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Battle Heats Up Over Paper Trail

Rep. Elijah Cummings, D-Md., the ranking member of the House Oversight and Government Reform Committee, left, accompanied by the committee's Chairman Rep. Darrell Issa, R-Calif.

Rep. Elijah Cummings, D-Md., the ranking member of the House Oversight and Government Reform Committee, left, accompanied by the committee's Chairman Rep. Darrell Issa, R-Calif. // J. Scott Applewhite/AP

This story has been updated to clarify a dispute over House rules regarding disclosing subpoenaed documents. 

A battle over the paper trail documenting the troubled building of the Obama administration’s online health insurance marketplace heated up on Friday as contractors declined to withhold some documents from congressional overseers and the lead investigating committee’s ranking Democrat accused his Republican counterpart of unfair dealing.

In a related move, Democrats on the House Oversight and Government Reform Committee invoked House rules that they say bar Oversight Chairman Rep. Darrell Issa, R-Calif., from publicly releasing any of the newly obtained contractor documents until after a special committee meeting to negotiate terms for the documents' release. 

The Democrats' interpretation of the rules is disputed. 

Democrats have accused Issa of selectively leaking sensitive documents to damage the White House in a manner that could endanger national security and invade Americans' privacy. They say the contractors' documents at issue could show hackers a path to pull consumer information out of's servers.

On Wednesday, Issa accused Health and Human Services Secretary Kathleen Sebelius of criminal obstruction  for directing contractors to pass any congressional document requests through the Centers for Medicare and Medicaid Services rather than providing them to the committee directly.

HHS said the agency had already shown the requested documents to committee members and staffers and that presenting them publicly would jeopardize exposing government technology secrets and citizens’ personal information.

On Friday, Issa released a letter from the contractor Creative Computing Solutions telling HHS it planned to turn over the requested documents and that it does not believe a contract clause precluding it from sharing documents with third parties applies to the oversight subpoena.

Later on Friday another contractor, MITRE, also agreed to turn over subpoenaed documents to the committee. The company said in a letter that it still believes documents should be transmitted through HHS but lawyers advised the company that it must comply with the subpoena. Issa claims the disputed documents reveal security vulnerabilities in that should have driven agency leaders to delay the marketplace’s Oct. 1 launch date.

“Americans should be disturbed that this administration is trying to stop government contractors from providing Congress with documents related to the decision to launch while known and serious security vulnerabilities were and still may be present,” Issa said in a statement. “CCSi’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.”

Meanwhile, the oversight committee’s ranking member, Rep. Elijah Cummings, D-Md., released a letter to Issa accusing the chairman of dangerous grandstanding.

Cummings said Issa agreed to consult with him before issuing any subpoenas related to but then insisted on issuing the subpoenas while Cummings was in South Africa for Nelson Mandela’s funeral.

“Since you became chairman of the committee in 2011, you and your staff have engaged in a reckless pattern of leaking sensitive information and documents to promote political narratives that turn out to be inaccurate after further investigation,” Cummings wrote. “You have ignored repeated requests to consult first with committee members, law enforcement officials and agency experts to understand how your disclosures might harm our national interests.”

Cummings’ criticisms were echoed by other committee Democrats Rep. Gerry Connolly, D-Va., and Rep. John Tierney, D-Mass. performed disastrously when it first launched, preventing the vast majority of insurance seekers from enrolling in plans through the site. The site gradually improved through November but only enrolled 137,000 people in insurance plans during its first two months. An additional 227,000 people enrolled in plans through state-run marketplaces.

The government hopes to enroll 7 million people in insurance plans through state and federal marketplaces by the end of March. Falling significantly short of that number could increase the level of risk in insurance pools, making premiums unsustainably expensive.

Officials say the site has been operating at an acceptable level with error rates lower than 1 percent and pages responding to customer clicks in less than 1 second since a self-imposed Nov. 30 deadline. During a massive repair process, officials instituted a new management structure, added servers, fixed more than 400 computer code errors and installed a queuing system to keep the site from becoming overburdened by high traffic. 

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