MACo Legal and Policy Counsel Les Knapp testified in opposition to SB 167 before the Senate Judicial Proceedings Committee on January 25, 2018. The bill, sponsored by Senator Brian Feldman, would prohibit a governmental unit from filing suit against a person who has requested to inspect a record under the Maryland Public Information Act (PIA).

In his testimony, Feldman cited instances in other states where record custodians preemptively sued a PIA records requestor upon receiving a request. Political blogger Ryan Miner also testified in support of the bill.

Knapp argued in his testimony that the bill was unnecessary and caused several additional consequences to existing PIA law. From MACo’s testimony:

To the best of MACo’s knowledge, no state agency, county, or municipality has ever filed a suit in Maryland against a records requestor as an immediate response to a PIA request. Such an action is simply not contemplated by county record custodians.

The Office of the Attorney General recently released a comprehensive report on the PIA after a thorough 2-year process that included surveying both record requestors and custodians and allowing public comment. Despite comprehensively reviewing requestor and custodian interactions, the issue of preemptive lawsuits against requestors was never raised. See Final Report of the Office of the Attorney General on the Implementation of the Public Information Act (December 2017). The issue does not exist in Maryland and if it ever did become an issue, MACo would work with all involved stakeholders to remedy the situation.

The bill’s language would also create several additional consequences for the PIA. Maryland’s PIA law is designed to ensure the release of records that are in the public interest without unduly burdening a records requestor. There are numerous mechanisms in place to ensure this result, including: a Public Access Ombudsman, the Public Information Act Compliance Board, administrative appeals, and finally the courts. However, these mechanisms are also designed to protect custodians from abusive or bad faith requests and allow them to keep certain information confidential where required by law.

There are occasionally situations where a custodian needs to bring suit to resolve a request that may involve confidential information where the custodian would be legally liable if the information was to be released or to determine whether a request is abusive in nature (such as where a requestor makes numerous small records requests instead of one large request to try to avoid paying reasonable research costs). SB 167 removes this needed balance.

The bill’s vague language may also override existing PIA law that allows a custodian to temporarily deny access to records while seeking a court determination to determine if the release of the record would cause substantial injury to the public interest. Finally, a clever plaintiff could take advantage of the bill’s language to potentially stave off a lawsuit by a government by filing a PIA request for the relevant information and then claiming that any subsequent government lawsuit is based on the PIA request, rather than the truly central matter.

Committee Chair Robert (Bobby) Zirkin noted that the Office of the Attorney General had submitted a letter of concern that raised many of the same issues cited in the MACo testimony.

The cross-file of SB 167 is HB 387, which is scheduled for a hearing before the House Health and Government Operations Committee on February 8.