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Archive for the ‘FOIA’ Category

We’re still waiting for the administration’s cost records

Posted by David Kassel on February 17, 2011

(Cross-posted from the COFAR blog and Blue Mass Group

Almost two and a half months ago, we asked for public documents from the Patrick administration to support its claim that the state will save money in closing four developmental centers in Massachusetts for persons with intellectual disabilities.  Our request was made on behalf of the Massachusetts Coalition of Families and Advocates, Inc. (COFAR).

We’re still waiting for the documents.

Our December 3 request was for specific documents backing up a cost analysis submitted by the administration to the state Legislature last summer.  The cost analysis claims that the closures of the four developmental centers — Fernald, Templeton, Glavin, and Monson — will save the state $40 million a year.

Lest you think our request was overly broad, we offered last month to narrow it to a request for documents primarily supporting a specific projection in the administration’s analysis that it would cost $150,000 per person to place residents in new community-based homes.  That figure compares with $172,900 per resident that the analysis contends is the average cost of operating three of the developmental centers targeted for closure.  The difference of $22,900 is part of the savings claimed by the administration in closing the centers.

So far, we’ve received no documents.  In fact, the last I heard from the administration on this matter was a December 21 letter from the general counsel of the Department of Developmental Services, stating that the agency would have to search for the records we were requesting and that the cost of the search was likely to exceed $100.  The letter stated that the general counsel would contact me as soon as she determined the precise cost of searching for and copying the documents.

It’s interesting that DDS would  have to search at all for documents used to back up a major cost analysis that was submitted to the Legislature only last summer.  One would think DDS officials would know where these records are.

One would also think that by now, the general counsel would have at least determined the actual cost of such a search.  After all, the state’s Public Records Law [M.G.L. Chap. 66, Section 10 (b)] states that custodians of public records must comply with public records requests within 10 days.  The regulations accompanying the law [950 CMR 32.05(2)] further state that requested public records should be provided “without unreasonable delay.”  Nearly two and a half months since we first submitted our Public Records request, we haven’t even been told what the cost of searching for those records might be.

On Feb. 4, not believing that DDS was in compliance with either the letter or spirit of the Public Records law or regulations, I contacted the state Supervisor of Records, who can ultimately refer these matters to the attorney general or a district attorney.  As of Feb. 11, a staff person in the Supervisor’s office told me that DDS had not responded to a fax she had sent to them, asking about our records request, and that she was going to send them a letter. 

We asked for these documents for a number of reasons.

First of all, we believe the administration’s methodology in comparing developmental and community-based costs is flawed.  The cost analysis appears to be based on a comparison of the average cost per resident of community-based care and the average cost of care in the Tempton, Monson, and Glavin centers.  The problem is that the residents of the developmental centers are older and  have higher levels of intellectual disability and greater medical needs than the average community-based resident.  The average age of residents in those three facilities is 57.5, according to the cost analysis itself.  In other words, the administration appears to be making an apples-to-oranges comparison.

Secondly, we believe that the $150,000 community-based cost figure projected in the administration’s analysis may not include at least some charges that have been shifted to the state’s Medicaid budget.  Day Habilitation services, for instance, which are a key element of the care of persons who have been transferred from the developmental centers to the community system, are paid from Medicaid.  Similar services, which are provided in the developmental centers, come from the DDS budget.  The administration appears to be comparing costs only within the DDS budget of developmental centers and community-based care.

We don’t feel as though we’re grasping at straws here in trying to demonstrate that the cost of community-based care is not necessarily less expensive than developmental-center care for comparable residents.  As we’ve previously reported, the State of Connecticut has projected that closing that state’s remaining developmental center would result in higher costs, not savings.

After we sent out a press release late last year expressing our concern about the apples-to-oranges comparison of costs, a spokesperson for the administration claimed to The Springfield Republican that the administration’s projections “have been accurate so far.”   If that’s the case, then the administration should be eager to provide the documents we’ve requested, which would show what those projections are based on.  The administration, however, seems to have shown a notable lack of eagerness to provide those documents


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The outcome of our public records saga

Posted by David Kassel on November 12, 2009

[Cross-posted from Blue Mass Group.  Disclosure:  Written on behalf of The Fernald League for the Retarded, Inc.

The Massachusetts Public Records Division in the office of Secretary of the Commonwealth Bill Galvin has denied our appeal seeking records on the administration’s plans to renovate the Wrentham Developmental Center.

Let me explain why we think this denial is both a very poor decision by Galvin’s office and an indication that the Patrick administration’s efforts to close the Fernald Developmental Center may well be in disarray.

The Fernald Center is the nation’s oldest state-run facility for persons with mental retardation.  I’ve been helping the Fernald League, a family-supported, nonprofit organization, in its battle to prevent the  administration from closing the Center, sending most of its residents to Wrentham, at least temporarily, and ultimately privatizing its services.   The League contends that the administration has not taken a number of costs, such as the Wrentham renovations, into account in concluding the state will save money in closing Fernald.

In a letter to me dated November 3, Public Records Supervisor Alan Cote said the Division of Capital Asset Management (DCAM) can withhold the Wrentham records because they relate to a “policy decision” that has still not been finalized.

NOT BEEN FINALIZED?  I thought the Patrick administration had finalized its policy of closing Fernald and transferring most of its residents to the Wrentham facility.  That, in fact, was what Nick D’Alusio, the director at Wrentham, thought as well, when I called him on November 6.

D’Alusio told me that his understanding was that DCAM and the Department of Developmental Services were both on track to renovate two buildings at Wrentham and have them ready to accept as many as 60 Fernald residents by May.  But he acknowleged that the project still hasn’t gone out to bid.  The design is complete, he said.  But the bids were supposed to be solicited in September.  The cost of the renovations is reportedly $1.6 million.

As I noted in a previous post, I had filed a request with DCAM on July 9, seeking the feasibility study and a documented cost estimate for the Wrentham renovations.  Under the state’s public building construction bidding statutes and policies, those feasibility documents should be completed and approved before the design is done.

But after first writing to tell me I should make an appointment to come in and review the records, Peter Wilson, DCAM deputy general counsel, wrote to me on August 21, denying my request.  Wilson’s denial letter cited an exemption to the Public Records law relating to those ongoing policy deliberations.

The exemption, however, says that it does not apply to “resonably completed factual studies or reports.”  The same day I received Wilson’s denial letter, I also received a letter from DDS Commissioner Elin Howe, stating that bidding on the Wrentham project was scheduled for September, with a contract award scheduled for October.  If that was the case, any feasibility study on the project would have had to be completed by the time Wilson was denying my request.

The Public Records Divsion took more than two months to decide my appeal.  Yet, their attorney never talked to me about the case, never asked for Elin Howe’s letter, which I had offered to provide him, and never called D’Alusio or apparently anyone else to verify DCAM’s exemption claim.  The Public Records attorney also apparently never asked DCAM for a copy of the feasibility study for the renovations to decide for himself whether it was reasonably complete. 

In his letter to me on Tuesday, Public Records Supervisor Cote stated that Wilson had stated in an October 30 email to his office that there were “ongoing discussions…as to whether ‘the building [slated for renovations at Wrentham] can be used’ for the contemplated purpose.”

“That’s totally new to me,” D’Alusio said, when I read him the passage above from Cote’s letter.  “I have no information that there are still discussions over the use of the buildings.”

So, here we are.  It’s already November, with seven months to go until DDS’s announced June deadline of closing Fernald, and six months to go until its announced deadline for having Wrentham ready to receive some 60 Fernald residents.  A design for the renovations is complete; yet, DDS and DCAM have apparently not even decided that the buildings in question at Wrentham can even be used for “the contemplated purpose.”

Meanwhile, DDS is laying off staff at Fernald and letting conditions deteriorate there — a situation which is putting pressure on remaining family members and guardians of the residents to get them out quickly.  No wonder those folks aren’t getting much sleep at night these days.

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The saga of a public records request

Posted by David Kassel on October 21, 2009

[Note: Cross-posted from Blue Mass Group.  Disclosure:  Written on behalf of The Fernald League for the Retarded, Inc.]

More than three months ago, I requested documents from the state of Massachusetts on the projected cost of renovating the state-run Wrentham Developmental Center to accomodate residents of the Fernald Center, which is slated to close in June. My request was made on July 9. 

The Fernald Center is the nation’s oldest state-run facility for persons with mental retardation.  I’ve been helping the Fernald League, a family-supported, nonprofit organization, in its battle to prevent the Patrick administration from closing the Center and privatizing its services.   The League contends that the administration has not taken a number of costs, such as the Wrentham renovations, into account in concluding the state will save money in closing Fernald.

From what I understand, there are only two documents involved in my records request: a feasibility study and a documented cost estimate for the renovations.  The state Division of Capital Asset Management (DCAM) was reportedly scheduled to award a contract to undertake the renovations this month.

At first, it looked as though I was going to get the records I’d requested.  Although it was long past the required 10-day response period, Peter Wilson, Deputy General Counsel at DCAM, wrote me on July 21, saying I should make an appointment to come in to review the records.  I contacted Wilson’s assistant, who told me she was attempting to track the records down.

Weeks went by, and I checked in periodically. Then, on August 21, I received a one-paragraph letter from Wilson, this time denying my request.  In his letter, Wilson stated that the requested records were exempt from disclosure because they “relate to policy positions being developed” by the state.  Wilson’s letter added:

The purpose of this exemption is to allow government offices to deliberate and form policy by engaging in free and frank exchange of options and ideas, which would be inhibited by public scrutiny.  [emphasis added]

Does the Massachusetts Public Records Law really have an exemption that talks about promoting the “free and frank exchange of options and ideas” and preventing that from being “inhibited by public scrutiny?” 

I didn’t think so.  Here’s the exemption in question.  It states only that exempt documents include “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.”  The exemption says nothing about feasibility sudies or estimates of the cost of state construction or renovation projects.  It seemed to me that a  feasibility study and cost estimate for a specific construction project does not involve the development of policy.

Moreover, the law states that this exemption shall not apply to “reasonably completed factual studies or reports.”  In late August, I received a letter from Department of Developmental Services Commissioner Elin Howe, stating that bidding on the Wrentham project was scheduled for September, with a contract award scheduled for this month.  If that was the case, any feasibility study on the project would have had to be completed by the time Wilson was denying my request.

My appeal to the state Public Records Division has been pending since August 27.  This would seem to be an open-and-shut case.  Yet, it took me weeks to get through to the Public Records attorney who has been handling it.  Yesterday, he apologized for the delay.  But one has to wonder, what the hangup is here.  The attorney, by the way, has not requested Elin Howe’s letter to me.

I’m not optimistic about ever getting these records, given the findings of a CommonWealth magazine article last year about the routine flouting of the Public Records law by agencies throughout state government.

The Wrentham records are one of two public records requests that DCAM has denied the Fernald League.  I’ll write about the saga of our second request in a future post.

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One group’s attempt to quantify Bush’s impact on government

Posted by David Kassel on July 18, 2007

George W. Bush is widely known to be concerned about his legacy, and he may indeed be doing all he can to cement a future historical judgment of him.  Only it looks as though it may just turn out to be as one of the worst presidents in U.S. history.

It may not even be Iraq that ultimately brings that judgment down upon him.  It may be the concerted effort he (or Dick Cheney) appears to have made to dismantle our constitutional system of democratic checks and balances and to turn the country in the direction of a police state.

Can we quantify the constitutional damage Bush and Cheney have done?  One recent attempt to do so is contained in a new report  issued by the nonprofit  and the People for the American Way Foundation.

If anyone in the House of Reps is looking to compile a Bill of Particulars against the Bush administration for its assorted high crimes and misdemeanors, they might well begin with this report, which is a compendium of the myriad actions the administration has taken in the wake of 9/11 not only to make government more secretive, but to deceive Congress and the public on issues ranging from Iraq to Medicare to the environment.

Quite a bit of what  the Bushies have done (that we know of) to thwart the Constitution and our democratic process is at least mentioned here.  The report lays it out in a dispassionate yet easily understandable manner that only now and then conveys the chilling nature of those actions, such as the White House instructions to the EPA after 9/11 to tell the public that the air around Ground Zero was “safe,” even though the EPA had not conducted full testing. Now we know of course that the air wasn’t safe and that scores of police and firefighters later died of cancer resulting from toxins in the air.

The report focuses on the concerted effort by the Bush administration since 9/11 to make government operate under a thicker and thicker cloak of secrecy, and suggests that things have indeed gotten worse than they’ve ever been before.  Among the topics covered are the administration’s efforts to weaken the 40-year-old Freedom of Information Act, its consistent use of executive privilege, its growing practice of classifying public records, its use of “covert propaganda” in both the foreign and domestic media, its secret court proceedings that include detentions of people on immigration-related and terrorism charges, and its increasing efforts to gag and punish whistleblowers and investigate leaks of secret and potentially illegal activities.

As the report’s Foreword states:

Most Americans recognize the need to safeguard national security information from improper public disclosures that would damage the national interest. But national security has become a blanket excuse to withhold information from the public as well as from Congress, especially in the aftermath of the 9/11 terrorist attacks.

Interestingly, in what might not even have been a conscious intention of the author, the report highlights the general ineffectiveness of Congress thus far in thwarting these attacks on the Constitution.  In case after case, the report mentions legislation that has been proposed to rectify the damage in specific areas, and notes that the legislation has yet to be enacted.

Take the FOIA, for instance.  The report states that “the chilling of FOIA in the Bush Administration began nearly from its outset.” In October 2001, then Attorney General John Ashcroft issued a memo on FOIA that substantially undermined the law’s presumption of openness. The memo encouraged agencies to limit disclosure of information and ordered them to “carefully consider” such interests as national security, business information, and personal privacy before allowing the release of any information.

In the meantime, backlogs in responding to FOIA requests have been increasing.  In some cases, requestors can wait years for the information that they requested.  So, what has been done about this?  The report states that In March 2007, the House passed the “Freedom of Information Act Amendments of 2007” (H.R. 1309), while the “Open Government Act” (S. 849) was awaiting floor time in the Senate for debate and a vote.

The, by the way, reported early this month that S. 849 was being held up by Republican Senator Jon Kyl of Arizona on behalf of current Attorney General Alberto Gonzales.  According to WatchdogBlog, the bill would:

  • Restore meaningful deadlines for agency action under FOIA;
  • Impose real consequences on federal agencies for missing statutory deadlines;
  • Clarify that FOIA applies to agency records held by outside private contractors;
  • Establish a FOIA hotline service for all federal agencies; and
  • Create a FOIA Ombudsman as an alternative to litigation.

Regarding classifications of documents, the report notes that on an average day of the year, nearly 40,000 items, such as documents, files, or videos, are classified by government officials and private contractors.  This number has been increasing for the last ten years and has substantially increased in the last six years.  In 2003, President Bush issued an executive order which “significantly changed the presumptions about classification. It removed the requirement that, if there were a significant doubt about classification, it should not be classified,” the report notes.

The report also describes the practice by the administration of “selective declassification (of records) for political means,” such as the decision by President Bush to secretly declassify sections of a National Intelligence Estimate that supported claims of weapons of mass destruction in Iraq. These were leaked to reporters by the Office of the Vice-President, the report points out.

And there is the increasing use of the claim that information is privileged as involving state secrets or that information is “sensitive.”  Some of the recent uses of sensitive information that the report cites include:

  • The DC government was not allowed to see information on trains that are allowed to travel through the District carrying hazardous cargoes.
  • The Nuclear Regulatory Commission attempted to suppress a report by the National Academy of Sciences that it did not agree with.
  • The Federal Energy Regulatory Commission  refused to share information about the safety of a proposed Liquid Natural Gas plan with the Connecticut Attorney General because it was Sensitive Energy Information.
  • The Department of Homeland Security refused to name the new DHS ombudsman.

Then there’s executive privilege.  The report notes that starting in 2001, the administration began using expansive claims of executive privilege to resist Congressional inquiries into a variety of areas.  It cites numerous cases in which executive privilege has been cited, including the Boston FBI’s misconduct in the 1960s that resulted in an innocent man being imprisoned for 30 years, Justice Department memos on campaign finance prosecutions, copies of the President’s Daily Brief relating to perceived terror threats prior to 9/11, the activities of then White House Counsel Alberto Gonzales when he was nominated for Attorney General, Supreme Court nominee John Roberts’ activities in the Justice Department, and public access to the historical records of past presidents.

The WH is of course claiming executive privilege in withholding information from Congress on its warrantless wiretapping surveillance program. 

The report also presents dozens of examples of orders and attempts by the administration to gag public officials, particularly scientists, such as this gem about the U.S. Geological Survey, which required scientists to obtain “pre-approval” of all presentations, reports or other public releases of any material that has “findings or data that may be especially newsworthy, have an impact on government policy, or contradict previous public understanding.”  One can be pretty sure where the Bush administration would have come down in the 17th Century controversy over Galileo’s claim that the earth revolves around the sun.

The report further details the ineffectiveness of the Office of Special Counsel in protecting whistleblowers in the administration and notes that threats have increased against whistleblowers who reveal information on mismanagement of agencies such as the NSA and FBI and abuses by military contractors. The report adds that the House passed the “Whistleblower Protection Enhancement Act of 2007 (H.R. 985) and that the bill was referred to the Senate (S. 274) where it was awaiting a floor vote.

Read it, it’s worth it.

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