State ordered to release some records on Obamacare exchange workers

CARSON CITY — Carson District Judge James Wilson on Thursday ordered the Nevada Division of Insurance to turn over some records sought by media organizations about who applied to work as state insurance navigators for the Affordable Care Act.

Those records include applications from about 250 people who sought jobs through the Insurance Division for insurance navigator jobs and had their names forwarded to the separately operating Silver State Health Insurance Exchange.

Wilson, who will formalize a written order in the next few days, said records the agency obtained from the national criminal history database as part of that review process are confidential and need not be disclosed by the agency.

But any other records the division wants kept confidential must be submitted to the court summarized in a log, which the media groups then could possibly seek, too.

Wilson also awarded attorney fees and costs to the media organizations, saying that the penalties are needed to ensure that public agencies comply with the full intent of the state’s public records law.

The National Review sued the agency to obtain records of nearly a dozen Silver State Health Insurance Exchange program navigators who might have criminal histories. The Las Vegas Review-Journal joined the lawsuit.

In a 2½-hour hearing, Wilson said he did not believe that the Insurance Division complied fully with Nevada’s public records law when it refused to turn over any documents sought by the bimonthly magazine.

“I just have the impression of hiding the ball,” Wilson said at one point in the hearing about why the division turned over no information and failed to provide an avenue for the release of at least some records.

Attorney Donald Campbell, representing the media groups, said, “This is not just hiding the ball. They are not even telling you if they have a ball to hide.”

Senior Deputy Attorney General Joanna Grigoriev said the agency might seek a stay of Wilson’s order while a decision is made whether to appeal his ruling to the Nevada Supreme Court. Unless a stay is granted, the information will have to be released within the next several days.

Grigoriev said the agency tried to comply with the records request but could not because the information being sought was related to criminal history information, which could not be made public under law.

The ruling means, in the least, that the applications filed with the Insurance Division soon could be released to the magazine. Those applications include limited information on whether the applicants have criminal histories.

But Campbell made it clear the request is also for other information, including the agency’s process for vetting information provided by applicants and what types of criminal convictions would prevent applicants from being hired for positions.

The public needs to know whether the division contracted out the work of vetting the applicants, for example, he said.

Campbell said the information is crucial to the public. Navigators have access to the most confidential information held by Nevada residents, who are required by law to obtain health insurance under the federal Patient Protection and Affordable Care Act.

The hearing was contentious at points, with Wilson asking Grigoriev why the agency did not offer an alternative to National Review investigative reporter Jillian Melchior when her initial request was denied.

Grigoriev said the exchanges by the agency and Melchior were combative and that it was difficult for the agency employee “to get a word in.”

Grigoriev acknowledged that there should probably have been better communication but said the agency’s response should not subject it to paying media groups’ attorney fees and costs.

Campbell said the agency stonewalled the reporter and never intended to provide any information. When the public records request indicated that the reporter had information about the potential of navigators with criminal convictions working in Nevada, Insurance Division staff had an “uh-oh” moment, realizing that damaging information about Nevada’s program might be made public, he said.

Grigoriev countered that if the reporter had modified the request and asked for all applications, the information would have been provided.