March 5, 2021
By: Lisa Kershner
Read the full article here.
Maryland’s public access ombudsman and the chair of the Public Information Act Compliance Board say they need greater enforcement powers to make state and local government more transparent to its citizens.
By Lisa Kershner and John “Butch” West
Right now, transparency in government is critically important. In some areas, peoples’ trust and faith in the ability of government to act in their best interests and to protect their health and welfare has diminished. If properly functioning and fairly enforced, Maryland’s Public Information Act (PIA) can do much to restore that trust and faith.
In Maryland, the PIA promotes government transparency by affording citizens’ a broad right of access to records of state and local government agencies “with the least cost and delay.” Though the right to access records is subject to certain exceptions for confidentiality, privacy and privilege, the core of the PIA is a belief in the right of citizens to know what their government is up to.
In 2015, the General Assembly made efforts to ensure that the PIA is functioning properly and living up to its central promise of timely and cost-effective governmental transparency. At the time, when disputes about access to public records arose, an aggrieved party could go to court or, in some circumstances involving select state agencies, had the option of pursuing administrative review through the Office of Administrative Hearings.
Neither option was particularly accessible or practical for parties without the time and money that litigation requires. So, the General Assembly created two independent, extra-judicial options for resolving PIA disputes.
The first is the Office of the Public Access Ombudsman. The Ombudsman makes efforts to resolve all sorts of PIA disputes, but can do so only on a voluntary and non-binding basis.
The second option is the PIA Compliance Board, an all-volunteer board of five members representing a diversity of interests and knowledge areas. While the 2015 legislation originally envisioned that the Compliance Board would have broad authority to consider the same variety of PIA disputes that the ombudsman does, it ultimately limited that authority to reviewing and deciding only disputes over fees greater than $350 charged under the PIA. At the same time the Legislature eliminated the authority of “OAH” to decide certain PIA disputes. Thus, although it almost certainly did not intend to, the General Assembly actually cut back options for enforceable review of PIA disputes.
Not as efficient or effective as it should be
Now, after nearly five years of operation, it is clear that neither the ombudsman program nor the PIA Compliance Board is working as efficiently or effectively as it could. While the ombudsman has broad jurisdiction to mediate all kinds of PIA disputes—from total failures to respond to requests and denials of access to records, to unreasonably broad and repetitive requests—the ombudsman also lacks any enforcement authority. Many cases leave the mediation process unresolved and without any other practical, accessible avenues to pursue relief.
At the same time, the PIA Compliance Board does have enforcement authority, but only within its extremely narrow fee-related jurisdiction. The net result of these extra-judicial dispute options working in concert as currently structured is that there are many PIA disputes that never get resolved, unless the parties have the time and financial resources necessary to file a lawsuit in court.
The 2015 legislation required, among other things, that the Compliance Board issue an annual report that includes any recommendations for legislative changes. In 2019, the chairs of the Senate Budget and Taxation and House Appropriations Committees requested that the Compliance Board and ombudsman collect certain PIA-related data from 23 State cabinet-level agencies, and to make recommendations related to PIA compliance and enforcement.
The result was a joint report, published in December 2019, that carefully examined the PIA landscape and revealed the problems detailed above. The report concluded that the best solution would be to expand the jurisdiction of the Compliance Board so that it could review and decide the variety of PIA disputes that cannot be resolved through mediation with the ombudsman.
An analysis of the Ombudsman’s caseload suggests that the Compliance Board could expect to receive approximately 50 to 60 additional matters each year. About half of these matters would involve an agency’s denial or partial denial of a PIA request. The 2019 report also revealed that agencies at times need relief when confronted with unduly burdensome or repetitive requests, and mediation is not fruitful. Thus the board should be authorized to review and provide relief for these sorts of disputes as well. Regardless of the dispute, the board’s decision would always be subject to judicial review, just as it is now.
House Bill 183, by Del. Brooke Lierman, cross-filed as Senate Bill 449 by Sen. Cheryl Kagan implements these recommendations. The bill builds on the two existing extra-judicial PIA dispute resolution programs to provide an efficient and user-friendly enforcement mechanism. It enhances the ombudsman’s program by giving parties an incentive—avoiding Compliance Board review—to meaningfully engage with the mediation process, while also enabling review for those disputes that, after an earnest attempt at mediation, are in real need of a binding decision.
Put simply, the legislation creates more equitable access and serves the PIA’s overarching goals of transparency and good government. The ombudsman and members of the PIA Compliance Board unanimously support HB 183 / SB 449, and thank all of the bills’ sponsors and stakeholders who are working together to help Maryland fulfill the promise of the PIA.
Lisa Kershner is the public access ombudsman for Maryland state government and John West is the chair of the Public Information Act Compliance Board.