2017 End of Session Wrap-Up: Public Information & Ethics

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:

  1. clarified the bill did not apply to public records entered into evidence in a court proceeding;
  2. prohibited release of video that depicted the death of a law enforcement officer that occurred in the performance of the officer’s duties;
  3. clarified that the victim notice requirement applies to all qualifying victims regardless of whether the record request was denied or granted; and
  4. deleted as superfluous the provision requiring a custodian to allow inspection of body camera video if it is not otherwise prohibited under the PIA.

Push Icons-NOT IDEALFINAL 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.

MACo Testimony on HB 767

MACo Testimony on 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.

Push Icons-IMPROVEDFINAL 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:

  1. 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
  2. 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
  3. Requires the OMCB to distribute educational materials on the requirements of the Open Meetings Act to specified parties
  4. 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
  5. 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
  6. 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

MACo Testimony on HB 880

MACo Testimony on SB 450

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.

Push Icons-IMPROVEDFINAL 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.”

MACo Testimony on SB 44

Click here for a round-up of the wrap-ups for all policy areas

Montgomery County Council Responds to Email Address Publication

As reported by the Washington Post, last week “more than 200,000 email addresses of people receiving newsletters and other information from the county government were made public on the county’s website.”

The County Council responded by asking their attorney to remove from public view many of the email addresses, and one council member has drafted an amendment to the 2012 Open Government Law that required the disclosure, according to the Post.

For more information, see Too much transparency? Montgomery balks at publishing residents’ email addresses (limited free views available) from the Washington Post.

House Passes “Public Integrity Act” Unanimously

A Baltimore Sun article (2017-03-24) reported that the Maryland House of Delegates unanimously passed legislation (HB 879) on March 24 that would tighten conflict of interest, lobbying, and public ethics laws for state legislative and executive branch officials. The legislation follows the formal reprimand of Delegate Dan Morhaim for failing to disclose that he had a contingent employment agreement with a medical cannabis company while advocating on medical cannabis issues before the Maryland General Assembly.

The legislation would explicitly prohibit such conduct, limit the ability of legislative and certain executive officials to lobby immediately after leaving office, require greater disclosure about income generated by spouses, and create an independent citizen ethics advisory board. From the article:

Gov. Larry Hogan sought an even more sweeping rewrite of the rules that would have subjected legislators’ conduct to oversight by an executive branch commission [HB 438/SB 253]. The attorney general’s office advised that such a move would probably violate the state constitution by breaching the separation between different branches of government.

Doug Mayer, a spokesman for Hogan, said the bill as passed represented a compromise that the Republican governor’s office was happy to see moving forward.

“We see this as a definite step forward and a move in the right direction after some very high-profile indictments and public ethical lapses that will help restore the trust the public deserves to have in their institutions of government,” he said.

Alexandra Hughes, House Speaker Michael E. Busch’s chief of staff, said Busch was pleased that he and the governor could combine ideas to produce “one of the strongest ethics bills in years.”

“This legislation will provide greater transparency to the public and tighten conflict of interest laws for greater public confidence in elected officials in the executive and legislative branches,” she said.

The bill’s cross-file, SB 683, was heard by the Senate Education, Health, and Environmental Affairs Committee on March 3 and no further action has been taken on the bill since the hearing.

Useful Links

HB 879 / SB 683 of 2017

HB 438 / SB 253 of 2017

Montgomery Situation Highlights Tension Between Transparency & Privacy

A Washington Post article (2017-03-26) highlighted the challenges counties and all levels of government face when deciding how to balance the mutually exclusive but worthwhile goals of transparency and privacy. The article focused on the decision of the Montgomery County Council to request  that more than 200,000 email addresses of people receiving County newsletters be removed from the County’s open government portal, DataMontgomery. The Council adopted legislation in 2012 that created the portal and requires a large amount of county data to be made available online. From the article:

A five-member majority of council members — [Hans Reimer (D-At Large)], Nancy Floreen (D-At Large), Sidney Katz (D-Rockville-Gaithersburg), Nancy Navarro (D-Midcounty) and Craig Rice (D-Upcounty) — ordered their attorney to pull back from public view more than 90,000 of the email addresses published on DataMontgomery , the portal created under Riemer’s [2012 open government] bill. The bill required publication on the portal of any information released through a Maryland Public Information Act request. …

“This is like a treasure trove for marketers,” agreed Council President Roger Berliner (D-Potomac-Bethesda), who was not one of the five. Publication of the addresses, he said, could have created a “chilling effect” that would prevent many of the county’s 1 million residents from interacting with local government.

Pulling the email addresses violated the 2012 law, which is similar to new open-government statutes in other states and localities. Riemer said the decision was forced by “exigent circumstances” and argued that the public interest served by mass distribution of the addresses was outweighed by privacy concerns.

The article noted that Reimer was preparing an amendment to the 2012 open government law that would exclude email disclosures. The article contained the opinion of Future of Privacy Forum Vice President for Policy John Verdi, who stated that balancing transparency and privacy was an increasingly common challenge for governments.

“Everybody agrees that transparent government is a good thing,” said Verdi, a former Obama administration official who worked on privacy issues. “You have data that is purely government data, and data appropriately excluded by public information laws. Then you get the gray area in the middle, where an increasingly important question being asked is about the right balance between openness and privacy.”

Verdi said Montgomery’s experience “highlights government’s responsibility to provide notice to folks that information they submit might be made public.”

The article also provided further background on the Public Information Act request that led to the disclosure of the email addresses. The initial request was made by MocoVoters, a grass-roots group focused on voter turnout and development issues. Since receiving the email addresses, MoCoVoters has decided not to use them but instead build its membership through social media.

Useful Links

DataMontgomery Website

Future of Privacy Forum Website

Body Camera Legislation Defeated in Senate Committee

In a surprise move, the Senate Judicial Proceedings Committee defeated MACo’s initiative bill to refine what footage from police body-worn cameras could be released under the Maryland Public Information Act. MACo’s bill, described by many as a “near consensus,” had sought to limit the worst-case scenario of a broad, untargeted request for footage that could prove costly and cumbersome to prepare for distribution.

HB 767, Sponsored by Delegate Sydnor, passed the House of Delegates with a comfortable bipartisan majority, but that bill and its Senate cross-file SB 970 were debated in the Senate Committee and ultimately rejected by nearly the full Committee membership. That vote spells the end of the debate on this issue for the session, and potentially for good.

A similar fate befell MACo’s bills in the 2016 session, when the House made modest amendments and passed the bill. The Senate committee, citing an extraordinary workload from other high profile legislation, did not focus on the body camera bills and they died without a formal vote, for lack of action.

 

You’re Invited: Join Us for Our Weekly Legislative Update Conference Call

Every Friday during the legislative session MACo will host a conference call that will update you on the Maryland General Assembly hot topics and bills that affect local governments. Join the conversation at 3:00 pm each week as MACo explores different topics and hosts guest speakers.

This week’s topic (March 10): Environment and Public Information / Ethics

MACo Policy Associate Kevin Kinnally will be joined by MACo Legal and Policy Counsel Les Knapp for an update on a number of environmental and public information/ethics bills. Call in for an update on police body cameras, energy siting, septics, collective bargaining, and more!

Conference call information: 1.877.850.5007, passcode: 2690043#

We look forward to your participation! Submit your questions in advance by e-mailing Kevin Kinnally.

You’re Invited: Join Us for Our Weekly Legislative Update Conference Call

Every Friday during the legislative session MACo will host a conference call that will update you on the Maryland General Assembly hot topics and bills that affect local governments. Join the conversation at 3:00 pm each week as MACo explores different topics and hosts guest speakers.

This week’s topic (March 3): MACo Initiatives Update

MACo Policy Associate, Kevin Kinnally will be joined by members of the MACo Policy Staff for an update on MACo’s 2017 Legislative Initiatives. Call in for an update on school construction funding, energy siting, police body cameras, and #LIFt4MD (Local Infrastructure Fast Track for Maryland)!

Conference call information: 1.877.850.5007, passcode: 2690043#

We look forward to your participation! Submit your questions in advance by e-mailing Kevin Kinnally.

MACo and Partners Support Initiative Bills on Police Body Camera Footage

MACo Associate Director, Natasha Mehu, testified in support of a pair of cross-filed bills, Senate Bill 970 and House Bill 767, “Public Information Act – Inspection of Records From Body-Worn Digital Recording Devices,” before the Senate Judicial Proceedings Committee and the House Judiciary Committee on February 21, 2017.

The bills are one of MACo’s four legislative initiatives for 2017.  Maryland’s 23 counties and Baltimore City saw the issue of  how body camera footage is treated under Maryland’s Public Information Act (PIA) as vitally important to address. Joining MACo in support of these bills were Bill Jorch, Maryland Municipal League; Hilary Ruley, Chief Solicitor, Baltimore City; John Fitzgerald, Chief of Police, Chevy Chase Village (representing the Maryland Association of Chiefs of Police and the Maryland Sheriffs Association); and Lisae Jordan, Executive Director & Counsel for the Maryland Coalitions Against Sexual Assault.

The bills would create a needed policy on how police body camera video would be handled under the Maryland Public Information Act (PIA). The bills would provide for: (1) law enforcement officer accountability and transparency; (2) protection for victims of abuse, domestic violence or sexual attacks; and (3) clarity of and protection from potentially abusive requests to local government and State records custodians. MACo believes these bills achieve these necessary protections for all parties without altering any current discovery rights or PIA exceptions.

From MACo testimony:

 MACo believes that SB 970 offers a thoughtful and reasonable solution to the issues posed by police body cameras under the PIA. The bill ensures police officer accountability and transparency, includes victim protections, and addresses the expense and potential for abusive requests facing local governments and State records custodians.

Follow MACo’s advocacy efforts during the 2017 legislative session here.

Sponsors Modify Open Meeting Training Bills With MACo-Supported Amendments

MACo Policy Associate Kevin Kinnally offered amendments to legislation (HB 880) that would alter the required training requirements for members of public bodies under the Maryland Open Meetings Act before the House Health and Government Operations Committee on February 15, 2017. MACo Legal and Policy Counsel Les Knapp offered the same testimony on the cross-file (SB 450) before the Senate Education, Health, and Environmental Affairs Committee on February 16. HB 880 was sponsored by Delegate Maricé  Morales while SB 450 was sponsored by Senator Roger Manno.

As introduced, HB 880 and 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.

In their testimony, Kinnally and Knapp supported amendments striking the bills’ provisions and instead replacing it with a new training requirement agreed upon by MACo, the Maryland Municipal League and other stakeholders last year. Both sponsors offered the MACo-supported amendments, along with some additional amendments regarding OMCB reporting and posting requirements. From MACo’s testimony:

MACo has consistently objected to expanding the training requirements to include every member of a public body – the requirements proposed by SB 450 [and HB 880] were debated and specifically rejected when the initial training requirement was passed in 2013 (HB 139). Public bodies range from large, statutorily created permanent bodies to small, all-volunteer task forces. The inclusion of all employees, officers, or members will place a burden on all sizes of public bodies and will be especially challenging for small volunteer bodies that in many cases are already struggling to attract participants.

However, MACo recognizes the need for open meetings training and would support the bill if it were amended to require at least one voting member of a public body (as opposed to a staff person, etc.) be required to take the training. Voting members have the authority to close meetings and it is reasonable to have at least one such individual take the training. Furthermore, if a voting member who has taken the training is not present when a meeting is proposed to be closed, the public body should have to complete and include in their minutes the short meetings closing checklist that was created by the OMCB. The provision regarding the submission of a letter to the OMCB should also be removed.

MACo believes these amendments would address the need to make sure the correct individuals are receiving open meetings training while acknowledging staffing and implementation realities on the governmental side.

Common Cause and the Maryland-DC-Delaware Press Association also supported the bill with the same amendments.

Useful Links

HB 880 of 2017

SB 450 of 2017

MACo Testimony on HB 880

MACo Testimony on SB 450

Delegate Morales Webpage

Senator Manno Webpage

MACo Bill Tracking Tool

Local Governments Object to State Archives Legislation on Records Management

MACo Legal and Policy Counsel Les Knapp testified in opposition to legislation (SB 44) that would impose both unmanageable records management requirements and unintended consequences on local governments before the Senate Education, Health, and Environmental Affairs Committee on February 8, 2017. The bill was sponsored by the Maryland State Archives (MSA).

SB 44 requires each unit of state and local government to offer for transfer to the MSA electronic records that the unit has determined are no longer needed for the transaction of business. Governmental units must also create and maintain an inventory of both electronic and non-electronic record files. Finally, the bill requires each unit of government to designate a “records officer” to serve as a contact point for the MSA).

While local governments must already have a records retention, disposal, and archival policies in place, including for electronic records, the bill’s provisions create impractical and sometimes contradictory requirements on local governments. The bill provisions also did not seem parallel the intent of MSA,  based on the testimony of State Archivist Tim Baker. From MACo’s testimony:

MACo appreciates the desire to update records retention, disposal, and archival policies to include electronic records. However, MACo is concerned that the bill will impose potentially significant implementation and technical issues regarding the capture, retention, organizing, and transmission of electronic data. Extracting electronic data from computer systems, proprietary databases, and mobile devices in a readable and accessible format will likely prove challenging.

The bill also seems to include metadata, which is not subject to disclosure under the Maryland Public Information Act, and handling this data could create additional legal and technical challenges. Finally, the bill would require a legal review of government software contracts to determine what information is a governmental record subject to MSA requirements.

MSA testified in support of the bill. Knapp was joined by Baltimore City Chief Solicitor Hilary Ruley and Hyattsville Clerk and Maryland Municipal Clerks Administration Representative Laura Reams in opposition to the bill. Ruley raised the concern that the bill placed local governments in a section of the Code reserved for State agencies, creating unintended consequences. Reams discussed implementation concerns.

MACo, the Maryland Municipal League, and MSA will meet soon to see  if SB 44 can be amended to address local government concerns.

Useful Links

SB 44 of 2017

MACo Testimony on SB 44

Maryland State Archives Website

MACo Bill Tracking Tool