During the course of his lifetime, Twin Cities-based peace activist Marv Davidov had been the subject of ongoing scrutiny by the Federal Bureau of Investigation (FBI). Court documents housed at the Minnesota Historical Society (MHS) show that the FBI had surveilled Davidov over the course of multiple years when he was active with the now-defunct disarmament protest group known as the “Honeywell Project.” The agency’s Davidov-focused records initially came to light during a lawsuit brought by the Honeywell Project, and are now part of the vast records collection of the MHS.

After Marv Davidov passed away in early 2012, Public Record Media sought to obtain the FBI’s full collection of records on Davidov, in order to fill out the historical record about the activist’s Honeywell-related activities, as well as Minnesota-based political protest more generally. The FBI responded to our request in September of last year, and stated that the agency held approximately 11,806 pages of responsive records. We subsequently sought electronic copies of all such documents.

On April 5, 2013, Becky Barnson from the FBI’s FOIA office called to ask if PRM would be interested in narrowing the scope of its Davidov FOIA request in order to expedite processing. She noted that the size of PRM’s copy order had placed it in the “large queue” track, and as such it would take a substantial amount of time to complete.

During the course of our conversation, Ms. Barnson noted that the FBI held multiple documents relating to a Minnesota-based lawsuit, and wondered if PRM might wish to disregard such documents, since they would likely be available from the court that handled the case.

I indicated that PRM might be willing to forego copies of the court records, since they were likely duplicates of those currently held by the Minnesota Historical Society. I also asked for more clarity regarding the scope of the court documents before making a decision.

Ms. Barnson and I spoke again on April 11, 2013. Ms. Barnson noted that the court documents held by the agency pertained to a Honeywell Project lawsuit that began in 1977, and that there were 4650 in all. I asked her to exclude such documents from the copy order, since they likely overlapped with the MHS document collection. Ms. Barnson noted that the remaining documents would be provided on CD in a series of fourteen “interim releases,” and that production would take up to a year to complete.

Find PRM’s prior correspondence related to this request here. Find an inventory of the MHS “Honeywell Project” lawsuit records here.

On March 28, 2013, the U.S. Department of Health and Human Services (HHS) released 837 pages of documents in response to a FOIA lawsuit that PRM filed in federal court late last year. The documents relate to the 2011 renewal of Minnesota’s Medicaid waiver, as well as to correspondence between Minnesota State Senator John Marty, and the Centers for Medicare and Medicaid Services (CMS). CMS is the component of HHS that authorizes the release of federal Medicaid funds to state governments. Minnesota receives these funds under the terms of a waiver that allows deviation from the usual federal Medicaid rules. Such waivers are issued for the purpose of encouraging state experimentation with the delivery of public health care.

Previously, HHS had released two other batches of documents as “interim responses” to PRM’s litigation. These batches included documents which indicated that CMS had added additional program reporting requirements during the run-up to the renewal of Minnesota’s Medicaid waiver. The requirements appear to have been added in response to concerns about public health care program management raised by Minnesota State Senators John Marty and Sean Nienow. Other documents from these batches indicated that Minnesota’s former Medicaid director may have asked CMS personnel to “stop meeting” with this same pair of lawmakers – both of whom had been vocal critics of Minnesota’s management of federal Medicaid funds.

PRM is still evaluating the newest group of documents, but our preliminary review shows that CMS was alerted to program irregularities by not only Senators Marty and Nienow, but also by the Greater Minnesota Health Care Coalition (GMHCC), a consumer advocacy group. Several reports produced by the organization were included in the March 28 document cache provided by HHS. GMHCC released a public report detailing similar concerns in August of 2012.

We will post a more extensive summary of documents from the third HHS cache soon.

On March 29, 2013, the Office of Legal Counsel (OLC) responded to our April 23, 2012 FOIA request seeking legal memos regarding the Obama administration’s interpretation of its powers under the 2012 National Defense Authorization Act (NDAA).

Sections of the 2012 NDAA contain military detention provisions that have raised controversy and questions about their scope – including their possible application within the United States.

Public Record Media (PRM)’s April, 2012 FOIA request is the second that we’ve submitted to OLC regarding matters of indefinite military detention within the United States. (NOTE – In the months since we filed our requests, Congress passed the 2013 NDAA, which included language that bears on the detention provisions of the 2012 law.)

Domestic detention request
In January of 2012, PRM filed a FOIA request with OLC seeking legal memos relating to how the Obama administration viewed its domestic detention authorities (including those authorized by Congress, as well the President’s own, plenary powers.) The request also sought memos that examined the ways in which the 2012 NDAA impacted the Posse Comitatus Act – the post-Civil War law that limits the ability of the U.S. military to participate in civilian law enforcement. The date range of the request ran from January 1, 2009, to January 1, 2012.

On February 22, 2012, the OLC responded to this request by acknowledging the existence of 14 responsive documents. OLC denied access to all of them under FOIA Exemption 5, which protects documents that are “deliberative in nature,” or which contain attorney-client correspondence.

While courts have often give agencies wide berth to withhold records under Exemption 5, FOIA case law has also generally held that documents that are “post-decisional” in nature, or that constitute “final determinations of policy” cannot be protected by Exemption 5, and must be disclosed to requesters.

NDAA request
In April of 2013, PRM sent a re-formulated FOIA request to OLC, seeking legal memos regarding domestic detention that were all specifically tied to the 2012 NDAA, and which expressly constituted “final determinations of policy.” The date range of the request was open-ended.

By January of 2013, OLC had not substantively responded to our request, other than to acknowledge receipt of the request itself, and to note its inability to process the request within the 20-day statutory time frame. PRM subsequently filed an administrative appeal with the Department of Justice’s Office of Information Policy (OIP), seeking a response.

On March 29, OLC issued a response to PRM’s reformulated request. The agency’s response indicated that OLC had identified five responsive documents, but that four were being withheld under FOIA Exemption 5, since they were “not appropriate for discretionary release.” OLC also stated that one document was being forwarded to OIP for a “direct response.” OIP is the office where PRM filed its administrative appeal in this matter. As of the date of this writing, the Office of Information Policy has not yet issued a substantive response to that appeal.

Per the terms of PRM’s second FOIA request, it is reasonable to assume that all four of the documents being withheld by OLC are “final determinations” of government policy – documents that are generally difficult to withhold under the fifth exemption to the FOIA. Watch this space for more news on PRM’s follow-up on this matter.

On February 27, Public Record Media (PRM) received a second cache of documents from the U.S. Department of Health and Human Services (HHS) in response to PRM’s ongoing FOIA litigation. The second document cache contains 1171 pages of records. HHS produced an initial cache of 229 documents on January 22.

PRM filed its FOIA request in this matter in February of 2012, after obtaining correspondence regarding Minnesota State Senator John Marty’s concerns about the management of Minnesota’s public health care programs. These programs bundle state and federal funds together, and disseminate them to health care providers through various non-profit managed care organizations (MCOs). Prior to the involvement of the MCOs, such funds were disbursed directly by the state.

In written correspondence with CMS (the component of HHS that is responsible for approving Medicaid funds for state-level health care programs), Senator Marty raised concerns about the possible financial mismanagement of the programs, and a resultant reduction in the quality of care. He also requested that CMS not approve the waiver under which Minnesota receives Medicaid funds, since he believed that such funds were being wasted by the state’s MCOs.

Correspondence regarding State Senator Marty
The most recent HHS document cache contains internal CMS correspondence related to the formulation of the agency’s responses to Senator Marty’s concerns.

One such document is a January 30, 2012 e-mail sent by Jennifer Sheer of CMS to Richard Jensen, director of the Division of State Demonstrations and Waivers (DSDW) within CMS. The e-mail provides a summary of Senator Marty’s correspondence with the agency, and also discusses attempts to get staff from the Minnesota Department of Human Services (DHS) to participate in a teleconference with Senator Marty and other Minnesota stakeholders. DHS disburses federal Medicaid funds to the MCOs that administer Minnesota’s public heath care programs. At the time of Jennifer Sheer’s e-mail, David Godfrey was the Minnesota Medicaid Director at DHS.

Conference calls with Senator Marty; CMS summary of results
In her January 30 e-mail, Ms. Sheer provided details of two conference calls held with Senator Marty’s office and other Minnesota “stakeholders” on July 11 and August 2 of 2011. She noted that in response to concerns raised by the stakeholders, “DSDW added … language addressing the managed care bidding and contracting process” into public program annual reporting requirements.

Ms. Sheer’s e-mail noted that Senator Marty’s office followed up with CMS on September 6, 2011, and continued to express concerns about public program accountability, despite the addition of the new reporting requirements. Ms. Sheer’s e-mail then stated that during the fall of 2011, “DSDW worked with the State to try to arrange another conference call, one that would include … David Godfrey or one of his representatives … after that conversation we learned that he did not want to participate in a conference call and asked that we stop meeting with this group.”

Jennifer Sheer’s e-mail then went on to note that “Barb Jacobs reached out in November 3rd via phone to inquire about the status of a response to Sen. Marty’s 9/6 letter and the stakeholders 8/9 letter; no response was generated, pending further consideration of how best to address the situation given the State’s rejection of a joint call and that DSDW has already discussed the stakeholders areas of concern during the August 2nd call.”

Summary presented to CMS Medicaid director
Later on January 30, 2012, Richard Jensen sent an e-mail summary of the information provided by Jennifer Sheer to CMS Medicaid director Cynthia Mann and other agency staff. Mr. Jensen’s e-mail noted that,

“During the renewal negotiations for MN’s PMAP 1115 Demonstration last spring and summer, CMS received letters from several stakeholders (including Senator Marty’s May 18, 2011 letter) that expressed concerns with the management of Medicaid funds by PMAP + MCOS. These letters also expressed concern regarding quality and access … Internally, we are not aware of any complaints/concerns about access or quality, and in general MN’s MCOs are well regarded.”

Mr. Jensen’s e-mail then went on to discuss the CMS conference calls held with Minnesota stakeholders during the summer of 2011. According to the e-mail,

“We had no information, nor did the stakeholders provide any information, that supported claims they continued to make regarding mismanagement by the MCOs. As communication continued into the fall we tried to facilitate a meeting between David Godfrey and the stakeholders to discuss their concerns, but David did not see a reason for such a discussion and did not understand why we were still speaking to them.”

The e-mail then summarized the next steps taken by CMS, including the agency’s documentation of contacts from the Senator’s office. Mr. Jensen concluded his message by noting that “we do need to follow up with a response.” The following three sentences of PRM’s copy of his e-mail were redacted by HHS, with the exception of the words, “At this point I would not recommend.”

The HHS redaction is labeled as having been made pursuant to FOIA exemption 5, which protects information subject to privilege, including the “deliberative process” privilege. This privilege is intended to protect internal agency deliberations before a determination of policy has been made.

PRM will continue to review the document cache provided by HHS, and will post summaries of pertinent records as our review continues.