They Don’t Want You to Know
From my contribution to Sunshine Week at Watchdog Wire Maryland.
According the to the Maryland Attorney General’s Office the Maryland Public Information Act exists to grant Marylanders “a broad right of access to public records.”
The law applies to all three branches of state government and anyone can submit a request for public records. Maryland’s Public Information Act can be found in §§10-611—10-630 of the Annotated Code of Maryland.
The law defines a public record as “original or copy of any documentary material in any form created or received by an agency in connection with the transaction of public business. Included in this definition are written materials, books, photographs, photocopies, firms, microfilms, records, tapes, computerized records, maps, drawings and other materials.” This also includes salaries of public employees.
The law defines a public record as “original or copy of any documentary material in any form created or received by an agency in connection with the transaction of public business. Included in this definition are written materials, books, photographs, photocopies, firms, microfilms, records, tapes, computerized records, maps, drawings and other materials.” This also includes salaries of public employees.
There is no uniform process to submit PIA request, and state entities handle requests differently and have their own fee structures they use to charge for requests.
Anyone may submit a request for a public record, and there is no requirement to state a reason for the request. If public records are found responsive to a request the law states the custodian of the records must produce the documents immediately after receipt of the written request. The law allows custodians 30 days to produce records if the request requires extra time to fulfill. When custodians deny a request, they must supply a written explanation with the reasons for denial, the legal authority, and available remedies for review of the denial.
On its face, the PIA appears to grant that “broad right of access.” In practice however, state agencies use provisions in the law to withhold records at the expense of the transparency the PIA ostensibly requires.
The PIA contains several provisions, which allow state agencies to deny a records request. Confidential medical and personnel, Motor Vehicle Administration records, and trade secrets are exempt from the law. Common law privileges such as attorney client and executive privilege exempt certain records from disclosure. Also, agencies may withhold documents on the capricious basis that release would be “contrary to the public interest.”
A denial may be appealed to an administrative law judge, but the process is lengthy and requires legal assistance.
The Center for Public Integrity’s State Integrity Report (on which Maryland received a D- and ranked 40th in the nation) had this to say about Maryland’s Public Information Act
While Maryland’s Public Information Act theoretically grants broad access to public records, critics say vague exemption language allows government agencies to deny information requests for almost any reason. With no overall oversight mechanism, each state agency handles its own public information requests, with its own response and billing practices. If a request is denied, the only redress is appealing to the same denying agency official or initiating a costly court challenge. In practice, this means that many public information compliance issues go unresolved.
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Andrew Schotz, a reporter for the Hagerstown Herald Mail, described the PIA and the state’s Open Meetings Act as “weak and weasel worded.”Baltimore Sun and Frederick News Post columnist Marta Mossburg told me that on multiple occasions the Department of Housing and Community Development refused to give her information on delinquent loans from its community loan program. “This is taxpayer dollars being loaned to individuals and for some reason that information is considered off limits.” Mossburg said.
Last year, Mossburg broke a story about the troubled financial history Carl Williams, a politically connected developer, selected by Governor Martin O’Malley’s administration to build DCHD’s new headquarters in Prince George’s County. DCHD refused to release public records about Williams to her.
Some agencies use exorbitant fees to avoid complying with the sprit of the PIA.
In 2007, The Maryland Department of Environment denied a records request by investigative reporter Paul Chesser, who sought documents related to Maryland’s climate change commission.
MDE told Chesser that emails related to his request were withheld because constituted “inter-agency & intra-agency documents containing deliberative materials… and their disclosure would be contrary to the public interest.”
Chesser was seeking the details of MDE’s contract with The Center for Climate Strategies to operate the Maryland Commission on Climate Change. Governor O’Malley created the commission through an executive order.
Subsequent investigation revealed that the Easton-based Town Creek Foundation, a funder of radical environmental causes, funded the Center for Climate Strategies work in Maryland. The Town Creek Foundation essentially paid for the commission and wrote its report.
Shortly after, I submitted a request to MDE for the same information Chesser requested. MDE sent me a response that the records was available, but that it would cost me $1,381.40 for 4 hours of staff time to review 3,700 documents. For a citizen journalist with no budget, that fee discourages following through to get the documents.
MDE responded that the documents were available, but that it would cost me $1,353.55 for 44 hours of staff work and 36 cents per printed page, even though I requested the documents on CD-ROM. Again, that fee was unaffordable.
In 2009, I requested records from MDE regarding the special interest groups involved in crafting the regulations to implement the Greenhouse Gas Reduction Act—the passage of which was the animating purpose of the climate commission.
Other agencies withhold documents relying on claims of executive privilege and that the documents are of a deliberative nature that would negatively affect the decision- making process.In the late summer of 2010 during the height of O’Malley’s reelection campaign, I was investigating the O’Malley administration’s scrubbing of an embarrassing employment report by the state’s labor department. At 10:00 am on August 20, the Maryland Department of Labor Licensing and Regulation published on its website its jobs report for the previous month, which stated, “Maryland’s economic recovery faltered in July.” That report contradicted O’Malley’s statement that the state was continuing to “improve the conditions that allow businesses – large and small – to create and save jobs.” By 3:00pm the report disappeared from the DLLR website.
I filed a PIA request with DLLR for records related to the request. DLLR released a trove of emails, which revealed a flurry of late night activity by O’Malley’s press secretary and DLLR officials scrambling to replace the accurate, but politically inconvenient report with a report more in line with O’Malley’s reelection campaign rhetoric. O’Malley repeatedly denied he was aware of the negative employment report.
Even though it released a great deal of records to me, DLLR withheld even more pertinent documents claiming executive privilege and that some documents contained “deliberations, advice, or recommendations in the decision making function, as well as certain confidential executive communications of an advisory or deliberative nature.” DLLR claimed that release of these “pre-decisional documents” would “inhibit debate and discussion within the agency and would thus impair the integrity of the agency’s decision making process.”
This time, I decided to appeal to an administrative law judge for review of DLLR’s denial of part of my records request. In the end I withdrew my request as DLLR filed for a summary motion to dismiss my review, and I could not afford legal representation to fight the agency. However, DLLR’s motion contained a Vaughn Index, which is a summary of each withheld document and the agencies reasoning for withholding.
DLLR’s Vaughn Index revealed emails (dates, time, senders and recipients, but not their content) indicating high-level members of O’Malley’s inner circle were involved in the late night scramble to take down the report. Those officials include chief of staff, Matthew Gallagher, deputy chief of staff Ted Dallas, and O’Malley’s body man Colm O’Comartun, whom O’Malley would install as Executive Director of the Democratic Governors Association shortly thereafter. That these close aides, especially O’Comartun, were involved suggests that O’Malley was most likely aware of the embarrassing report.
The Maryland Public Information Act needs to stronger provisions favoring more disclosure, and close the loopholes, which allow government agencies to technically abide by the law, while violating the spirit of the law. State legislators need to implement a uniform process for records requests and fee structure, along with a strong oversight review process to ensure state agencies abide by the spirit of the law.
For more on Maryland’s Public Information Act see the Office of the Attorney General’s extensive PIA manual. For aspiring transparency watchdogs, check out our tip sheet. For more information on how to get involved in citizen journalism, tips and story ideas, please contact me at Maryland@WatchdogWire.com. You can start reporting for Watchdog Wire – Maryland by signing up here!
