Saturday, January 5, 2013

Some Local Governments Flout State Sunshine Law

Much of the information we publish on this website comes from public records obtained through the Maryland Public Information Act (MPIA, or the equivalent of a FOIA at the national level).  For example, those of you have been paying attention already know that Baltimore and their vendor recently were forced to make a stunning admission that many citations issued by some of their speed cameras were errors.  This was largely brought about by documents and information obtained by the press, by StopBigBrotherMD.org, and by supporters of our site.  Had it not been for access to those records, much of what is now known about Baltimore's problems would still be a secret.

Sadly, this often places us in a position of having to "look where the light is better", limiting our reporting to those jurisdictions which actually comply with Maryland's sunshine laws because it is impossible to get information out of some other jurisdictions.  Unfortunately in many cases what we have typically seen is at best minimal, grudging compliance with the MPIA, and at worst some jurisdictions have refused to provide any records whatsoever.

To be blunt WE ARE SICK OF IT.  So we would now like to spend some time talking about those local governments which apparently have even more to hide than those who have provided records.

We will start with The Town of Brentwood.  In 2010 the Washington Examiner reported that Brentwood's speed camera contractor was investigating possible errors by its cameras in Brentwood issued to buses.  And we also became aware that speed limit signs on US 1 had been changed, extending a reduced speed zone to a location where cameras had been deployed.  StopBigbrotherMD filed a Maryland Public Information Act request with the town of Brentwood in October of 2010 via certified mail requesting specific documents pertaining to these two situations (read request and certified mail receipts).  The MPIA requires local governments to respond to requests and provide records (with the exception of a very limited number of exemptions) within 30 days.  No reply was ever received by the town, despite several attempts by us to follow up by email (see correspondence).  After more than a year, we had still received no response whatsoever.

After additional information about errors by Optotraffic speed cameras came to light, we filed a second MPIA request via certified mail for additional records (see request).  We attempted to follow up via email (see emails) but after the maximum 30 days allowed by the law had elapsed we still got nothing from the town.  Finally on June 7 (five months after the legal due date for our second request had elapsed, and nearly 18 months after the due date for our first request), the town administrator finally sent a single letter reply, a letter which merely inquired whether we still wanted the records and did not specifically grant, deny, or provide any records (see letter).  Additionally, we were told that we would be required to pay a fee, including $200 per hour in attorneys fees, without specifying any estimate of the number of total hours involved.  The MPIA does permit local governments to charge fees under some circumstances, but bans "excessive fees", and requires them to consider fee waivers that are in the public interest.  Not to put too fine a point on it, but a requester were going to pay attorneys fees, it would be more effective to sue the town and subpoena the required records and require the town to justify their obstruction in court.  In any event, the letter did not actually grant access to ANY records, or consider the fee waiver, or even provide a specific estimate of costs.  Nevertheless in July of 2012 we responded by certified mail that we did still want the requested records and tried to follow up on THAT letter twice by email on August 31 and Dec 28 of 2012.  As of 1/5/2013... more than two years after our original request... we received no additional replies to those letters nor have we received one single record from the town of Brentwood.

Due to their contempt for state law, whatever Brentwood officials may have been hiding from the public all this time remains a secret.  Whatever contribution the information might have made to the public, legal, and legislative discourse on speed cameras has been successfully prevented by the town,  and whatever damaging records that might have existed may quite possibly have been purged by now.  And, two years later, there has been no report of the outcome of the supposed "investigation" by Optotraffic into speed camera errors on large vehicles.

Prince George's County
Brentwood is not alone in scoffing at the law.  We reported in 2010 how Prince George's county failed to provide records in response to a seemingly harmless request for the locations of newly created school zones.  Despite the passage of TWO YEARS and NUMEROUS attempts to follow up on the request, and proof that our requests were received and sent to the office of law, we never received any documents or any response either granting or denying our request.  What's the big secret?   Were they perhaps protecting safety around some top secret CIA daycare center or something?  Because otherwise this obstruction for obstruction's sake makes no sense.

We even CC's the Office of the Attorney General(OAG) on our correspondence with PG County, who cc'd both us and the county a terse message "Please be advised that the Office of the Attorney General has no enforcement over MPIA requests.  Please do not copy this office.  There are remedies available for non-compliance in the MPIA manual.".  The OAG maintains a manual on the MPIA, but apparently does not feel it is their duty to do anything when local governments fail to comply with it.  Instead they cc'd PG county on that response so they would take it as tacit permission to ignore our request unless we were prepared to spend thousands of dollars suing them.  Sure enough, after PG county received the OAG's response ALL COMMUNICATION FROM THE COUNTY CEASED, and we were never able to get any response on the status of our request after that point.  Frankly this is another example of why we here believe the OAG should be renamed "The Department of Helping the Government Break the Law", or perhaps the people of Maryland would be better off if the OAG were disbanded than we are with an office holder who believes his job is to cover for local governments that break the law..

This is not the only time PG County scoffed at the law.  On 10/21/2011 we filed another MPIA request with  the Prince George's County police, on a different matter pertaining to a specific camera which had been reported in the press to have incorrectly issued tickets when it legally should not have been running.  This time we did get a reply, but a pitiful one... and one which they sent several days after the 30 days from the date of receipt they were required to respond.  Of the ten items we requested, all but two were not provided:
- We requested copies of "annual calibration certificates" for a specific camera.  The county responded that they were not in custody of such records. State law requires that annual calibration certificates for speed monitoring systems be kept "on file".
- We requested copies of the "timecards".  The county stated that the request was granted, BUT NO TIMECARDS WERE IN FACT PROVIDED.
- We requested copies of the operating manual and operator training for this speed camera, they stated that they did not have custody of such records.
- We requested copies of citation approver instructions, and what they provided was a one page document, WITH ALMOST THE ENTIRE CONTENT REDACTED, including most of the specific things the officer is supposed to be checking.
Apparently they thought this was funny
- We requested copies of the technical specification for this type of speed camera, and they said they did not have custody of such records.  (yet the county police allegedly thoroughly vetted the accuracy of the devices before starting their program).
- We requested correspondence between PG county and Optotraffic regarding a specific event of errors by a specific speed camera.  The County claimed they did not have custody of such records, even though this occurrence had been widely reported in the mainstream press, even though both the county and Optotraffic had publicly commented on the event with the county citing a specific cause.  The idea that there was no correspondence regarding this seems highly implausible to us.
- We requested a copy of the county's speed camera contract, and they claimed not to have it, and that we would need to request it from another department.  Now we think this is absurd: contracts are ALWAYS disclosable under the MPIA and the PG County police are responsible for implementing this particular contract, in our opinion they MUST have received a copy of the contract at some point.  Furthermore the state's MPIA manual specifically says that if an agency is not the custodian of a record, the proper thing to do is to refer the requester to the correct department (if known) within 10 days or forward the request to that department, and it makes clear that it is improper to wait 30 days and simply say "no".  Referring us to another department MORE THAN 30 DAYS after the request was received was in our opinion a transparent attempt stall our access to the contract.

Forest Heights
We have reported in the past how the town of Forest Heights scoffed at the MPIA, claiming a wide variety of exemptions from the MPIA in order to deny our request.  We filed two follow-up requests to which they did provide an EXTREMELY limited number of records, but in our opinion what they provided was nowhere close to the volume of responsive documents which they SHOULD have had given the number of times the town's speed camera program was in the news, and the number of motorists whose complaints we were already aware of.  One document we did manage to extract from the town showed that the town rewrote its "general orders" on 1/5/2011 (after the date of our first MPIA request) to designate most records pertaining to speed camera program as either "investigatory records" or "proprietary", exempting them from disclosure.  It suffices to say that in our opinion Forest Heights hasn't been even remotely transparent or cooperative with our investigation and requests, and that the likely reason for their obstructions is that they had a LOT to hide.

Different Requestors, Different treatment?
Of course our website is not the only one which gets blown off when seeking information about speed camera programs.  The Baltimore Sun complained how some local speed camera programs provided very mixed levels of compliance with their requests for information and how their investigation met many delays.  This is the treatment received by one of the most read newspapers in Maryland, which had generally give friendly coverage towards speed camera programs in the past, and which know the ins and outs of the MPIA and which local governments all know has it's own legal department.   For individual ticket recipients (or small organizations like our), who don't have such resources, the situation may be almost a brick wall.  Frequently ticket recipients are denied access to information they are seeking for their own legal defense.

The City of Laurel
In the case of an August 2011 request made by one defendant:



the City of Laurel denied access to daily setup logs and annual calibration certificates, training certificates  operator time-cards, and  claiming that they did not have custody of the requested records, which were in the custody of the contractor .  The annual calibration certificates, daily setup logs, and training certificates are  disturbing, because the wording of state law requires that such documents be "kept on file" and that they are required evidence.  In addition, it makes no sense that the contractor (in this case Brekford Corp) would be custodian of the operator's time-cards.  Under the terms of their contract the "operator" is the city, not (this is required in order for them to circumvent the ban on paying contractors  a cut of each ticket, using the usual basis that the town "operates" the cameras).  There is thus no plausible reason why the contractor should have a city employee's time-cards.  This all gives the appearance that the city was outsourcing all responsibility for their program to their contractor and claiming they are exempt from the MPIA specifically for the purpose of preventing ticket recipients from obtaining evidence for their defense in advance of their trial.

New Carrollton
On September 19, 2011 the City of New Carrollton made an almost identical denial to the one by Laruel above, in response to an MPIA made by another defendant contesting one of their tickets.  The city denied access to both daily and calibration logs, among other records, claiming they were in the custody of the contractor.

(By coincidence, the two towns employed the same attorney, so their similar inappropriate interpretation of the law is not that surprising).  The city also denied this individual access to emails about speed camera errors or other city records, claiming they were either "investigatory records" or contained personal data.  (Normally the correct thing to do when a document contains a limited amount   However New Carrollton did provide some emails to a later request filed by StopBigBrotherMD.org, but only after imposing a substantial fee for the request.  One of those documents revealed that New Carrollton's speed cameras had produced a "false speed trigger", similar to events which were revealed to have happened in Cheverly.  However this information proving that the city's cameras were capable of error arrived too late for the defendant seeking it for his legal defense, and does not explain why the city was unwilling or unable to produce calibration records legally required to be "kept on file" under state law upon request.

Those who support photo enforcement will often say that "if you aren't doing anything wrong you have nothing to worry about."  However local governments often behave as if this applies to the people but not to the government itself.  Those who place cameras on every street corner to fine drivers for their mistakes have no right to keep secrets.  And government officials who believe they can do almost anything to strip away people's legal rights in the name of "the law is the law" are not entitled to any leeway when they fail to comply with the law.  Speed camera programs frequently make claims that their programs are "successful" and that cameras are fair and accurate.  But there is no way to objectively determine whether that is true when those who control access to data can, at their discretion, obstruct critics from obtaining the raw information which might support or refute those claims.  In any case, the purpose of the MPIA is clearly written into the text of the law: "All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees", and the MPIA manual makes it clear that the presumption is on the right to access.  It is past time that ALL of Maryland's speed camera programs be required to FULLY AND CONSISTENTLY live up to their obligations under the state's sunshine law and their responsibility to transparently uphold the public trust..