March 14, 2021
By: Andrew Schotz and Luciana Perez Uribe Guinassi
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 10 out of 31 entities. That included two that didn’t reply at all, even to acknowledge receiving the request.
In addition to those 10 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, 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.
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 the 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 30th 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.
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.
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 towns, city and county governments in Maryland.
This year’s Sunshine Week project was led by Andrew Schotz, the 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
- Mike Lewis of Herald-Mail Media
- Students in Adrianne Flynn’s public affairs reporting class at the Philip Merrill College of Journalism: 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.
ASKING ABOUT RECORDS: CASELOADS, RESPONSES
The Maryland-Delaware-DC Press Association surveyed 31 state agencies, counties, municipalities and school systems in February about Maryland Public Information Act requests they received the last three years. The study was meant to examine what effects the COVID-19 pandemic might have had on request caseloads and their response times for sharing public records.
Our first question was whether the entities changed their policies or practices during the pandemic, as many employees worked remotely.
None of the respondents said they made any official changes other than the leeway granted to them in an executive order by Gov. Larry Hogan, who suspended all government legal deadlines until the 30th day after Maryland’s state of emergency ends.
In the second part of the inquiry, MDDC asked each government agency:
- How many PIA requests it received
- Average response time for filling or denying the requests
- Longest response time for filling or denying the requests
We asked for information covering March 5, 2020, when Maryland reported its first three cases of COVID-19, to Feb. 1, 2021. To compare, we also asked for information from that same period for 2018-19 and 2019-20.
Our request to each government entity was made under the Public Information Act.
Just five of those 31 government entities directly and fully provided an answer for three years of average response times — the fundamental underlying question in the MDDC study — making it impossible to assess any meaningful trends.
A sixth entity provided data in a form that allowed us to easily calculate the average response times, so that was counted as meeting our request.
In many cases, though, because the answers we sought were not contained in an existing document, the government body denied the request.
All summaries listed here about the government bodies’ responses to our inquiries are based on a 30-day cutoff after the request was made — the PIA deadline they would have had to follow if there were no executive order. If an entity provided no information by that time, it was counted as not meeting the request, regardless of whether it acknowledged the request.
The following are summaries of the response we received from each government entity included in the MDDC study:
Counties, cities, towns
- Anne Arundel County – No response to request through online form
- Baltimore City – Replied that it had no records related to the request
- Baltimore County – Replied that response might take longer than 10 days, then did not follow up
- Caroline County – Provided all information
Number of requests:
44 in 2018-19
38 in 2019-20
20 in 2020-21
4 days in 2018-19
8 days in 2019-20
6 days in 2020-21
28 days in 2018-19
11 days in 2019-20
9 days in 2020-21
- Cecil County – Provided some information
Number of requests:
63 in 2020-21
6 days in 2020-21
18 days in 2020-21
Said it had no documents related to the two earlier time periods.
- Frederick City – Provided some information, but said it was probably incomplete
Number of requests:
35 in 2018-19
244 in 2019-20
90 in 2020-21
However, the city said the 2018-19 figure “seems incorrect.” The city’s legal department took over tracking on Sept. 1, 2019, after a public information officer position was eliminated. No records are available from before that transition.
The city does not track average or longest response time.
- Garrett County – Provided most information, but did not do calculations
Initially, provided records by calendar years, instead of by time periods we requested. Later reworked charts to closely match time periods (all of March was listed, which was not what we requested), but did not calculate averages. However, it was possible for us to calculate rough averages based on the data we received.
Number of requests:
15 in 2018-19
18 in 2019-20
35 in 2020-21
8 days in 2018-19
7 days in 2019-20
5 days in 2020-21
Longest response: 28 days in each time period
- City of Hagerstown — Initially said it would try to gather information, then declined
The first response was that the city would try to gather information, but would likely charge a fee. The response said the city “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.” It will take even more time because our request periods cross calendar years.
Several days later, the city sent another message saying it had no documents that meet the request.
- Howard County — Provided spreadsheets it uses to track requests, but did not do calculations
It provided spreadsheets for calendar years 2018, 2019, 2020 and 2021, with detailed records listing: each requestor’s name, organization, date request received, when response acknowledging receipt was sent, record requested, the county employee contacted for help and when, the overall response sent, whether a response was sent within 10 business days, if records were provided, whether there was a fee, what the fee was.
Did not answer the questions on average and longest response, though.
Number of requests:
493 in 2018-19
631 in 2019-20
630 in 2020-21
- Town of La Plata — Said it had no records
- Montgomery County — Acknowledged request, then did not follow up
- Prince George’s County — Acknowledged first request, and acknowledged second question about status of request, then did not follow up
- City of Rockville — Said request will take more than 30 working days to fill
- St. Mary’s County — Provided spreadsheets it uses to track requests, but did not do calculations
It provided spreadsheets for calendar years 2018, 2019, 2020 and 2021, with detailed records listing: date received, when 10 working days deadline would be, department to check for information, summary of request, when response was sent, requestor, requestor’s company.
Did not answer the questions on average and longest response, however.
Number of requests (had to be counted by hand):
110 in 2018-19
112 in 2019-20
134 in 2020-21
- Worcester County — Provided some information
Number of requests:
26 in 2018-19
30 in 2019-20
57 in 2020-21
Average: “… Worcester County strives to respond within 10 days .…”
Longest: A November 2020 request about private wells was “extremely broad” and took more than 40 days. The county’s Department of Environmental Programs worked with the requestor on options.
“These numbers were based on a manual records [search]. We do not compile reports that break down PIA requests into various subcategories.”
- Allegany County Public Schools — Provided nearly complete information
Number of requests:
10 in 2018-19
20 in 2019-20
8 in 2020-21
Average response: 5 days (not broken down by time period, as requested, however)
30 days in 2018-19
15 days in 2019-20
20 days in 2020-21
Noteworthy: School system received our PIA request at 7:57 p.m. on Feb. 2. It provided information at 1:58 p.m. on Feb. 3 — by far, the fastest complete response.
- Calvert County Public Schools — Provided little information; would charge fees to compile more
Number of requests: 77 in 2020-21
To gather the number of requests for the two previous years, the respondent said it would take more than 10 working days to compile and about six hours of labor. Excluding one hour already spent collecting some information, the other five hours would be billed at $50 per hour, or $250 total. After getting a $100 deposit, it would take five days. (The Public Information Act actually requires that there be no charge for the first two hours of labor connected to a request.)
“Our documents for these documents are stored in a paper format thus requiring additional time to retrieve and review.”
Does not track average or longest response.
- Harford County Public Schools — Provided no information; would charge fees to compile
For information on one part of the request, it will take 12 hours of labor by an administrative support coordinator in the Office of General Counsel, at an hourly rate of $35.21, for a total of $422.52, and also will take .5 hours by the general counsel, at a rate of $80.36, for a total of $40.18. The overall total is $462.70. Minus two hours of search time (the PIA says there is no charge for the first two hours) at $57.79, the final total is $347.12.
The same amount — an additional $347.12 — would be charged to get information for other parts of the request. The total cost for all parts, as confirmed in a subsequent email, would be $694.24.
MDDC’s request for a fee waiver because the information is in the public interest — which can be granted under the PIA — was denied. To fill this request, the board has no separate staff, forcing other employees to fill in, according to the district.
Its response letter said: “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. Therefore, the Board should not be required to undertake the actions required to respond to your request without being paid the fee requested.”
- Howard County Public Schools — Provided some information
Sent back a spreadsheet with only two columns labeled and filled out — date received of each request and date each request was completed.
Number of requests:
267 in 2018-19
401 in 2019-20
257 in 2020-21
Did not do calculations or answer questions.
- Montgomery County Public Schools — Said it will take more than two months to provide information
During written correspondence and phone conversations with MDDC, the district did not understand the request and thought MDDC was asking the district to explain every PIA denial it has made for three years, which was not true. The confusion grew when the district contended that MDDC had expanded its original request (we did not) and would not narrow it. Therefore, the district said, the request will take longer than 30 days “[g]iven the operational challenges presented by the COVID-19 pandemic and the constraints on school system resources .…”
A fee estimate was based on four hours for a communications specialist, at a rate of $33.47, for a total of $133.47 [actually, $133.88]. Two additional hours of a communications assistant’s time would be free.
The misunderstanding later was cleared up. The district said it would provide information at no charge — no later than April 6.
- Prince George’s County Public Schools — Provided some information
Number of requests:
209 in 2018-19
174 in 2019-20
120 in 2020-21
Does not track average or longest responses
- Department of Labor — Provided some information
Initial response said: “First, since the records requested may contain specific records or information that the Department must withhold or redact … the entire file has to be reviewed before the Department can produce responsive records.”
Number of requests:
184 in 2018-19
444 in 2019-20
299 in 2020-21
No records showing average or longest response
- Department of Transportation — Provided almost all information
Number of requests (all opened and closed):
1,005 in 2018-19
919 in 2019-20
603 in 2020-21
14 days in 2018-19
13 days in 2019-20
15 days in 2020-21
Does not track longest responses.
Worked with each requestor for the best approach. Waived fees of up to $500. More than two-thirds of PIA requests are processed in less than 10 days with no fee or a minimal fee.
- Department of the Environment — Provided all information
Number of requests (all opened and closed):
3,267 in 2018-19
3,201 in 2019-20
2,674 in 2020-21
16 days in 2018-19
19 days in 2019-20
16 days in 2020-21
598 days in 2018-19 to issue a findings letter
302 days in 2019-20 to issue a findings letter
194 days in 2020-21 to issue a findings letter
- Department of Commerce — Provided some information
Number of requests:
16 in 2018-19
22 in 2019-20
14 in 2020-21
Average response: Most were within 10 business days
Longest response: 30 days (in each time period)
- Department of Health — Said request will take more than 10 working days to fill, then did not follow up
- Department of Housing and Community Development — After asking us to clarify our request, it asked for a two-week extension to provide information by March 19
- Department of Natural Resources — Expected to provide information in the first week of March, but did not
- Department of Planning — Provided all information
Number of requests:
28 in 2018-19
37 in 2019-20
13 in 2020-21
13 business days in 2018-19
13 business days in 2019-20
15 business days in 2020-21
42 business days in 2018-19
28 business days in 2019-20
10 business days in 2020-21
“For the one response that was longer than 30 days, we actively worked with the requestor and were given approval for additional research time.”
- Department of Public Safety and Correctional Services — Provided no information
In its initial response, the department said this was not an actual PIA request and it would not take any further action unless we amended the request, which we did not do. In a subsequent email, the department said information answering our questions about changes in PIA policy or practice “was provided to you on or about October 27, 2020” — which was incorrect, since we filed our request on the evening of Feb. 2, 2021.
- Department of Education — Did not acknowledge request
— Luciana Perez Uribe Guinassi filed the requests with all 31 entities, had follow-up conversations and compiled their responses. Andrew Schotz wrote the summaries.