both the level of risk and the need for effective oversight.”
The Judicial Watch lawsuit on behalf of Attkisson seeks to discover records needed to establish accountability for the disastrous rollout, including the internal decision-making procedures used by top HHS officials. On the day of the Healthcare.gov launch, CMS Administrator, Marilyn Tavenner, responded to questions from the press regarding enrollment numbers by saying, “We have just decided not to release that yet.” The process for making the decision to withhold those numbers is included in Attkisson’s FOIA request and subsequent suit.
Questions about Tavenner’s missing records have increased in recent weeks due to her claims that she had deleted critical emails concerning the Healthcare.gov rollout. In response to a House Oversight Committee subpoena, HHS revealed in a letter to Committee Chairman Darrell Issa last week that a number of Tavenner’s emails related to the rollout of Healthcare.gov were deleted and are “irretrievable.” Accusing the Obama administration of failing to be “forthright,” Issa commented, “[T]he Obama Administration has lost or destroyed emails for more than 20 witnesses, and in each case, the loss wasn’t disclosed to the National Archives or Congress for months or years, in violation of federal law.”
“We are proud to represent Sharyl Attkisson, an independent journalist, who has a demonstrated track-record of refusing to play the Washington media game that ignores or suppresses public corruption stories such as Benghazi and Fast Furious,” said Judicial Watch President Tom Fitton. “As Sharyl Attkisson’s new FOIA lawsuit takes on Obamacare, she highlights how the Obama administration is in yet a new cover-up about how it seriously misled the American people about Healthcare.gov’s failures.”
“For years, I’ve watched Judicial Watch’s dogged tenacity produce success in using FOIA lawsuits to obtain documents from a secretive government, whether under President George W. Bush or President Barack Obama, that often had utter contempt for me on other investigative journalists,” added Ms. Attkisson. Journalists and Americans interested in the truth about Washington under any administration can look to Judicial Watch and its work.”
In May, Judicial Watch released a 106-page document obtained from HHS, revealing that on its first full day of operation, Obamacare’s Healthcare.gov received only one enrollment. The document, obtained in response to a November 25, 2013, FOIA lawsuit against HHS, also revealed that on the second day of Healthcare.gov operation, 48% of registrations failed (Judicial Watch v. U.S. Department of Health and Human Services (No. 1:13-cv-01855)).