A contractor that worked on the Obama administration's health care website agreed to turn over documents subpoenaed by the House Committee on Oversight and Government Reform, determining that a request by the Department of Health and Human Services to keep the documents private did not apply.
On Dec. 10, the oversight committee subpoenaed Creative Computing Solutions Inc., seeking documents related to "security vulnerabilities present in the HealthCare.gov website that pose a risk to sensitive personal information submitted by applicants seeking coverage," according to a news release by the committee.
But four days before the request was made, the Centers for Medicare and Medicaid Services told the company it was not allowed to turn over any documents without the agency’s authorization.
In a letter released by the oversight committee, Daniel Kane, director of the agency’s Office of Acquisition and Grants Management, told Creative Computing that under the terms of its contract, it was “not authorized to disclose to third parties information collected or maintained by or on behalf of a federal agency.”
The letter continues, “You may not release information without authorization…If you receive a request for this information from Congress, [the Centers for Medicare] will respond directly to the requestor and work with the requestor.”
It's a highly unusual demand, said John Boese, of counsel at Fried, Frank, Harris, Shriver & Jacobson, who litigated a similar case as a Justice Department lawyer during the Ford Administration.
In that case, the government sued AT&T to stop it from complying with a subpoena from Congress. Creative Computing "is caught between a rock and a hard place," he said. "I think the company has to take the position that you have to comply with a subpoena from Congress. Congress can find you in contempt if you refuse to comply and no company wants that."
Creative Computing came to the same conclusion. The company takes its “contractual compliance and customer relations extremely seriously,” wrote Senior Vice President Maggie Bauer to Kane on Dec. 10. “To that end, [Creative Computing] has concluded, after consulting legal counsel, that the enclosed subpoena compels production of the documents requested and, therefore, falls outside the above-referenced contract clause and guidance letter from your office.”
Bauer continued, “A validly-issued congressional subpoena compelling the production of documents that are within [Creative Computing] possession is neither a ‘request’ for documents nor an ‘unauthorized’ disclosure of such documents.”
A representative from the Centers for Medicare did not immediately respond to a request for comment, nor did a spokeswoman for Creative Computing.
Oversight committee Chairman Darrell Issa (R-Calif.) in a news release said the company’s “analysis of the law is correct and its decision to comply protects its executives, investors, and customers from the risk of criminal prosecution for contempt of Congress.”