With the 2021 Legislative Session rapidly approaching, MACo is profiling some major issues that stand to gather attention in the General Assembly’s work. Here, we preview potential action around transparency laws.
Maryland’s Open Meetings Act and Public Information Act outline transparency or “sunshine” requirements for state and local government agencies. The COVID-19 pandemic forced many government actors to change the way they operated while ensuring they provide the public access to their proceedings. Public bodies had to utilize technology to make sure the public could observe remote meetings, and agencies had to develop new protocols for responding to requests for records while staff worked from home.
The applicability of the Open Meetings Act to remote meetings is addressed by the Office of the Attorney General in its guidance document issued earlier this year, and by the Department of Legislative Services in its annual compilation of Issue Papers:
As technology has evolved, so have communication patterns to, from, and among members of public bodies. This includes communication via remote audio or video conferencing, interactive websites (such as discussion boards and forums), email, and text messaging. While the Open Meetings Act (OMA) does not specifically address these types of technology, the Court of Special Appeals has noted that, with these changing technologies, statutory references to members being “present” and “convening” for a meeting “can encompass participation through the use of technology”. Tuzeer v. Yim, LLC, 201 Md. App. 443 (2011).
The use of technology can be employed to enhance accessibility for the public to the activities of a public body, as when posting online meeting notices and agendas or allowing for remote or teleconferencing of meetings. However, facilitating openness may complicate transparency if that technology fails. The Open Meetings Compliance Board (OMCB) has found that technology failure does not excuse the obligation to comply with the OMA. The OMA compliance requirement exists even when the technology failure is not readily apparent at the time of the meeting.
In order to give the public access, many agencies began livestreaming meetings online, televising them on local public access channels, or providing a conference call-in option. While utilizing technology has allowed public bodies to meet remotely, it also raises questions about maintaining transparency. During challenging times such as the COVID-19 crisis, members of public bodies undoubtedly need to communicate more frequently, but should remain aware of the applicability of the OMA. While courts have allowed public bodies to meet remotely, The Open Meetings Act Compliance Board has judged that under certain circumstances, communications between members through text messages or emails may violate the OMA.
From the Issue Papers:
“Courts are likely to consider the following factors: (1) the number of participants involved in the communication; (2) the number of communications regarding the subject; (3) the timeframe within which the electronic communications occurred; and (4) the extent of the conversation-like interactions reflected in the communications.” 09 OMCB Opinions 259 (2015). Furthermore, OMCB has also found that substantive communication among members occurring outside of the public view, even when the number of members does not constitute a quorum, may violate the OMA.
During the 2021 General Assembly Session, the legislature will again consider overhauling enforcement provisions in the Public Information Act (PIA). Currently, Maryland’s Public Information Act Compliance Board (PIACB) has the ability to hear complaints that record custodians have overcharged for record request fulfillment, provided the fee is greater than $350. Individuals who feel that a government agency has failed to completely fulfil their records requests or unfairly denied them access to records may ask the Public Access Ombudsman to mediate, or file suit in circuit court. Last Session, a bill was introduced that would provide the Board the ability to hear all types of complaints related to record requests. This includes failure of a custodian to respond to a request, and denials under exemptions outlined in the PIA. The Board would also have expanded authority to hear more cases related to fees. The Board would be able to waive or reduce fees, and the threshold for claims of overcharging would be lowered to $200.
Custodians would be able to ask the Board to find that requestors have submitted frivolous or vexatious requests. The Board could then allow custodians to ignore those requests. Additionally, the bill would require that custodians adopt a policy of proactive disclosure that reflects budgetary resources. There would also have been enhanced tracking and reporting requirements. This bill will return in amended form for the 2021 Session.
Helpful 2021 Session Links:
Maryland General Assembly website | 2021 Dates of Interest | Issue Papers
Re-opening procedures: Senate | House of Delegates | House Committees
Follow MACo’s advocacy efforts on MACo’s Legislative Tracking Database
MACo’s 2021 Priorities | MACo’s 2020 Wrap-Up