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Lead-paint email discusses potential 'big embarrassment' to Gansler

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It was late one afternoon when the email went out, warning of "hot front page news" that could be a "big embarrassment" to Attorney General Douglas F. Gansler.

The message came from an assistant attorney general, writing to alert her supervisor that a Baltimore lawyer was angry at the state health department lab for destroying blood test records of children with lead poisoning. This private attorney wasn't just any lawyer, her email said, but "a great supporter of the AG's governor aspirations" and "a good buddy" of Gansler's, who is widely viewed as harboring higher political ambitions.

The lawyer also told the government attorney to tell the state's lab director to stop destroying records, according to the email. And so she did, leaving a voice message that conveyed the private lawyer's "instructions," the email said.

Attorneys for the state never intended for the email to be made public. Details of it were contained in a report from the health department's inspector general about the lab's destruction of records, but were blacked out by government lawyers before the document was released. The redacted language was easily restored by The Baltimore Sun, by copying and pasting the document into a new file.

But with the details recovered, a report that shows how a state lab was inappropriately shredding records also reveals how a government attorney who helped stop the shredding was influenced, at least initially, by someone she believed had political connections to her boss.

Gansler said he does not know the attorney described as a political supporter, nor the attorney on his staff who sent the email. He and senior members of his staff responded angrily to questions from The Baltimore Sun about the episode, calling it confidential communication among attorneys.

And the report makes clear that the end result of the interaction between the two lawyers — putting a stop to the shredding — was an appropriate and just outcome.

But advocates of open government said the decision to black out the details also highlights the government's power to determine what the public knows about official actions.

"People need to have faith the government is doing the people's business and that it's not being done at the behest of special political interests," said Susan Wichmann, executive director of Common Cause Maryland. "It raises questions in people's minds when they hear things like this."

The inspector general's report found that top lab officials wrongly orchestrated the widespread destruction of records even as they knew the documents were being sought by the children's attorneys through court subpoenas or public information requests.

The March 2 email mentioned in the report was sent by Assistant Attorney General Jenny Bowlus, describing her conversation with lawyer Evan K. Thalenberg, who represents clients in lead-poisoning lawsuits against landlords.

Bowlus did not return a phone call from The Sun seeking comment.

The report's author, Inspector General Thomas V. Russell, said he documented the interaction because he considered it pertinent to his investigation of the state laboratory.

"That guy called Jenny up and was trying to pressure her. That's what I thought," Russell said in an interview.

Gansler and his chief deputy say Bowlus was not doing the bidding of a private lawyer when she called the lab's director, Dr. John DeBoy, but at most was "inartful" in choosing her words in the voice mail. Gansler said Bowlus acted properly when she took steps to preserve the records after learning from Thalenberg that some were subject to subpoenas.

In an interview, Gansler, a Democrat who ran unopposed last year for a second four-year term, called his office "the most depoliticized attorney general's office in the country."

Asked about Thalenberg and his purported support for the attorney general's supposed gubernatorial aspirations, he replied, "Who's Evan Thalenberg? He's the lawyer for the plaintiffs?" Pressed, Gansler said, "I've probably met him, I'm sure, on occasions. Someone told me he sent me a $100 contribution at some point." But he said they are not friends.

Chief Deputy Attorney General Katherine Winfree said in a separate interview that Thalenberg played up nonexistent ties while talking to the junior state lawyer. Winfree called him "a blowhard who didn't have any actual influence, who didn't get anything accomplished by throwing his alleged, bogus weight around."

Thalenberg did not respond to several phone messages and a letter faxed to his Baltimore law office. Campaign finance records show that his only donation to Gansler's campaign was $100 in 2008. His firm's website says he has "obtained scores of multimillion-dollar judgments and settlements for children with lead paint poisoning."

Thalenberg is listed as one of 46 members of the Attorney General's Environmental Advisory Council, according to a state website that says the attorney general appoints members. Gansler's office says the council "simply brings together people about twice a year with a shared interest in environmental legal issues."

Thalenberg did not attend either of the two meetings held since he was listed as a member, said Steve Ruckman, a spokesman for Gansler's office.

Gansler said he had been unfamiliar with Bowlus, one of dozens of state lawyers assigned to the health department. He says he never spoke to her or anyone else there about Thalenberg and that people routinely claim to have connections to him.

"What does happen each and every day," the attorney general said, "is somebody calls one of our lawyers or calls our office and says, 'I'm a good friend of Doug Gansler's.'" He said it does not influence state lawyers: "Their job is to adjudicate the facts of each case based on the facts of the particular case and the law that applies to the case."

In the version of the inspector general's report sent to the news media Friday, excerpts of Bowlus' email were blacked out. So were details about the voice mail she left DeBoy.

Those passages and a handful of others were redacted because they were deemed "attorney work product" under the Maryland Public Information Act, said Wendy Kronmiller, chief of staff to Dr. Joshua M. Sharfstein, secretary of the state Department of Health and Human Services.

But Charles D. Tobin, a Washington-based media lawyer at Holland & Knight who has previously represented The Sun, questioned hiding the information. "When it comes to government lawyers and public records law, the work product exemption should be construed narrowly," he said in an email. "It should only protect their thoughts on legal strategy, not politics."

Before a reporter contacted state health officials Monday to ask about the passages they'd sought to hide, the department sent a new "final" version that made it impossible to see the blacked-out text.

Kronmiller said Monday it was an error to issue the report with the redactions accessible. The decision of what to shroud was "a collective effort" by the health department and the attorney general's office, she said.

In a number of cases cited in the report, communications involving lawyers were not blacked out because confidentiality had been waived, she said. She could not say why no waiver was given for the Bowlus-Thalenberg exchange.

At 3:14 p.m. March 2, Bowlus emailed her supervisor and fellow government lawyer Kathleen Ellis. The subject line read, "Just keeping you in the loop."

Bowlus wrote that Thalenberg "told me to tell" the lab's director "not to destroy any more records … as the destruction of records under subpoena is very, very bad, will result in great penalties, including great attorney fees, will be a big embarrassment to the AG, and will be hot front page news."

Thalenberg asked Bowlus to get back to him after she'd talked to the lab chief, the report said, and Bowlus left DeBoy a voicemail with "the instructions from Mr. Thalenberg." Less than two hours later, the lab's deputy director ordered no further shredding "until further notice."

The widespread shredding and electronic erasures at the state lab, which began early this year, were halted that day. The lasting damage appears to be minimal, according to state officials, because computer technicians managed to recover key information in electronic files that had been deleted.

Doctors and health clinics in Maryland have been required since the 1980s to provide the state health department with results of tests showing that children had elevated levels of lead in their blood. The department has maintained the test results for years and provided them on request to individuals who had been tested, their parents or their lawyers.

Lead is a potent neurotoxin that can cause lasting learning and behavioral problems even in small doses.

Russell's report faulted DeBoy and Deputy Director Michael Wajda for orchestrating the disposal, given that many of the records were being sought through subpoenas or public information requests.

Both lab officials deny having knowingly destroyed records that were subject to outstanding requests. They were placed on administrative leave in March and are now retired. Russell has referred the case to the criminal division of the attorney general's office as required by a standing executive order.

scott.calvert@baltsun.com

Copyright © 2014, The Baltimore Sun
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