NR Wins Release of Nev. Obamacare Records

by Jillian Kay Melchior
The Silver State’s division of insurance tried some creative tactics but failed to conceal navigator records

The Nevada Division of Insurance must turn over records regarding Obamacare navigators’ criminal histories, Carson City district judge James E. Wilson Jr. ordered yesterday. Unless the division manages to get a stay, it is required to release the public records next week.

Joined by the Las Vegas Review-Journal, National Review filed the lawsuit in January after the Division of Insurance refused to turn over any responsive records — that is, records relevant to our inquiry — whatsoever, stonewalling the two publications for weeks.

NR filed a records request in Nevada after discovering eleven name-matches between Nevada Obamacare navigators and criminal defendants in the court database. But without more information, it was impossible to verify an identity match.

Navigators have access to confidential information about enrollees, including Social Security numbers, home addresses, and financial information. Health and Human Services secretary Kathleen Sebelius told Congress last year it was “possible” that felons are now working as Obamacare navigators, prompting concerns about consumer privacy and identity theft.

Nevada’s Division of Insurance was uncooperative from the start of this reporter’s inquiries. For example, public information officer Jake Sunderland told me it would be “inappropriate” to identify which statute or policy determines whether the Division of Insurance can approve the application of a navigator with a criminal history. When I pressed him on why it would be “inappropriate,” he hung up on me.

In a sworn statement, Sunderland concedes he hung up on me, though he claims I “became hostile” and “continued to be belligerent.” In fact I was simply firm in requesting an answer from a public information officer whose job is to provide information to the public.

The Nevada Division of Insurance also deployed some odd legal tactics in its attempt to keep these records from the public. In its initial denial letter, it claimed, in what appeared to be a contradiction, that the Division possessed no responsive records whatsoever — and that it also could not disclose the responsive records it possessed.

Further justifying its refusal to release records, the Division cited a clause in the Nevada legal code, NRS 679B.190(7), which states that “the Commissioner may classify as confidential the records of a consumer or information relating to a consumer to protect the health, welfare or safety of the consumer.” However, the records requested were not about consumers but about possibly criminal navigators. The Insurance Division’s initial response also cited a law that was repealed in 1967 — purely a mistake, I was later assured.

Nevertheless, I tried to resolve this out of court, asking the Division of Insurance to give me further clarification after its initial denial. My attempt was met by even more stonewalling. Eventually the two publications sued.

While it’s true that actual Federal Bureau of Investigation background check reports aren’t public, the Division could possess a host of other records indicating whether an Obamacare navigator had a criminal record. But instead of producing these, the Division claimed it was legally prohibited from releasing anything at all.

That simply wasn’t true, and the judge agreed.

“The judge clearly and unequivocally determined that the Division of Insurance had withheld public records that should have been disclosed pursuant to the Nevada Public Records Act,” Don Campbell, the attorney for National Review, said after yesterday’ two-and-a-half-hour hearing. “The judge found there was no legitimate excuse for the withholding of these records. . . . He further stated that, as a result of this stonewalling, he was going to impose attorney’s fees. Otherwise, it would simply provide an incentive to others at the Division of Insurance and those similarly situated at other state agencies to defy the law as it had been defied here and simply cost the requesting party needless time, energy, manpower hours and fees.”

Unless the Division of Insurance is able to get a stay, I’ll have these public records next week. I’m interested in seeing them, and not just because the Division has behaved as if it has something to hide.

Already, similar requests by NR in other states have yielded disturbing information. Last week, NR reported that in California at least 43 convicted criminals were working as Obamacare navigators, including individuals who had committed forgery and welfare fraud. And in New Mexico, one in seven navigators had a hit in the Federal Bureau of Investigation’s criminal database, though that doesn’t necessarily reflect a conviction. As many as 31 states do not require navigators to undergo a background check.

Yesterday’s ruling represents a victory for transparency. It’s also a victory for consumers, who have the right to know their privacy and interests are being protected.

— Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity.