Attorney General Gary King says the order doesn’t appear to require the administration to keep the audit secret and that his office is unaware of any state or federal law or regulation that prohibits release.
Still, King says he opposes public disclosure of the audit because it could hamper a criminal investigation by his office and says he has asked the administration not to release it.
The AG’s Office has refused a request by the Journal to release the full audit, citing the law enforcement exception to the Inspection of Public Records Act.
King said the Inspection of Public Records Act doesn’t bar release of government documents but that the administration also could deny a request for the audit based on the exception under the act, which his office cited, for law enforcement documents.
The audit allegedly shows $36 million in overpayments by the state to behavioral health providers over three years, widespread mismanagement and possible fraud.
As a result of the audit, the Human Services Department in June halted funding to 15 behavioral health providers, which rendered a large chunk of the mental health and substance abuse services to low-income residents and other recipients of Medicaid.
The administration has brought in Arizona companies to take over 12 of the providers and provide oversight and training for the other three. HSD says its goal is to minimize any disruption in services.
Providers have complained that the secrecy surrounding the audit has left them unable to adequately defend themselves against the fraud allegations while driving most of them out of business.
Some state legislators also have accused the administration of smearing the providers by making public only a summary of the audit.
In a recent interview with the Las Cruces Sun-News, Martinez said her office was prepared to release the audit but was requested not to by the attorney general and later ordered not to by a district court.
Martinez also said Human Services Secretary Sidonie Squier cannot say certain things if they are based on the audit.
“That has been the complication,” the governor told the newspaper. “She (Squier) doesn’t want to be held in contempt of court.”
Asked about the governor’s remarks, Martinez spokesman Enrique Knell cited an order signed last month by state District Judge Sarah Singleton in Santa Fe.
In that document, Singleton ordered the Human Services Department to provide the audit to the State Auditor’s Office and ordered that the State Auditor’s Office maintain the confidentiality of the audit. King’s office requested the confidentiality protection.
King said in an interview Tuesday that the judge’s order to maintain the confidentiality of the audit didn’t appear to extend past state Auditor Hector Balderas and to the administration.
King said that if there is any confidential patient information in the audit, it would have to be redacted under federal law before any public release.
Knell said Martinez didn’t misspeak about the judge’s order.
He said the order and King’s request that the State Auditor’s Office be ordered to maintain the confidentiality of the audit “make it very clear that the audit is not subject to disclosure.”
“It’s reasonable for the Secretary (Squier) to be concerned about (a) interfering in an investigation relating to the misuse of Medicaid funds, and (b) not following a court order to maintain confidentiality of the audit,” Knell wrote in an email.
The administration has consistently maintained that the Attorney General’s Office requested that it not publicly release the audit because of the AG’s investigation.
A spokesman for the Human Services Department initially said federal regulations prohibit public disclosure but has since said he misspoke.
The Foundation for Open Government has said the audit should be publicly released, arguing it isn’t a law enforcement document just because it was sent to the AG.
UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at email@example.com or 505-992-6280 in Santa Fe. Go to www.abqjournal.com/letters/new to submit a letter to the editor.