Record disclosure by state and local government is generally poor, survey shows
MDDC’s “Sunshine Week” project was hampered by poor responsiveness – only about one-fifth of the 31 Maryland government entities surveyed provided a full or adequate answer
Above: Without transparency, there is no democracy. (observatoriorsc.org)
A one-month test of government agencies in Maryland revealed a patchwork of approaches in how public records are tracked and how requests for access are filled.
It produced ironies, too.
Requests for information about the process – driven by concern that state and local officials too often ignore and slow-walk media inquiries – were frequently ignored and slow-walked.
The Maryland-Delaware-DC Press Association (MDDC) last month filed requests for public information with 31 state agencies, counties, municipalities and school systems.
The idea was to look at trends in the number of public requests they received over a three-year period and what impact the Covid-19 pandemic had, if any, on their responses.
Asked for their average response time in filling or denying Maryland Public Information Act (PIA) requests – and whether it changed during the pandemic – only about one-fifth of the 31 government entities surveyed provided a full answer or supplied data to easily figure out the answer. (Their responses were judged against the PIA’s 30-day deadline.)
Many said they don’t track that information and that, by law, if a specific answer is not in an existing document, they are not required to provide an answer or create a document.
The responses demonstrated a wide range of record-keeping abilities, speed and willingness to gather data by government entities.
Allegany County Public Schools, for example, sent back nearly complete answers to MDDC’s questions within 24 hours.
By contrast, Harford County Public Schools said it would charge a nearly $700 fee to find and provide the same information.
And Baltimore City replied that it “had no records related to the request.”
The results of the MDDC study align in many ways with findings of a state survey done in 2018 and 2019 at the direction of the Maryland General Assembly (see page 24). One conclusion at that time was that “much of the reporting agencies’ quantitative data is incomplete.”
Maryland’s public access ombudsman, who mediates records disputes, and its Public Information Act Compliance Board, which rules on a limited number of disputes, conducted the survey.
That 15-month review of PIA records of 23 state agencies showed wide variations, based on scattered record-keeping:
• Some agencies reported that they got thousands of PIA requests; others said they received none.
• Several agencies said they hit the 30-day PIA response deadline 100% of the time. One said its rate was 43%. Nearly half of the agencies had no idea.
• Seven agencies couldn’t figure out how often they charged fees.
In the 2021 MDDC survey, done to coincide with Sunshine Week, an annual nationwide celebration of the importance of public information, only five of the 31 agencies could provide data on three years of response times. A sixth entity provided enough information for MDDC to easily calculate the answers.
Some entities provided bits and pieces. Others said it would take hours of research time, for which they would have to charge.
A few said their efforts to provide numbers would be hampered by the need to go through paper records.
Some entities provided bits and pieces. Others said it would take hours of costly research time.
Hagerstown’s communications director, Wes Decker, wrote in his initial response that he “will have to review every single PIA request the City of Hagerstown has handled from March 5, 2018 to February 1, 2021 in order to produce the answers you’re seeking.”
He later changed course and wrote that no records existed matching the request.
High Fees and Ghosting
Many jurisdictions and agencies said they’d need more time beyond the usual statutory deadlines to process the MDDC request, then didn’t respond further within 30 days.
At the 30-day mark, MDDC was still waiting on a final response from nine out of 31 entities. That included two that didn’t reply at all, even to acknowledge receiving the request.
In addition to those nine cases, MDDC declined to pay hundreds of dollars in fees that two school districts were charging.
Calvert County Public Schools provided one number in its initial response – 77, the number of PIA requests it received for the 2020-21 period.
To gather the rest of the data would take more than 10 working days, its response said, predicting six hours of labor.
Beyond the one hour already spent, the district would charge $50 per hour for five more hours, for a total of $250. (The Public Information Act requires that there be no charge for the first two hours of labor connected to a records request.)
“Our documents for these documents are stored in a paper format thus requiring additional time to retrieve and review,” the school district’s response letter explained.
A few entities responded to the MDDC inquiry by sending back spreadsheets documenting every request the jurisdiction had logged, but did not calculate the answers for average or longest responses.
“Agencies are not keeping data in any uniform or structural fashion” – Lisa Kershner, Maryland’s public access ombudsman.
The results of the MDDC survey provided little evidence about what effect the pandemic is having on records requests and responses. But the exercise shined a spotlight on uneven tracking and use of technology and, in several cases, unwillingness to provide answers if that can be justified by the letter of the law.
Maryland’s public access ombudsman, Lisa Kershner, said in an interview that the range of the responses and the gaps in answers in the 2018-19 state survey and report showed a hodgepodge of approaches for PIA record-keeping and tracking.
“Agencies are not keeping data in any uniform or structural fashion,” she said.
The 2018-19 report included recommendations for improvement, starting with consistency.
“We recommend that in order to obtain uniform, consistent and reliable information on PIA caseloads and dispositions, the legislature should specify the data agencies must track and report, and require agencies to publish this data periodically on their websites to the extent feasible,” the report said.
That type of documenting and tracking of PIA requests was a key element in two companion bills pending in the General Assembly.
HB 183 in the House, sponsored by Del. Brooke Lierman of Baltimore City, and SB 449 in the Senate, sponsored by Sen. Cheryl Kagan of Montgomery County, propose several enhancements of the public records system. (Listen to Lierman, Kagan, Kershner and others discuss the legislation on an MDDC Five Dubs podcast.)
The legislation would grant additional authority to the state’s PIA Compliance Board, giving it new review duties after other attempts to obtain public records fail.
Someone turned down for public records by a government entity could first go to the ombudsman for help, then to the PIA Compliance Board for a ruling, before having to go to Circuit Court, which is beyond some people’s means, Lierman said.
Also under the bill, government agencies must try to “proactively disclose information,” such as reports they already prepare, rather than wait for each time the public requests it.
University of Maryland Complains
As drafted, the legislation would have required all state and local government entities to keep data on requests they receive, outcomes, deadlines hit or missed, fees and fee waivers.
But that the record-keeping requirement was stricken as the bill ran into resistance.
Several state occupation boards and schools in the University System of Maryland testified against an early draft of the bill in February, saying it would be an extra burden for work and expenses.
The University of Maryland at College Park estimated that meeting the bill’s “strenuous demands” would cost at least $775,000.
The PIA reform bill was watered down in Annapolis after it ran into resistance from the University System of Maryland and others.
“While I hope in the future we can pass legislation to require more standardized reporting on PIA requests from different agencies,” Lierman said in a voice-mail message, “I am happy that this bill is still moving forward, so that we can enforce the PIA in a more equitable manner.”
In an interview earlier in the legislative process, Lierman said that when reporters told her about problems with PIA response times, she decided to examine the issue and work on improvements. She and Sen. Bill Ferguson, a Baltimore City Democrat who is president of the Senate, jointly requested the PIA study and it was incorporated into budget language.
Lierman praised the ensuing study’s thoroughness, but was frustrated by how unreliable governments were in their grasp of open records practices, tracking and responsiveness, creating barriers for the public.
“I feel strongly that public information needs to be publicly available,” she said.
Break due to Covid
This is Lierman’s second attempt to improve the Public Information Act through reporting requirements for government bodies.
Even if the legislation had passed with the record-keeping requirement, the change would have standardized and improved only future records, not past efforts. “It will be a very difficult chore to go back and retrieve that data and compile it,” Kershner said.
Gov. Hogan gave state agencies and local governments a break on PIA deadlines until 30 days after the state of emergency ends.
She noted that government agencies still can keep thorough records if they choose. “No legislation is needed for agencies to improve their tracking,” she said.
Maryland’s Public Information Act requires an agency to respond to requests for public records within 30 days and to give notice if the response will take more than 10 business days.
But Gov. Larry Hogan helped state agencies and local government bodies by giving them a break on deadlines. In a March 12, 2020, executive order, Hogan allowed any unit of state or legal government to suspend “any legal or procedural deadline” – not just for public records requests – until the 30th day after Maryland’s state of emergency ends.
Many state and local government entities have cited that order in their responses to the MDDC requests, saying they can, and expect to, go beyond the 10-day or 30-day deadlines.
Some Respond Quickly
The six government agencies that provided complete information to MDDC (or enough data to calculate the answers) on average response times for three years were:
• Caroline County
• Garrett County
• Allegany County Public Schools
• Maryland Department of Transportation
• Maryland Department of the Environment
• Maryland Department of Planning
Allegany County Public Schools excelled in speed, too.
After receiving MDDC’s request at 7:57 p.m. on February 2, it replied with full answers to all of the questions at 1:58 p.m. on February 3.
A Huffy Response
However, many agencies took more than 10 days just to acknowledge the request.
Harford County Public Schools denied MDDC’s request to waive the nearly $700 fee on the grounds that the information was in the public interest, as the PIA allows. The district said it has no separate staff to fill PIA requests and cited its existing responsibility to students.
“The Board also is charged, by law, with providing educational services to and protection of over 38,000 students, which endeavors are in the public interest,” the district’s response letter says.
Some local and state agencies denied MDDC’s request entirely, saying there were no existing documents with those specific answers, and the PIA doesn’t require them to create new documents. A few offered to gather information anyway, but only if MDDC withdrew its PIA request.
One exception at the state level was for the Department of Planning.
David Buck, the director of communications, noted that the department did not consider MDDC’s request to fit under the PIA, but he still provided all of the answers on numbers of requests, average response times and longest response times.
Tim Pratt of the Maryland Department of Transportation’s Office of Public Affairs emailed a detailed response to MDDC’s request for information and an interview.
He provided full answers with data about the department and wrote that it “has a great story to tell” in how it has adapted during the pandemic.
DOT, which averages about 1,000 PIA requests per year, decided to waive fees of up to $500. It averages about 14 days for its PIA responses, he wrote.
Government officials contacted separately for interviews all said PIA responses procedures have remained the same for their entities, aside from operational changes offices had to make because of the pandemic.
“We haven’t been lacking in personnel,” said Jim Shea, Baltimore’s new city solicitor. “From what I can tell, we have responded in ordinary course.”
Some officials said caseloads during the pandemic have also been consistent with past years’, but a few noticed an increase.
“Volume has been pretty consistent throughout the pandemic to what it was before,” said Scott L. Peterson, the director of communications for Howard County Executive Calvin Ball. “The pandemic hasn’t caused easier or more difficult requests. Some are more time-consuming, per usual.”
“Nothing has really been different,” said Neil Murphy, a deputy county attorney in St. Mary’s County. “I haven’t really noticed anything. It’s been pretty routine.”
Daniel D. Curry, the superintendent of Calvert County Public Schools, said his district has seen a higher volume of requests during the pandemic, but has kept up.
In Washington County, the volume of requests seems to have increased slightly, but there has been no change in the type of records requested, said Danielle Weaver, the county’s director of public relations and marketing.
Sunshine Week, which is March 14 to 20 this year, was created by the American Society of News Editors, which is now known as the News Leaders Association.
Past MDDC projects for Sunshine Week include a look at fees for police records, which routinely exceed all other government records fees, and a study of the effectiveness of the municipal websites for all 156 town, city and county governments in Maryland.
This year’s Sunshine Week project was led by Andrew Schotz, managing editor of Bethesda Beat, and Luciana Perez Uribe Guinassi, a graduate student at the University of Maryland’s Philip Merrill College of Journalism.
Contributors for interviews were Dan Belson of Southern Maryland Newspapers, Ana Faguy of Baltimore Sun Media, Emily Opilo of The Baltimore Sun and Mike Lewis of Herald-Mail Media.
Students in Adrianne Flynn’s public affairs reporting class at the Philip Merrill College of Journalism were Katharine Kelley Benzan, Natalie Drum, Brittany N. Gaddy, Ashkan Motamedi, Glory Ngwe, Collin Riviello, Vanessa Sanchez, Jon Patrick White, Molly Work. Christopher Gunty of The Catholic Review assisted with editing.
To read government entities’ responses to MDDC requests for this project, go to tinyurl.com/PIAreview and click on the “Locations” folder.