March 20, 2021

By: Andrew Schotz and Luciana Perez Uribe Guianassi

Read the full article here. 

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.

The Maryland-Delaware-DC Press Association in February 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 records requests they received over a three-year period and what effect the COVID-19 pandemic had, if any, on their responses.

Asked for their average response time each year in filling or denying Maryland Public Information Act requests — and whether it changed during the pandemic — only about one-fifth of the 31 government entities that MDDC surveyed provided a full answer, or data to easily figure out the answer.

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.

Responses demonstrated a range of government entities’ speed, record-keeping abilities, and willingness to gather data or otherwise look for answers.

Allegany County Public Schools 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 information.

The results of the MDDC study conducted in February and March 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.

Other entities provided bits and pieces. Some 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.

Wes Decker with the city of Hagerstown 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.

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, including Montgomery County and Montgomery County Public Schools. The nine 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. (Actually, 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 said.

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.

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 report said, “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.”

That type of documenting and tracking of PIA requests was a key element in two companion bills pending in the General Assembly. However, in early March, the record-keeping requirement in the bill was stricken as the bill ran into resistance.

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 who is 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, said Lierman, a graduate of Walt Whitman High School in Bethesda.

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.

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 reporting provision and a few other components were pulled out this month to ease the concerns of opponents.

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.

“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 now 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.

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.

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 30^th day after Maryland’s state of emergency ends.

Many state and local government entities 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.

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 Feb. 2, it replied with full answers to all of the questions at 1:58 p.m. on Feb. 3.

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, the acting solicitor for Baltimore City. “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.

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Note: 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.