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Officials release consultant's broadband report

by Dave Boucher, Daily Mail Capitol Reporter

CHARLESTON, W.Va. -- State government officials at first declined to release a consultant's report on West Virginia's massive broadband Internet expansion project, but now they have decided to make the report public.

The document was protected under exemptions to the Freedom of Information Act, said Peter Markham, counsel for the governor.

It had nothing to do with whether the content was embarrassing, said Rob Alsop, Gov. Earl Ray Tomblin's chief of staff.

"I'm not sure that I agree that there's anything that's embarrassing," Alsop said Thursday from his office in the Capitol. "To the extent that any previous comments made to the effect that we were trying to hide something, was not really fair to the governor."

Earlier this month, The Charleston Gazette filed a Freedom of Information Act with the Department of Commerce, asking for the information. Department of Commerce Secretary Keith Burdette declined the request, saying "the documents may be embarrassing to some people," according to a Gazette">story published earlier this week.

That's not why the request was denied, Alsop and Markham said.

In Burdette's response to the FOIA request, he said the documents are a "confidential 'Draft Discussion Points' memorandum." As a memo, the information falls under an exemption of FOIA law, Markham said.

"The law in West Virginia is that if a document evidences the opinions, recommendations or advice of an outside consultant prepared for purposes of educating the state agency or executive, and it's predecisional, the agency has the right to consider those opinions, advice, and recommendations in its deliberative process," Markham said.

It doesn't matter if the information is sent between two employees of the governor or an employee and a Chinese consultant: if the information is intended for help in making a decision on a project that is not complete, it falls under this exemption of FOIA law, Markham said.

While West Virginia code states "Internal memoranda or letters received or prepared by any public body" are exempt, a ruling by the state Supreme Court expands that exemption to include consultants. In "Daily Gazette Co., Inc. v. West Virginia Development Office," the court states advice, opinions or recommendations from outside consultants or experts fall under FOIA exemptions.

The state paid an estimated $118,000 for the report, according to the Gazette article.

Nothing in state code prevents the state from giving out the report. However, that could persuade a consultant to be a little too tight-lipped, Alsop said.

"Whenever we get draft discussion points from consultants, we want to get free and candid advice," he explained.

That might not happen if the documents were released, Alsop argued.

At no time did the state agree with ICF that the documents would not be released. Alsop said he didn't think the consultants were operating under that notion, either.

"I did not sit down with ICF and say, 'We're not going to release this, so tell me everything you want,' " he said.

House of Delegates Minority Leader Tim Armstead, R-Kanawha, has introduced a bill that would essentially negate the FOIA exemption cited by the governor's staff.

The document consists of five pages of bullet points, numbered lists and recommendations. It criticizes Frontier Communications for some issues related to its work on the broadband Internet project.

The Broadband Technology Opportunities Program provided $126 million in federal grant funds for West Virginia to expand its high-speed Internet capacity. The grant was awarded in 2010 under the administration of then-Gov Joe Manchin.

In the spring of 2012, the Tomblin administration wanted to bring in experts to analyze how Frontier was doing with its implementation of the project. The Department of Commerce was already working with ICF on broadband issues at the time, so a request for consultation services on the broadband opportunities project was included.

The report, also completed in the spring, is scathing at times. It says Frontier isn't building the correct style of infrastructure for the project, uses products that "far exceed" what is needed and has problems documenting its work.

"As the steward of the BTOP grant, WV cannot be put into the position of improperly using public funds and cannot be party to Frontier decisions that subvert, appear to subvert, or are not in compliance to federal regulations and grant objectives," the report states.

Both the governor's staff and Frontier say the document is old and at times misleading. Alsop said ICF misunderstood some parameters of the project, particularly portions about what Frontier should be doing in regards to infrastructure work.

Any legitimate concerns were taken up with Frontier and satisfactorily addressed, Alsop said.

Dana Waldo, Frontier senior vice president and general manager, had stronger words about the report.

"The ICF report provides worthless, inaccurate and stale comments that merely repeat previously repudiated allegations. It is totally incomprehensible that ICF failed to realize that the project's federal oversight agency investigated such red herrings and soundly rejected them in November 2010," Waldo said in a statement emailed by a spokesman.

The National Telecommunications and information Administration, charged with oversight of the program nationwide, issued a report on BTOP in November 2010.

The project has repeatedly faced inquiry from many different angles. Following reports in the Gazette last year about massive routers purchases, federal and state auditors investigated the program. Both auditors found mistakes with several different facets of the program that potentially cost the state millions of dollars unnecessarily.

The governor's office has pledged to address some of those concerns. Now a U.S. senator, Manchin has said he will also talk about the project at a "broadband summit" created by the governor. Although at first he said he would speak at the March meeting, it was later announced the event was postponed until sometime in the near future.

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