Tuesday, March 11, 2014

Opinion: Public Information Act Oversight Badly Needed

The Maryland Public Information Act (MPIA) is one of the cornerstones of open government in this state, and it is one of the few tools available to citizens and the press allowing access to information.  Regardless of what issues you care about, the integrity of government requires that citizens have access to information about the activities of state and local government agencies.  In theory, the MPIA law provides broad rights of access to a wide variety public records with only a limited number of specific exemptions.

In practice however, matters can be quite different.  Many agencies have learned that there are numerous ways they can delay, obstruct, or deter requests for records which they, for whatever reason, do not wish to release.  In some cases agencies may deny a request and claim an exemption to disclosure.  But more commonly agencies will demand excessive fees, deny the existence of records, or in a few cases simply ignore a request completely.  Even though the law nominally requires a custodian to provide "immediate" access to many records and requires the release of records in no more than 30 days in any case, we have found that MOST agencies consider the 30 day period to instead constitute a minimum mandatory waiting period.  Indeed we have witnessed various forms of noncompliance with the MPIA first hand over and over again, by local governments all across the state.

One of the reasons this can occur because there is no oversight from the state of agency compliance with the MPIA.  The Attorney General publishes a manual on the MPIA, which lays out individual rights and agency responsibilities under the act.  However under Doug Gansler this agency has disavowed any responsibility for enforcing the act or investigating noncompliance.  A requester does have the right to file for "judicial review" in circuit court.  However going to court for any reason is an expensive, complicated, and risky proposition.  Government agencies can utilize taxpayer funded legal resources to defend a denial or the use of obstructive tactics, and incurring the costs of going up against an opponent with those kinds of resources is not a practical option for most ordinary citizens or even some media organizations. Agencies know they face little risk of penalties if a defendant prevails.  Agencies know full well that the time it takes to resolve a complaint in court could easily render documents useless for the purpose they were originally requested for.  Indeed the editor of this site was forced to file for judicial review over two obstructed MPIA requests last year, it has now been six months, and the end is still not imminent.

This year a bill was submitted to the state legislature which would create a "Public Information Act Compliance Board".  The bill (House Bill 658) is sponsored by Delegates Jill Carter, Glen Glass, Michael Hough, Neil Parrott, and Mike Smigiel.  It is modeled after the Open Meetings Compliance board, which oversees the other portion of the state's "sunshine law" that requires public meetings to be open.  Such a board would provide a viable option for appeal.  The fiscal policy notes describe the bill's purpose:
This bill establishes the State Public Information Act Compliance Board to (1) receive, review, and resolve complaints from any person alleging that a custodian either denied inspection of a public record or charged an unreasonable fee of more than $500 to obtain  the record; (2) issue a written opinion as to whether a violation has occurred; and (3) order the custodian to either produce the public record for inspection or reduce the fee amount to an amount the board determines to be reasonable and refund the difference. The bill also requires the board to (1) adopt regulations to carry out the bill; (2) study ongoing compliance with the bill by custodians; (3) make recommendations to the General Assembly for improvements to the bill’s provisions; and (4) submit an annual report to the Governor and General Assembly by October 1 of each year.
This approach would be far more cost effective and practical for both requester and agencies than having to go to court.  Indeed the fiscal policy notes for the bill state that "local finances will not be materially affected" and that the OAG could support the board's activities with existing staff.

The website StateIntegrity.org ranked Maryland 40th out of 50 for corruption risk, giving us a grade of "D-" overall and an "F" for "Public Access to Information".  That is unacceptable by any standard.  Maryland residents should demand far more openness from state and local government agencies, and passage of House Bill 658 would be an excellent step in that direction.

Additional Coverage:
Baltimore Sun: Bring Sunshine to Maryland
Delmarva Now: Md. Lawmakers consider forming public information act oversight
Frederick Post: Enabling the public's right to know