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How 'welcome' are those Obamacare investigations? [Editorial]

Both Gov. Martin O'Malley and Lt. Gov. Anthony G. Brown say they welcome the federal review into Maryland's botched health insurance exchange that's coming at the request of Rep. Andy Harris. A spokesman for Mr. Brown's gubernatorial campaign said the feds' involvement will be helpful "so we can learn from these challenges," and Mr. O'Malley issued a statement saying the review was "welcome" but blaming vendors who "failed to deliver the product they promised." If that's so, both of them could speed along the process of lesson-learning (or blame-shifting to the vendors, if that is in fact appropriate) by agreeing to release records they have previously withheld when fulfilling Public Information Act requests.

Though we disagree with Mr. Harris about whether the Affordable Care Act should be repealed, he is unquestionably right that the Department of Health and Human Services should be investigating the expenditure of potentially hundreds of millions of dollars — most of them from the federal government — on a health exchange website that does not work and may well be abandoned altogether after the current open enrollment period ends on March 31. If the HHS inspector general plans to include in the investigation several other states' exchanges that have experienced similar problems, all the better. Federal inspector general reports are generally considered the gold standard in terms of thoroughness, so this effort, combined with investigations already planned by Maryland's non-partisan Office of Legislative Audits, should give Marylanders reasonable assurance that we will get to the bottom of what went wrong and who is to blame.

Eventually, that is. The inspector general's office has told Congressman Harris that it's ready to start its inquiry more or less immediately and could complete it by the end of the year. But that means it probably won't be finished in time for this fall's gubernatorial election, and almost certainly not in time for June's primary elections. State investigators say their major inquiries won't be done until summer of 2015. It will still be valuable to know what went wrong so that the state can avoid such costly failures in the future, but it is unfortunate that we are unlikely to get any meaningful accounting of what role Mr. Brown did or did not play in the debacle in his role as the O'Malley administration's point man for the implementation of health care reform before voters decide whether he should be the Democratic nominee — and, hence, the front-runner — in the governor's race.

There is one, small-scale review going on now by state legislative auditors that is due to be completed by the end of the month. It focuses on progress reports conducted during the run-up to the exchange's Oct. 1 launch by a consulting firm the state hired to oversee the effort and on documents the O'Malley administration has produced in response to Public Information Act requests. But, as one of the auditors involved in the effort has noted, that's likely to leave out pertinent documents.

We know that to be the case because the O'Malley administration withheld an unknown number of documents in response to a Public Information Act request from The Sun for emails among top state officials about the exchange in the period immediately before and after its launch. The governor's office said the emails were exempt from disclosure because they involve the decision-making process of high government officials. Interestingly, the request turned up no emails to or from Mr. Brown. Whether that's because they don't exist or were redacted, we don't know.

Whatever the case, the answer would provide Maryland voters with valuable information as they decide who should be the next governor, and it is within the power of Messrs. O'Malley and Brown to provide it. The executive privilege protection the O'Malley-Brown administration that has been used to justify holding back some documents can be waived by those in a position to invoke it. The argument that such documents need to be withheld to prevent a chilling effect on the advice staffers give to future governors and lieutenant governors falls flat in the context of a debacle that could wind up costing taxpayers more than $260 million, and particularly so since the information will come out eventually via the federal inspector general, state auditors or both. If Messrs. O'Malley and Brown really do welcome the scrutiny they're about to get, they could do Maryland's voters a favor and release all the pertinent documents for public inspection immediately.

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