MACo & MML Submit Joint Comments on Public Information Act Concerns

MACo and the Maryland Municipal League (MML) submitted an extensive joint comment letter (2017-09-15) in response to a series of preliminary findings and potential recommendations found in an interim report on the Maryland Public Information Act (PIA) by the Office of the Attorney General (OAG). The interim report summarized the results of a PIA survey of both record custodians and requestors and offered possible recommendations on: (1) the scope and enforcement authority of the PIA Compliance Board; (2) merging the PIA Compliance Board with the Open Meetings Compliance Board; (3) altering the role of the Public Access Ombudsman; (4) adding further statutory requirements for indigency and fee waiver decisions; (5) requiring third-party governmental contractor records to be disclosable under the PIA; (6) limiting or prohibiting PIA requests for purely commercial purposes; (7) modifying various other aspects of the PIA.

The interim report and a final report due in December of 2017 are required by the sweeping PIA reform legislation passed in 2015 (HB 755/SB 695). Several highlights from the MACo/MML comment letter:

Preliminary Findings

1. The PIA Compliance Board should retain its formal neutrality and the functions of both the Board and Public Access Ombudsman should not be altered.

MACo and MML support the preliminary finding that the PIA Compliance Board should remain formally neutral and that it is too early in the Board’s existence to alter the Board’s jurisdiction or statutory responsibilities. From a local government perspective, the Board must meet two criteria in order to be viewed as credible: (1) the Board maintains an overall neutral position between custodians and requesters; and (2) the Board’s preemptive authority rests within a narrow and well-defined jurisdiction that addresses significant PIA issues. To date, we believe the Board has achieved these goals and further changes would only risk upsetting the Board’s positive perception and ability to function.

MACo and MML also support the role of the Public Access Ombudsman (currently Lisa Kershner) in mediating PIA disputes between custodians and requesters. When there are differences between a custodian and a requester over a PIA issue, a neutral party such as the Ombudsman can help mediate a solution. However, if the Ombudsman is given binding authority, the perception of the Ombudsman shifts from that of an assisting mediator to that of a regulator or judge and the position loses effectiveness in reaching solutions. Instead, the Ombudsman simply becomes the first stop in the litigation process and as such must provide full due process protections. We believe the Ombudsman position is most effective if left in its current form. …

4. Agencies should be provided a level of funding sufficient to centralize responsibility for PIA compliance in one or more employees whose job performance would be evaluated principally on that basis.

MACo and MML support local government compliance with the PIA but are concerned this recommendation fails to account for the dramatic differences in size, capability, and resources of local governments. Such a recommendation would be difficult or impossible for small counties and municipalities to implement. Some smaller counties can only afford to hire a single county attorney to cover every single legal issue the county faces. Many local governments do not even have in-house counsel and use outside counsel as needed. The personnel issue is even more acute for small municipalities whose entire paid staff may encompass one or two people.

Likewise, larger counties and municipalities may have data spread across a wide number of departments and the sheer number of PIA requests may limit the ability to channel those requests through a single or even several employees. Moreover, in a larger jurisdiction, a centralized record custodian may result in another level of separation between the attorneys that respond to requests and the actual government employee that knows where responsive documents are located and has the specialized knowledge about the content of the record that informs the basis for evaluating if an exemption applies.

Local differences are further exacerbated by the fact that different local government types require different organizational structures. In short, local governments are not uniform and funding or organizational mandates regarding PIA requests would be impractical and likely inequitable.

Potential Recommendations

1. Whether the PIA Compliance Board’s jurisdiction should be expanded by lowering the threshold for complaints from $350 to $250 and by giving it jurisdiction over complaints about agency fee waiver decisions.

MACo and MML strongly oppose lowering the PIA Compliance Board’s “unreasonable” fee complaint threshold from $350 to $250 and giving the Board jurisdiction over fee waiver decisions. The complaint threshold was subject to significant debate during the passage of Chapter 135 of 2015 (HB 755/SB 695), which substantially overhauled and revised the PIA. Altering the threshold would upset the policy balance that the legislation established between local autonomy and potential preemption by the Board.

Chapter 135 added greater specificity in how local governments must calculate their fees, minimizing the risk of a fee being “unreasonable” for information requests under $350. The current $350 threshold captures the larger and more complex information requests where there is greater likelihood to be a difference of opinion between the custodian and the requester as to the time, resources, and costs needed to address the request.

Regarding fee waiver decisions, we share the Interim Report’s concerns that the Ombudsman has been successful in mediating fee waiver denials and moving that responsibility to the Board itself would significantly increase the Board’s workload. Such an action would create an unnecessary local government preemption.

5. Whether the PIA should be amended to make the records of all third-party government contractors subject to the Act.

MACo and MML agree with the concerns raised by the Interim Report and do not believe “one size fits all” legislation can adequately address this issue. As the Interim Report correctly states, there are existing mechanisms for gaining some third-party contractor records under the PIA or other law but that the inquiry is often fact-specific, dependent on the existing contracts and software licenses, and not easily addressed by a “bright line” rule. Requiring all contractors to make more information publicly available may also reduce the pool of companies willing to bid on government work and increase the cost the government is charged for those services. At a minimum, further evaluation of this recommendation is needed before any consideration of its adoption.

MACo and MML also offered three additional potential recommendations in the comment letter relating to (1) personal surveillance cameras; (2) email addresses and cell phone numbers used for subscriptions or notifications; and (3) release of social security numbers and dates of birth:

PIA Reform for Personal Surveillance Cameras

While Chapter 135 addressed many longstanding issues with the PIA, several issues have emerged since the passage of Chapter 135 that MACo and MML believe require addressing. Foremost among these is the release of video footage from personal surveillance cameras, which can include body cameras used by first responders or other local government officials and cameras on drones or mobile robots that follow such individuals. MACo has previously developed criteria for when such footage should be released under the PIA in a manner that: (1) maintains local government accountability; (2) protects the privacy rights of vulnerable populations; and (3) addresses local government fiscal and technological concerns. Such a policy is needed to encourage further adoption of these technologies as well as balance valid transparency and privacy interests.

PIA Reform for Email Addresses and Cell Phone Numbers Used For Subscriptions or Notifications

Additionally, there have been recent concerns about PIA requests for email addresses or cell phone numbers of individuals who have signed up to passively receive news, updates, or notifications from a local government. Requests for these email addresses have been driven by commercial or political considerations and could subject individuals, including children and the elderly, to unwanted solicitations and communications, cyber security attacks, and identity theft risks. Allowing PIA disclosure of these email addresses or cell phone numbers serves no useful governmental purpose and could ultimately discourage individuals from subscribing to local government news, notification services, or emergency alerts for fear of being subject to identity theft or cyber security attacks or “spamming.”

PIA Reform for the Release of Social Security Numbers and Dates of Birth

Identity theft has become a major problem globally and two key pieces of data that allow the crime to take place include a person’s social security number and date of birth. Yet both of these pieces of data can be accessed through a PIA request. Providing such information to someone who is not a person of interest serves no public interest or transparency purpose and should be prohibited in light of the significant criminal and financial risks disclosing the information could pose.

Useful Links

Interim Report of the OAG on the Implementation of the PIA (2016-12)

HB 755/ SB 695 of 2015

OAG PIA Webpage