Antiprivacy plot is well-kept secret

0 Comments | Insight on the News, August 24, 1998 | by James P. Lucier

Just when everyone thought the Clinton administration had learned its lesson from trying to keep secret the doings of Hillary Rodham Clinton's White House health-care advisory committee, another advisory committee, which is considering the "unique health identifier" for the Department of Health and Human Services, or HHS, has gone on record claiming an alleged right to keep its planning documents secret.

Back in February, U.S. District Judge Royce C. Lamberth fined the White House $285,000 for false and misleading statements made to the court by White House senior adviser Ira Magaziner in an effort to exempt Hillary Clinton's group from the sunshine-in-government provisions of the Federal Advisory Committee Act, or FACA. The Magaziner case was brought by the Association of American Physicians and Surgeons, or AAPS. Now AAPS has written to Health and Human Services Secretary Donna Shalala claiming that the National Committee on Vital and Health Statistics, or NCVHS, is not in compliance with FACA either. NCVHS has been charged with the task of drawing up guidelines for the universal medical card.

Jane Orient, a physician and executive director of AAPS, tells Insight: "I think the situation is getting very dangerous. The unique health identifier is definitely designed to do cradle-to-grave surveillance. It would give info on where a citizen is situated, where he works, what social factors are in his history, what financial factors. Whenever the bureaucrats want to hide something, you always wonder what they are trying to hide. Are they just hiding the special interests hoping to make a ton of money by imposing federal regulations on us? Or is it worse?"

The unique health identifier scheme would require that every man, woman and child in the United States be issued a plastic card with a microchip linking each to a data bank containing his or her complete health history. The requirement, a key part of Hillary Clinton's failed plan, was slipped into the 1996 Kennedy-Kassebaum bill (see Symposium, p. 24).

But it has horrified liberals and conservatives alike, with fears that privacy ultimately would be breached no matter what precautions were installed; The outcry forced the administration to put the project on hold -- for the time being.

Nevertheless, NCVHS is very concerned with its own privacy. In a full committee meeting last September the members took up a document titled "Ground Rules for Dealing With the Media and Other External Organizations" a draft copy of which has been obtained by Insight. This is essentially a plan to stonewall the media on documents and institute a gag rule on NCVHS members speaking in their official capacity as members. The so-called "ground rules" -- a term later modified to "guidelines" -- provided that all documents given to NCVHS members by HHS, and all NCVHS documents not approved by the full committee, must be kept in strict confidence and not be shared or discussed with anyone who is not a member of the committee or staff to the committee. The point of FACA is that the public has a right to know what advice private-interest groups are giving to the government.

Moreover, the NCVHS guidelines sought to constrain the rights of individual members: "Only those NCVHS members designated by the NCVHS chair as committee spokespersons with the media should respond to media requests."

The curious were directed to look at the committee's World Wide Web site, where the documents typically were posted two or three months after committee discussions. The guidelines were approved with only one dissent, but they never were released or placed on the NCVHS Web site.

The dissenter was Robert M. Gellman, a well-known Washington lawyer who specializes in privacy and information policy, formerly on the staff of the U.S. House of Representatives. He was the only member to spot the explosive political implications of what was being done. In June, he attempted to reverse the decision. "I think the policy that we adopted last September -- over my objection -- is pointless; it is unclear; it is inconsistent with current law; and it is stupid," he told his colleagues. Gellman complained that, to the public, the proposal would appear to be "conducting the hearings under an aura of secrecy, which is the headline.... We need to bend over backwards to make sure that the public knows as much as possible about what we are doing and what we are thinking about.

"Essentially, anything we are going to do at these meetings is a matter of great public interest. It is our obligation to be fair and open" Gellman tells Insight.

Don E. Dettmer, the NCVHS chairman and a vice president of the University of Virginia, is puzzled over the fuss. "As far as we know we are in compliance and have always been in compliance," he tells Insight. "Besides, the executive committee has been directed to look at this matter in September, and we will probably drop the guidelines."