Attorney General Douglas F. Gansler, in his capacity as a Democratic candidate for governor, is criticizing fellow candidate Lt. Gov. Anthony G. Brown for refusing to disclose emails and other documents related to his involvement with Maryland's botched rollout of its health insurance exchange website. Mr. Brown is striking back, noting that Mr. Gansler's office provides advice about what records are subject to executive privilege.
If we might cut through this little Gordian knot of political intrigue, it is rich that Mr. Gansler would be the one to raise such a criticism, but it is also irrelevant. If Mr. Brown wants to release the emails he sent or received — assuming they exist — it is entirely within his power to do so, no matter what advice someone from Mr. Gansler's office may have given. (Mr. Gansler's office says it gave advice only related to two specific documents.) The O'Malley administration has cited executive privilege as its reason for not disclosing emails to and from Mr. Brown and other top administration officials. But executive privilege (like attorney-client privilege) can be waived by the person empowered to invoke it. The most an assistant attorney general could do would be to advise Mr. Brown that a particular document is eligible for exemption from disclosure under the doctrine of executive privilege; it's up to him to decide whether to exercise it.
Maryland's public information law includes exemptions for communications of a deliberative nature on the grounds that disclosure could prevent top government officials from getting the kind of candid advice they need to make decisions. But that interest needs to be weighed against the public's interest in knowing what government officials are doing so that we can properly evaluate the effectiveness of their actions. We argue that in a situation such as this one — in which the state is scrambling to fix a $100 million-plus boondoggle that may prevent thousands of Marylanders from getting health insurance on Jan. 1 — the latter interest trumps the former.
Mr. Brown accuses Mr. Gansler of having a conflict of interest in demanding the disclosure of documents, since his agency generally provides the advice about what documents may be withheld. But Mr. Brown's conflict of interest is the more consequential. Which is more important to him, ensuring Marylanders' opportunity to determine who is responsible for the health insurance exchange debacle or avoiding the possibility that he will be embarrassed by what they find?
The failure of Maryland's Obamacare website, particularly in comparison with other exchanges that struggled at first, puts Mr. Brown in an impossible position. Was he really in charge of Maryland's implementation of the Affordable Care Act, as he asserted when trying to prove that being lieutenant governor for two terms provided him real responsibilities? Or was he just a figurehead who was uninvolved and unaware? Neither option is good. Was he was incapable of managing the project, or was he puffing up his resume to serve his political ambitions?
Mr. Brown, who for a time was ducking questions about the health exchange, sought to thread that needle, saying he had been focused on legislative and policy issues related to the exchange, not its day-to-day operations. "I certainly had the responsibility to ensure that if there were problems that required additional resources — changes in legislation or policies — that my responsibility was to make sure the exchange got what it needed," he told The Sun on Friday. If he expects Maryland voters to see him as ready to be governor, he's going to need to do better than that.
The lieutenant governor took the podium Tuesday to provide updates on the effort to fix the system and to announce a slew of changes to the exchange's management. But the performance was not reassuring, as the main message was to cast doubt on whether the state could meet the mid-December deadline Gov. Martin O'Malley set for major repairs to the system, a deadline that was too late to begin with.
Mr. Brown, now experiencing the first real bumps in his campaign for governor, needs to recognize that the situation could get worse. Whatever legal advice Mr. Gansler's office gave in its official capacity about exempting records from disclosure, Mr. Brown needs to recognize that the attorney general's campaign trail advice is sound as a matter of public relations. He needs to release all of his emails related to the exchange and to urge Governor O'Malley to make those under his control available as well. That's the only way he — and, more importantly, the state — are going to get past this.
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