This post summarizes the status of various public information and ethics bills that MACo took a position on for the 2017 Regular Session.
Public Information Act – Police Body Camera Video: As introduced, HB 767 / SB 970 would address when police body camera video would be disclosed under the Maryland Public Information Act (PIA). The bill addresses police accountability, privacy rights of certain crime victims, and protections for governments from abusive record requests. Under the bill:
- A custodian must deny inspection of that part of a recording from a body-worn digital recording device regarding an incident that:
- depicts a victim or information that could identify a victim of: domestic violence, sexual crime, or abuse of a minor or vulnerable adult (excluding adult hazing);
- does not result in the arrest, attempted arrest, temporary detention, attempted temporary detention, search, attempted search, citation, death, or injury of an individual;
- the use of force against an individual; or
- a complaint or allegation of officer misconduct made against any law enforcement officer involved in the incident.
- A custodian shall deny inspection of records for the incidents listed above regardless of subsequent action taken by law enforcement or a court based on the incident recorded.
- The bill’s provisions may not be construed to affect the discovery or evidentiary rights of a party in civil or criminal litigation.
- A victim who is the subject of a record that is denied inspection under the bill shall be notified of all requests to inspect the record.
- The Maryland Police Training and Standards Commission, in consultation with MACo, Maryland Municipal League, MML, law enforcement agencies, the press, and other stakeholders shall develop uniform standards and procedures regarding the notice.
- Subject to the exceptions under the PIA law, a custodian shall allow inspection of a body camera video by an individual who is a subject in the recording and directly involved in the incident that prompted the recording or:
- if the individual is a minor, the individual’s parent or legal guardian;
- if the individual is deceased or unable to request the recording due to injury, the individual’s parent, legal guardian, spouse, adult child, next of kin, or a representative of the individual’s estate; or
- if the individual is an incapacitated person, the individual’s guardian or agent.
- A custodian may not allow copying of a recording from a body-worn digital recording device by an individual who is allowed to inspect the recording under the bill’s provisions but is under investigation for, charged with, received probation before judgment for, is subject to a peace or protective order as a result of, pleaded nolo contender to, pleaded guilty to, or has been found guilty of a violation that the bill requires denial of general public release, if the recording is of the incident leading to the investigation, probation before judgment, order, charge, plea, or verdict.
- A custodian shall allow inspection of body camera video if it is not otherwise prohibited under the PIA.
MACo Position: MACo supported the bill as it would provide clarity to local governments, law enforcement, crime victims, and citizens on how the PIA handles body camera video. Based on stakeholder feedback at the bill hearing, MACo prepared several additional amendments that:
- clarified the bill did not apply to public records entered into evidence in a court proceeding;
- prohibited release of video that depicted the death of a law enforcement officer that occurred in the performance of the officer’s duties;
- clarified that the victim notice requirement applies to all qualifying victims regardless of whether the record request was denied or granted; and
- deleted as superfluous the provision requiring a custodian to allow inspection of body camera video if it is not otherwise prohibited under the PIA.
FINAL STATUS: The House passed HB 767 with the MACo amendments. The Senate Judicial Proceedings Committee gave an unfavorable report to HB 767 and SB 970.
Open Meetings Act – Training and Reporting: As introduced HB 880 / SB 450 would require every member of a public body to take a training course on the Maryland Open Meetings Act or else submit a letter to the Open Meetings Compliance Board (OMCB) stating that the member is unable or unwilling to complete the class. (Currently, each public body must designate at least one individual who is an employee, officer, or member of the public body to take the class.)
MACo Position: MACo supported the bill with amendments that would require at least one voting member of a public body to take the training course. If no voting member who has taken the training course is present when a meeting is proposed to be closed, the public body must complete and include in their minutes a meetings closing checklist developed by the OMCB. MACo opposed having every member take the training and the letter requirement, noting the wide range of sizes of public bodies and the challenges that small volunteer bodies are having in attracting participants.
FINAL STATUS: The General Assembly passed HB 880 and SB 450 with the MACo amendments and several other amendments acceptable to MACo. As amended, the bill:
- Prohibits a public body from meeting in a closed session after October 1, 2017, unless the public body has designated at least one member to receive Open Meetings Act training. If no designated member is present at a meeting, the public body must complete the “Compliance Checklist for Meetings Subject to the Maryland Open Meetings Act” developed by OMCB and include the completed checklist in its minutes
- Expands allowable courses on the Open Meetings Act to include a class offered by the Maryland Association of Boards of Education through the Boardsmanship Academy Program
- Requires the OMCB to distribute educational materials on the requirements of the Open Meetings Act to specified parties
- Requires OMCB in its annual report to identify: (1) the provisions of the Act that have been violated; (2) the number of times each provision has been violated; and (3) each public body that was found to have violated a provision of the Act
- Requires OMCB to post on the Open Meetings Act webpage the name of each public body found to have violated the Act and the opinion that describes the violation
- Requires OMCB, the University of Maryland’s Institute for Governmental Service and Research, and the Academy for Excellence in Local Governance to complete a report by December 1, 2017, on: (1) the costs and benefits of tracking the specific names of individuals who complete a Open Meetings Act training course; and (2) the development of a list of local government public body contacts where OMCB may send educational materials on the Act
Maryland State Archives – State and Local Government Records Management: As introduced SB 44 requires each unit of State and local government to have a records management program in place, including for electronic records. The program must include procedures for: (1) security, retention and disposal schedules, maintenance of inventories of record series; and (2) the transfer of permanent records to the Archives. Each unit must also designate a records officer to oversee the program and serve as liaison to the Archives and the Records Management Division of the Department of General Services (DGS). The records officer must notify the Archives of records that are no longer needed for the transaction of business and shall transfer to the custody of the Archives records (including electronic records) deemed by the Archives as permanent. Records accepted for transfer to the Archives shall be accompanied by the records inventory
MACo Position: MACo opposed the introduced bill, noting that as drafted the bill would impose potentially significant implementation and technical issues regarding the capture, retention, organizing, and transmission of electronic data. The bill also brought local governments into a section of records law exclusively applied to the State, with many unintended consequences. The bill also unintentionally altered some of the requirements already applied to local governments through regulations. After discussions with the Archives, MACo and other stakeholders worked on amendments that addressed MACo’s concerns and MACo dropped its opposition to the bill.
FINAL STATUS: The General Assembly passed SB 44 with the MACo amendments and several additional technical changes. As amended, the bill requires each unit of State government must have a records program that includes procedures for: (1) the establishment of record retention and disposal schedules, including for electronic records; (2) the maintenance of accurate and complete record series; and (3) the transfer of permanent records to the custody of the Archives. Each unit of State government must also designate a records officer for the unit to serve as a liaison to the Archives and DGS. The bill also clarifies what is considered a “record” and a “records inventory.”