On Disclosing Docs, Shumlin Offers Contradictory Explanations

Updated below at 7:59 p.m. with more comment from Shumlin and the documents his office provided:

In this week’s Fair Game, we wrote about Gov. Peter Shumlin’s pledge last month to waive executive privilege and release all documents related to his decision to end his long quest for single-payer health care.

Shumlin made the commitment after WCAX-TV’s Kyle Midura asked at a crowded Statehouse press conference, “Will you waive executive privilege for all backdated documents at this point related to this question so we can see what you knew when?”

In response, the governor said, “There is nothing to hide on what we knew when, so we’d be happy to show you any documents you wish to look at.”

Turns out Shumlin might have something to hide, after all. As we wrote in Fair Game, Seven Days and other news outlets took the governor up on his offer, filing records requests seeking health care-related communications between him and his advisers. Last week, his office provided 57 emails (see below), but withheld the rest — invoking executive privilege. (Shumlin did release a separate tranche of documents in December, including 1,000 pages of memos and briefing documents.)

Why the flip-flop? Shumlin’s legal counsel, Sarah London, explained in an email to Seven Days Monday night:

Regarding the Governor’s statements on December 17, 2014, the Governor was asked about waiving executive privilege on documents related to the specific question of Medicaid reimbursement rates. We feel that is reflected in the recording of the event.

As this week’s Seven Days went to press Tuesday evening, Vermont Public Radio broadcast a story by Statehouse reporter Peter Hirschfeld on the same topic. VPR filed a similar records request and was also told by the Shumlin administration that it had invoked executive privilege.

But according to Hirschfeld, Shumlin himself provided a markedly different explanation than London.

Here’s Hirschfeld:

Shumlin says he never intended for him (sic) comments on Dec. 17 to mean that he’d release all internal communications related to single-payer.

“Now no governor ever divulges inter-staff conversations, but what we did divulge was all the data that led us to the conclusions that we came to,” Shumlin said.

Shumlin said he assumed Midura’s question referred only to documents that had been the subject of a long-running court case in which a legislator – Arlington Rep. Cynthia Browning – had sought access to worksheets, economic modeling, and other records related to the development of the single-payer proposal.

“Well as you know we had a fairly well-publicized court case … where we were asked to divulge all the data, studies and information about every detail that led us to the disappointing conclusions that we came to about public financing,” Shumlin said. “I assumed that his question was simply, are you going to continue to withhold that data? Or are you going to share it?”

Weird, huh? The governor’s legal counsel tells Seven Days that Shumlin thought Midura’s question related to “Medicaid reimbursement rates.” But the governor himself tells VPR he thought it related to Browning’s lawsuit.

Why the discrepancy? Did the administration fail to get its story straight? Seven Days asked the governor’s staff that question Tuesday evening, but as of this posting has not heard back.

Of course, Shumlin’s varying explanations are beside the point. It was clear to anyone in the room that Midura was asking the governor to waive executive privilege for all documents related to his single-payer deliberations.

Midura himself told Seven Days on Monday, “I was asking to see the communications regarding single-payer health care and the conversations the administration was having surrounding the topic.”

And it was clear from Shumlin’s “nothing to hide on what we knew when” answer that that’s precisely how the governor interpreted the question at the time.

Care to see for yourself? Just watch the following video (fast-forward to 1:59) recorded by VTDigger.org. Videos of the rest of the press conference are available here.

We’ll be sure to let you know when Shumlin comes up with his next explanation.

— — — — —

Updated below at 7:59 p.m.:

Shumlin elaborated on his thinking Wednesday afternoon during an unrelated Statehouse press conference after Seven Days sought clarification. Here’s the exchange:

Seven Days: “You said a month ago that you would waive executive privilege for requests about documents related to single-payer. But when a number of media outlets recently made some requests, you did invoke executive privilege. Can you just explain why?”

Peter Shumlin: “Sure. As you know, I made very clear that — let’s remember the topic of the conversation was the financing plan of single-payer health care. I was asked at the press conference, ‘Will you now tell us what you knew when and release the documents that would indicate that?’ I said, ‘Absolutely.’ And that’s exactly what I’ve done. So Kyle’s question to me — Kyle was just here — was, ‘Now that you have stated that, unfortunately, you can’t get there now, will you waive executive privilege to release the documents, the data, the research, when we knew what, all the facts that have been worked on both by my team and the folks that we hired?’ And that’s exactly what we did.”

Seven Days: “Well my understanding is that he was asking for you to waive it for all documents related to your—”

Peter Shumlin: “Well, Paul, let me just correct that—”

Seven Days: “—single-payer preparations and that’s the way that you answered it at the time, so I’m just wondering—”

Peter Shumlin: “Paul, that’s simply inaccurate. If you listen to the entire question, I answered it very clearly. And what I said was, the question I understood — I had it played back to me, so I think I got it — was, ‘Are you going to release the documents that, frankly, hadn’t been released before?’ You may recall Cynthia Browning requested them and we went to court and the court ruled in our favor. ‘Are you now going to release those documents? The documents that give us the data, all the dates, what you’ve done, all the studies?’ And I said, ‘Of course, we are. We want Vermonters to have that information.’ If you took the question as something else, you should’ve asked it that way. You didn’t.”

Seven Days: “Let me just ask now, then: Is there any reason why you wouldn’t release the other emails that your office withheld?”

Peter Shumlin: “My office [doesn’t], nor does any governor, ever release emails between staff that are critical to communication to develop policy. I don’t do it. Other governors don’t do it. There’s nothing unique about this. What’s unique about this is that you think that a question was asked that wasn’t.”

Seven Days: “Thank you.”

Below are the communications Shumlin’s office did provide:

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