Public Access Ombudsman Suggests Binding Arbitration to Resolve PIA Disputes

A Daily Record article (2016-05-05) reported that Lisa Kershner, the recently appointed public records ombudsman, has proposed consideration of the use of binding arbitration as a method of resolving disputes between record custodians and requestors under Maryland’s Public Information Act (PIA). In the article, Kershner noted that her current mediation authority is broad but voluntary. From the article:

Maryland Public Access Ombudsman Lisa Kershner (Source: Maximilian Franz / The Daily Record)

“The second tier of [the binding arbitration] process does have enforcement power and it is intended to be used by non-lawyers, free of charge,” Kershner said. “A system like that might be useful in this context.” Kershner said. “I don’t really have that option right now but it is something we can consider later on.”…

Under the law, Kershner has fairly expansive powers to mediate disputes between the public and government agencies but the process is completely voluntary. Kershner acknowledges that the limitation on enforcement or what she jokingly referred to as “public flogging” or shaming is both a strength — it could encourage agencies to come to the negotiation table — and a weakness because any agreement reached still relies on the good-faith efforts of both parties after an agreement is reached. …

Kershner acknowledged her lack of enforcement authority but expressed optimism, noting that the General Assembly is taking the issue of public access to government records seriously and has made changes to the law in each of the last two years.

“The teeth issue is a bigger picture issue that really transcends any specific area of concern under the (Maryland Public Information Act),” Kershner said. “I would want you to look at what we have now as an experiment. It is an experiment that has resulted from the legislative process … I have a feeling it is not the last time they will look at this.”

The position of Public Access Ombudsman was created by 2015 legislation (HB 755/SB 695) that significantly altered PIA law. Kershner can be contacted at:

Phone: (410) 576-7037
E-mail: lkershner@oag.state.md.us
Web: www.oag.state.md.us/opengov/pia.htm

Useful Links

HB 755/SB 695 of 2015

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