Maryland public records board needs more teeth

Many reports done by agencies in the executive branch of state government at the request of the Maryland General Assembly are perfunctory and of limited value. That is not the case with the preliminary report on the Maryland Public Information Act (PIA) by the Public Access Ombudsman and Public Information Act Compliance Board. Their report, issued Nov. 6th, is thorough and thoughtful, detailing shortcomings by state and local government agencies in complying with the PIA.

The report makes two excellent recommendations that should be enacted into law at the upcoming session of the General Assembly. The first is authorizing the compliance board to issue binding decisions on PIA disputes that are not resolved after mediation or attempted mediation with the ombudsman.

That would give persons seeking public records a much quicker and far less expensive remedy than filing lawsuits when requests are denied by records custodians. Under current law a requester may ask for mediation of a dispute but has no recourse to compel compliance with the PIA other than going to court.

The ombudsman and board observed that many routine PIA disputes involve simple fact patterns and the application of a limited body of law not requiring complex judicial proceedings to resolve. They also believed that over time the board’s decisions would lead to a body of published opinions serving as guidance to both requesters and agencies that could reduce the number of disputes.

Based on my experience inside and outside of government, I am confident that implementation of this recommendation by the General Assembly would go a long way toward combating an unfortunate tendency by some state and local agencies to slow-walk and even deny appropriate requests for records. Delay or denial too often is used to protect agencies from public scrutiny. Agencies, backed by taxpayer-funded attorneys, are well aware that the expense of lawsuits can deter even established news organizations from pursuing access to records through the courts.

The second recommendation is that state and local agencies be required to adopt a uniform self-tracking and reporting system to monitor the timeliness of their compliance with the PIA. About 20% of the mediation caseload involves long overdue or missing responses. Based on that experience and on survey data from state and local agencies, the ombudsman and board concluded that many agencies are not adequately tracking PIA requests, leading to tardy responses and other compliance issues.

It may be that sanctions ultimately will have to be added to the law to get some agencies to respond to requests in a timely manner. It makes eminent sense, however, to first gather reliable data on the scope of the problem. Also, the prospect of having to record and disclose their non-compliance alone is likely to induce agencies to improve their performance — a prediction based on the beneficent effect of sunshine illuminating the internal workings of government and a principle at the core of the PIA.

It is important to keep in mind that access to public records is a means to an end, not an end in itself. The goal of the PIA is not simply to satisfy someone’s idle curiosity; it is to enable citizens to gather the information necessary to hold government agencies accountable.

It’s a simple proposition: Without a properly functioning PIA, there is no public accountability. And the absence of public accountability is an invitation to mediocrity and corruption in government.

There is more good news: The compliance board projects that if given the authority to issue binding decisions on PIA disputes it can handle the increased workload by adding only two employees. That is an incredible bargain when considering the savings in time and money not only to citizens and the members of the news media but also to government agencies from a streamlined mechanism for resolving PIA disputes.

On one more positive note, it is gratifying to see the interests of the general public taken so seriously by the ombudsman and the PIA compliance board. Suffice it to say that not all state and local agencies share their commitment to the goals of open and transparent government.

I trust that the final report issued by the ombudsman and compliance board will include the two recommendations described above. If it does, I urge the General Assembly to implement them as quickly as possible.

[Published as an op ed by the Baltimore Sun on November 13, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

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