Saturday, January 31, 2015

Legislature Failed In Timely Completion Of Open Records Study

We reported last year how the state legislature gutted a bill to reform the Maryland Public Information Act by replacing the proposal to create a state Public Information Act Compliance Board with a mere promise to complete a study by January 1, 2015 including receiving public input.  However January 1 came and went, and the study was never conducted.

The Maryland Public Information Act is the state's equivalent of the federal FOIA, and theoretically provides member of the public broad access to a wide variety of public records.  However Maryland nevertheless rates very low in transparency by some measures.  If a request is not handled by a local or state government agency in a timely manner, is denied, an excessive fee demanded, or the agency is just generally unresponsive in producing records, a requester must be prepared to spend months or even years disputing the matter in Court.

The Maryland Drivers Alliance has encountered exactly such difficulties obtaining information from some local governments, and has been forced to take two such disputes to court and in both cases substantially prevailed... but  only after enough time had elapsed to render many documents obsolete for the original purpose of the requests.

In the case of the other portion of Maryland's sunshine laws, the Open Meetings Act, Maryland has an Open Meetings Compliance board which permits a complaint to be brought for adjudication in a far more timely and less expensive manner.  This system works remarkably well.  The bill (HB 658) originally would have created a similar board for the Maryland Public Information Act which could adjudicate public records disputes in a timely manner, allowing disputes to be resolved far more quickly and saving both local governments and sequesters the cost of a protracted legal dispute.

The bill had strong support from the press and various organizations supporting transparency, none in the legislature were willing to actually speak against the bill openly, and the cost of the board had been deemed insignificant in the fiscal policy notes of the bill.  Despite this, the legislature instead deleted the entire content of the bill and replaced it with a mandate that the Joint Committee on Transparency and Open Government  "shall conduct a study on how to improve the administrative process for resolving appeals under the Maryland Public Information Act" including input from the OAG, the press organization, local governments, and "other parties that express interest in participating in the study".  The modified bill required that "On or before January 1, 2015, the Joint Committee shall report its findings and any recommended legislation to the Senate Education, Health, and Environmental Affairs Committee and the House Health and Government Operations Committee."

The Chairman of the Maryland Drivers Alliance sought to provide this study with information gleaned from the two MPIA appeals we were forced to file.  However we soon learned from the committee staff that the Joint Committee on Transparency and Open Government was dissolved by a different act of the legislature last year, and was replaced by a new committee which only recently began to be reconstituted.  Thus as of January 27, 2015, no study had taken place, and no hearings had been held to collect input from "other parties".

One is left wondering the legislature not only succeeded in dodging the issue of public records reform last year -- without the need to vote against it --- but also may have set themselves up to be able to claim that they cannot proceed with public records reform this year either since the required study has not yet been done.