Thursday, June 19, 2014

Prince George's Sentinel: Circuit Court Rules Against Morningside

In today's Prince George's Sentinel:
UPPER MARLBORO – On May 23, a Prince George’s County Circuit Court judge ruled the town of Morningside broke the law when town officials refused to provide information about its speed camera program in a timely manner.
According to Judge Albert Northrop’s order, Morningside “failed to maintain the requested records, conduct a reasonable search for the records, or provide [Ely] with the name and possible location of a possible custodian,” pursuant to the law. “If Respondent had been compliant this lawsuit would not have been necessary,” Northrop wrote in the court order.
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The chairman of the Maryland Drivers Alliance brought the case "pro se" after Morningside denied a request under the Maryland Public Information Act for speed camera calibration records in 2013.  "Please be advised that the Town of Morningside is not the speed monitoring system operator as that term is defined in the Maryland Annotated Code, and, therefore, the Town of Morningside does not maintain the records and documents pursuant to your request."  The specific records requested in this case were "daily setup logs" and "annual calibration certificates" which Maryland's speed camera law specifically states "shall be kept on file", indicating a statutory requirement for the agency to have the records and that they should be disclosable public records under the MPIA.

The case could have implications for the transparency of speed camera programs, but also for local government transparency in other matters as well.  As stated in the May 29th ORDER "Respondent argued that the records were not in its possession because they were held by a contractor.  To allow public records held by a contractor to be exempt from the Public Information Act would be to render the entire act ineffective."

There have been few cases dealing with the issue of public records outsourced to the custody of a private contractor under Maryland law.  The Attorney General Manual on the MPIA states "an agency’s records remain “public records” even if the agency outsources the task of maintaining them to a private contractor".  The federal FOIA has much more extensive guidance written by the DOJ that "agency records maintained for an agency by an entity under Government contract, for the purposes of records management, remain subject to the FOIA".

Such documents must clearly be "public records" rather than "contractor records" because of the statutory requirement for retention, because of the fact that these documents are required for citations to be issued by agency police and for citations to be upheld in court, and because Brekford confirmed to us that their clients have immediate access to all of the requested documents.

In May, Brekford Corporation complied with a subpoena to produce the calibration records we had been seeking for 11 months since the request was originally placed with the town.  On June 12 the Attorney for Morningside submitted a consent motion and agreed to reimburse $307 in actual costs in compliance with the May 29th court order.

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