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Nonprofit Fights to Expose Affordable Care Act Records

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Ever wonder what was behind the Trump administration’s decision to pull back advertising promotion of in the waning days of open enrollment? How about what U.S. Department of Health and Human Services officials were really saying about the Affordable Care Act during those frantic days leading to the failed efforts to change the ACA earlier this year?

Related: Chaffetz Accuses HHS of Resisting CO-OP Document Subpoena)

If so, a handful of Washington lawyers may soon have the answers to your questions. A nonprofit group of five former government attorneys — most of whom also have Big Law experience — that launched last month will use the federal Freedom of Information Act to unearth emails and other documents that would, as the organization’s leader put it, “line up what [HHS and other regulators] are saying privately with what they are saying publicly.”

“A fundamental theory of ours is that if you can show how people in power are operating, it will have serious impacts on families’ lives. It will matter,” added Austin Evers, executive director of American Oversight, who most recently served as senior counsel for oversight and transparency matters at the U.S. Department of State and prior to that as a litigator at Williams & Connolly.

In the health care space, one inquiry began for American Oversight with a request for ACA-change-related communications between leaders of Congress and those of HHS and the Office of Management and Budget. Evers predicts the results from the request “will show what they really thought and provide insight into what the real deal on health care is.”

“I’m guessing it doesn’t match the talking points,” he said. “In that state of fervor, the [Trump] administration probably could not have conducted itself with great email hygiene.”

The group, Evers said, is committed to promoting accountability and transparency through its five lawyers’ deep experience in handling “FOIA requests from the inside,” as well as litigation. Translation: These attorneys are ready to sue if those efforts are stymied by inadequate responses to records requests. In fact, the group filed on Wednesday in the U.S. District Court for the District of Columbia its first two lawsuits over government agencies’ failure to provide records.

“We know from experience that having top-notch legal skills paired with FOIA is how you get the best results as quickly as possible,” Evers said.

In its first month, American Oversight has already filed more than 100 requests for records, said Melanie Sloan, the group’s senior adviser and a former federal prosecutor who founded Citizens for Responsibility and Ethics in Washington, which she led for more than a decade.

The group is looking to grow its staff over the next year and develop partnerships with law firms nationwide interested in providing pro bono services, Evers added.

“We think that these FOIA cases are really excellent self-contained types of matters that a mid-level or senior associate can take on,” he said, noting that FOIA cases also are often easier to clear through a big firm’s conflicts process. “With more than 100 FOIA requests, there’s going to be a lot of litigation and not just in D.C.”

— Read Democrats, Heal Thy Opaque Selves on ThinkAdvisor.


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