by Max Brantley
Some more public record baseball for you:
I remain interested in how the special Medicaid audit came to pass; how much it was influenced by Republican legislators, and, particularly, what the audit said before the Beebe administration sounded an alarm about methodology. If you followed the story last week, you know a Republicans-only rollout of a report expected to claim tens of millions in wasted money was postponed. Human Services then had input. A revised audit was released Friday that found some shortcomings in the multi-billion-dollar program but didn't give Republicans the knockout soundbite they'd anticipated earlier.
So, I made a little ol' FOI request to DHS and the Division of Legislative Audit for the working papers of this audit, specifically the first audit report that Republicans had so eagerly anticipated, which never saw the light of day. Here's what the law says:
10-4-422. Records — Public inspection.
(a) The Legislative Auditor shall keep, or cause to be kept, a complete, accurate, and adequate set of fiscal transactions of the Division of Legislative Audit.
(b) The Legislative Auditor shall also keep paper, digital, or electronic copies of all audit reports, examinations, investigations, and any other reports or releases issued by the Legislative Auditor.
(c) (1) All working papers, including communications, notes, memoranda, preliminary drafts of audit reports, and other data gathered in the preparation of audit reports by the division are exempt from all provisions of the Freedom of Information Act of 1967, 25-19-101 et seq., and are not to be considered public documents for purposes of inspection or copying under the Freedom of Information Act of 1967, 25-19-101 et seq., or any other law of the State of Arkansas, except as provided in this subsection.
(2) After any audit report has been presented to members of the Legislative Joint Auditing Committee, the audit report and copies of any documents contained in the working papers of the division shall be open to public inspection, except documents specifically exempted from disclosure under the Freedom of Information Act of 1967, 25-19-101 et seq., unsubstantiated allegations obtained in complying with the provisions of the American Institute of Certified Public Accountants' Statement on Auditing Standards Number 99 or other professional guidelines regarding the detection of fraud, and documents which disclose auditing procedures and techniques as defined in subdivision (c)(3) of this section.
* LEGISLATIVE AUDIT: Frank Arey, counsel for Legislative Audit, says the working papers remain closed:
I’ve italicized the key language: work papers are not open to public inspection until “after” the report “has been presented to members of the Legislative Joint Auditing Committee.” Today’s release is an early release, permitted by Ark. Code Ann. § 10-4-417(c), which means the report itself is open to public inspection — but the report is not being presented to the committee. Therefore, the work papers remain closed. To my knowledge, the next regularly scheduled committee meeting is in May.
I'm dubious on all this, legally and spiritually. First, DHS is not covered by the working papers exception because it is not part of Legislative Audit. Anybody who has received papers from Audit at any time in any investigation is free to release them. DHS could release a letter from the governor, for example, even though he might refuse to release such a letter himself on the ground it was one of his working papers.
Has the report been "presented" to members of the Auditing Committee? Frank Arey says no. But Republican Co-Chair Kim Hammer indicates otherwise. Check his webpage. His intro, before reproduction of the entire report:
Legislative Joint Auditing Committee Approves Special Report on Medicaid
I was recently selected as the House chair of the Legislative Joint Auditing Committee. Among the challenging issues under discussion this year is Medicaid funding. In response to a legislative request, The Legislative Joint Auditing Committee has approved the following report to provide information about the Medicaid Program.
So, Kim Hammer says Joint Audit has "approved" a report that Frank Arey says has not been "presented" to the committee. Neat trick. Frank Arey, good Republican that he is, won't release this record absent a court ruling. DHS is under no legal restriction on releasing its documents, but is resisting because it fought hard for the compromise that approved a modified report. Or that's my takeaway of their resistance to open records.
I say give Republicans what they wanted, release of that original report.
UPDATE: The rats are scurrying. Kim Hammer has taken down the webpage from which I quoted. After he'd proudly Twittered it. Also, note this part of the law cited by Arey for non-release:
All final reports shall be open to public inspection after presentation to the Legislative Joint Auditing Committee or after being approved for early release by the cochairs of the Legislative Joint Auditing Committee.
An early release makes something "non-final"? Creative lawyering from Mr. Arey, that's for sure. What is it the Republicans are trying to hide?