MACo’s initiative legislation to modernize the state’s Public Information Act, SB 788, received its likely death blow on the Senate floor, and has been recommitted back to its Senate Committee. That, very likely, ends the debate on the matter for this session. The House cross-filed bill has not received any House action.
During the bill’s hearing the Maryland chapter of the American Civil Liberties Union, who objected to certain provisions of the bill regarding the release of body camera footage. MACo’s bill sought to carve out narrow classes of materials as not appropriate for release under the PIA — including footage that could identify crime victims, show the death of a public safety officer, or are offered without any claim of wrongdoing or other potential rights violations. Despite these provisions, the Maryland ACLU testified the bill was too broad. Some time after the public hearing, additional groups representing other communities came out in opposition to the bill.
On the Senate floor, the Chair of the Education, Health, and Environmental Affairs Committee Joan Carter Conway noted the opposition from groups that had not appeared before the committee, and after making that reference, urged the Senate floor to recommit the bill “for more work.” No Senators objected to the request, which then passed on a voice/acclamation vote.
In most cases, “recommitting” a bill represents a final chapter in legislative deliberations. While it is still procedurally possible for the bill to be reported out again, that appears unlikely.
After a three year effort to bring change to these public records laws, it appears the effort will go unresolved. These sensitive classes of documents and records will remain conditionally releasable, as custodians will be without bright-line rules on what documents should not be released to the public.
MACo’s legislative initiative to “Modernize the Public Information Act” passed its Senate Committee on Tuesday, March 13, clearing its first of several hurdles toward passage.
SB 788 passed the Senate’s Education, Health, and Environmental Affairs Committee without any “NO” votes, after the Committee spent time during its voting session discussing the bill’s application and effects. At the time of this writing, the bill sits on the floor of the Senate awaiting a second reader vote, and the addition of technical amendments.
MACo is working with multiple other stakeholders – representing law enforcement, victim’s rights groups, school systems, and others – in arguing that the bill provides needed balance to laws generally dictating that public records and documents be shared with the public. Other groups that frequently oppose measures that limit public distribution of such documents (the MD/DC/DE Press Association, and Common Cause of Maryland) have indicated their comfort with this bill’s balance, and did not raise such objections to the bill (into which they contributed very substantial input).
The bill faces opposition on the Senate floor and may be subject to multiple attempts to lessen its scope or effects via floor-offered amendments. Its elements regarding footage from body cameras and similar devices are the central target of this opposition. Some legislators have expressed concern that the bill retains too much direction to provide records of body camera footage. Others have been advised by a limited group of advocates that denying such records compromises accountability in troubling circumstances like police officer misconduct (although the bill explicitly does not change the law regarding such records).
Other bill provisions include tightened assurances that personal identification information such as Social Security numbers and dates of birth should not be released, and that passive subscribers to government newsletters and mailing lists should not have their personal information released under the PIA.
On the latest episode of the Conduit Street Podcast, Kevin Kinnally and Michael Sanderson discuss the looming “crossover” deadline, review the latest on the State’s fiscal plan, break down MACo’s Legislative Initiative to modernize the Maryland Public Information Act, and look ahead as the dust begins to settle on the 2018 session. MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.
As the unofficial deadline for passing legislation out of its original chamber approaches, both the Senate and House are awash with lengthy agendas and long floor sessions. The “crossover” date is Monday, and bills passed out after that date will be forced to go to the Rules Committee of the second chamber, a procedural hurdle impeding their chances of final passage.
As proposed by the Governor, the budget included shifting nearly all costs of the State Department of Assessments and Taxation (SDAT)’s assessment and directorial functions to counties, forevermore. The Senate struck this language from the BRFA.
The Governor’s original proposal also included flat funding local health departments at the previous year’s levels. The Senate cut that language, too– instead increasing the funding according to the formula in existing law.
The Senate has also approved all funds included in the original budget for local roads funding: $178.1 million in highway user revenues, in addition to $53.7 million in additional local transportation grants. This includes a full $27.8 million to 23 counties, which is $15 million more than the Senate approved last year.
The applicable House Appropriations subcommittees have also recommended retaining all local roads funding in the budget, scrapping any language to shift additional SDAT costs to counties, and increasing local health department funding. The full committee considers the budget bills on Friday.
Modernizing the Public Information Act
Maryland’s Public Information Act creates a balanced framework for guaranteeing public access to open information, while protecting sensitive and private material. The rapid ascension of new technologies has strained the implementation and effect of these laws – potentially chilling their otherwise beneficial use. Maryland should clarify and reframe its Public Information Act to better accommodate citizen electronic engagement, personal surveillance footage from first responders and other county officials, and the release of sensitive personal information.
SB 788 – Public Information Act – Revisions, a 2018 Legislative Initiative, received a favorable report from the Senate Education, Health, and Environmental Affairs Committee and the full Senate may vote on the bill this week. The bill’s cross-file, HB 1638, was heard in the House Health and Government Operations Committee on March 7. The Committee has not taken action on the bill.
The main focus of this bill is ensuring government transparency and accountability while shielding victims of sexual crimes, domestic violence, and child abuse from having their very private – and very traumatic – information needlessly shared. With new technology such as body cameras, more private details are available now than have ever been available before. This bill allows record custodians to focus on videos that are in the public interest, while protecting the identities of victims.
Opponents of the bill want to change SHALL to MAY. Shall ensures victims will be shielded. MAY makes it an option.
Do you want protecting victims to be an option?MACo doesn’t.
Here are the key points of the bill:
ENSURES TRANSPARENCY & ACCOUNTABILITY
Video in the public interest (where someone’s rights may have been violated) is subject to disclosure
Even a spoken allegation of potential misconduct is enough to trigger disclosure
Shields identity of victims of sexual crimes, domestic violence, and child abuse
Shuts down “victim shaming”
RESIST “SHALL” TO “MAY” AMENDMENT – Making victim disclosure optional by changing “SHALL” to “MAY” (as opponents suggest) will “just protect victims sometimes.” MAY IS NOT GOOD ENOUGH
MACo’s Message: MAY = MAYBE. SHALL = SHIELD.
Join Maryland’s counties in getting this message to legislators.
Tell your EHE members to SUPPORT SB 788 and RESIST the “SHALL” to “MAY” amendment.
On the latest episode of the Conduit Street Podcast, Kevin Kinnally and Michael Sanderson discuss the announcement of a statewide Text to 9-1-1 system, examine Maryland’s Public Information Act (and why it needs an update), break down the “Access to Public Courts Act,” preview #LIFT4MD day in Annapolis, and explain the beer battle in Maryland.
MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.
If you are having trouble using this media player, listen on our website.
Aligning Public Access Laws with Modern Technologies
Maryland’s Public Information Act creates a balanced framework for guaranteeing public access to open information, while protecting sensitive and private material. The rapid ascension of new technologies has strained the implementation and effect of these laws – potentially chilling their otherwise beneficial use. SB 788/HB 1638, Public Information Act – Revisions, clarifies and reframes the Maryland Public Information Act to better accommodate citizen electronic engagement, personal surveillance footage from first responders and other county officials, and the release of sensitive personal information.
MACo this week testified in opposition to HB 1270/SB 1042. In theory, the bill seeks to ensure there is adequate legal representation for low-income individuals asserting a constitutional claim in State courts. In practice, the bill would trigger a rush of litigation and costs for the State and local governments and create a profoundly unbalanced system that favors plaintiffs over defendants.
Text to 9-1-1
Governor Larry Hogan this week announced the Board of Public Works’ approval of a new Text to 9-1-1 technology for Maryland, helping to update 1960s-era emergency systems with life-saving technology. This new Internet-based infrastructure allows citizens to send a Short Message Service (SMS) text message to 9-1-1. The Federal Communications Commission estimates that more than 70 percent of all 9-1-1 calls now come from cellular users.
Text to 9-1-1 supports 160 characters per message, but no multimedia messaging, such as photos or video. The total cost of the 2-year contract is approximately $2.2 million.
Text to 9-1-1 is a component of Next Generation 9-1-1 (NG911), an initiative aimed at updating the 9-1-1 service infrastructure to improve public emergency communications services in a wireless mobile society. NG911 will improve and enhance the handling of 9-1-1 calls from cell phone users with technology that will increase response times, location accuracy, and allow text, photo, and video data to be shared by callers to First Responders on their way to the emergency.
Advancing NG911 is a priority for county governments. SB 285/HB 634, a 2018 MACo Legislative Initiative, establishes the Commission to Advance Next-Generation 9-1-1 Across Maryland. The Commission will examine the strategic aspects of Next Generation 9-1-1 implementation in coordination with the Emergency Numbers Systems Board’s (ENSB) existing efforts, particularly ensuring that those areas outside of the statutory responsibilities of the ENSB are addressed. The Commission will study and make recommendations for the implementation, technology, funding, governance, and ongoing statewide development of Next Generation 9-1-1 to the Governor and Maryland General Assembly.
A perennial MACo initiative, counties have called for the return of their fair share of transportation-sourced revenues to fund their roadwork for years. This year, MACo’s initiative calls for a Local Infrastructure Fast Track – a #LIFT4MD – to bring local governments back their historic 30 percent share of transportation revenues from the State’s Transportation Trust Fund. It also calls for an assessment of the state of local infrastructure in Maryland, and for the State to share any additional federal infrastructure funds with counties and municipalities.
After discussing the topic with a myriad of stakeholders, MACo decided instead to introduce a consensus bill, with terms appealing to not only counties, but municipalities and the Administration. Therefore, House Bill 1569, as introduced, restores highway user revenues to counties and Baltimore City in eight years, and municipalities in two years.
The hearings on MACo’s Local Infrastructure Fast Track for Maryland Act are scheduled for Wednesday, March 7 at 1 pm in the Senate Budget and Taxation Committee and Friday, March 9 at 1 pm in the House Environment and Transportation and Appropriation Committees.
MACo calls on representatives from all levels of county governments to join us for these hearings to show your support – it’s time to find a way to give local infrastructure a LIFT.
Maryland lawmakers are considering a bill by Comptroller Peter Franchot that would repeal some of the state’s regulations on craft beer breweries. In 2017, Franchot proposed the Reform on Tap Act of 2018, a bill to relieve regulatory burdens on craft beer production and sales.
The Comptroller’s bill would remove the state’s limits on how much beer breweries are allowed to sell on-site. It would also allow breweries to sell directly to retailers instead of requiring them to make franchising agreements with distribution companies. Currently, Maryland craft breweries are allowed to sell up to 3,000 barrels of beer, or about 500,000 pints, directly to consumers each year.
MACo Legal and Policy Counsel Les Knapp testified in support of emergency legislation that would protect an individual’s personal contact information that is used to provide official government news or emergency alerts from disclosure under the Maryland Public Information Act (PIA) before the Senate Education, Health, and Environmental Affairs Committee on February 21, 2018. The bill (SB 477) was sponsored by Senator Cheryl Kagan and is a Maryland Municipal League Legislative Priority. The bill is also a component of MACo’s larger PIA Legislative Initiative that also addresses the release of personal surveillance video and a person’s social security number and date of birth.
In his testimony, Knapp expressed concerns that allowing disclosure of personal contact information under the PIA could actually lead to a chilling effect on people seeking out information about government activities or receiving alerts. Knapp also focused on the narrow scope of the bill’s restriction on disclosure:
It is a fundamental principle of both the State and local governments in Maryland that public information be easily available to residents and other interested parties. A primary method of providing such information is through official newsletters and emergency alert notices. Whether through mailings, email, or text messages, individuals can receive information about government activities or emergency events.
However, under the PIA, anyone can request a person’s contact information contained in these distribution lists and the State or local governments are generally required to provide them….Disclosure of personal contact information has led to people being spammed with unwanted commercial or political communications.
This also creates a disincentive for people to use government subscription services and erodes the public’s trust in our institutions. Ironically, many private companies have stronger protections in place about disclosing customer information than Maryland’s governments do for their own residents.
The bill only applies to personal contact information used solely for the passive distribution of official news or emergency alerts. It does not apply to personal contact information provided as part of an “active” engagement with a government agency or official.
For example, an individual’s contact information remains subject to PIA disclosure when the individual: (1) sends a letter providing comments on a proposed ordinance or regulation; (2) requests government action on an issue, such as fixing a pothole; (3) signs up to speak at a public hearing or meeting; or (4) submits a PIA request. The bill also still allows disclosure of aggregate subscriber data – just not the release of personal contact information.
Carroll County Attorney Timothy Burke joined Knapp in supporting the bill and recounted a recent legal challenge that required the County to turn over contact information for all subscribers to the County Commissioners’ official newsletter. Several Maryland Municipal League representatives and municipal officials were on hand to support their priority. Common Cause of Maryland and the Maryland/Delaware/District of Columbia Press Association also testified in support of the bill. No one testified in opposition.
HB 677 is the cross-file to SB 477 and will be heard by the House Health and Government Operations Committee on February 21.
MACo Legal and Policy Counsel Les Knapp offered sponsor-friendly amendments to local ethics commission legislation before the Senate Education, Health, and Environmental Affairs Committee on February 8, 2018. SB 474, sponsored by Senator Joanne Benson, would would require a local ethics commission (or the appropriate entity) to meet at least three times a year
and file an annual report with the local governing body and members of the General Assembly who represent that jurisdiction. The reports must provide an overview of the local ethics law and the
activities of the local ethics commission.
From MACo’s testimony:
MACo believes the annual reporting requirements further local government transparency and openness and would not place an undue fiscal or administrative strain on the local ethics commission. However, MACo would offer an amendment to require the ethics commission to meet at least once a year instead of three times a year.
Unless a jurisdiction is facing an ethics issues or considering changing its ethics laws, there may be no need for a local commission to meet more than once a year. Requiring additional meetings that may not be required is both inefficient and wasteful. MACo has worked with the bill’s sponsor and believes the sponsor is supportive of this amendment.
Senator Benson indicated her support for the amendment, offering the language as a sponsor amendment. Maryland Municipal League Governmental Relations Director Candace Donoho also testified in support of the amendment but noted some reservations with the bill’s reporting requirement.
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.
MACo Legal and Policy Counsel Les Knapp testified in opposition to Senate Bill 167, “Public Information Act – Suits Filed by Custodians – Prohibition”. SB 167 would prohibit a governmental unit from filing suit against a person who has requested to inspect a record under the PIA. The intent of the bill is to prevent a custodian from invoking a lawsuit as a first response to a records request. However, the bill seeks to solve a problem that has yet to exist in any tangible capacity in the state of Maryland.
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.”
Follow MACo’s advocacy efforts during the 2018 legislative session here.
A Washington Post article (2018-01-13) reported that the state of Hawaii issued an emergency alert on January 13, 2018, that warned of an incoming ballistic missile attack. The alert turned out to be a false alarm but briefly caused a public panic until the alert was retracted 38 minutes after it was sent. While it was ultimately determined that the alert was caused by human error and failures in Hawaii’s emergency alert procedures, initial speculation raised the possibility that Hawaii’s emergency alert contact lists had been hacked or compromised.
MACo will examine the Hawaii alert situation and discuss how it is relevant to both Maryland and its counties in a two part blog article. Part 1 (this part) will discuss what happened and highlight the importance of protecting the contact information of residents. Part 2 will explore the shortcomings in Hawaii’s emergency alert system and provide lessons learned for Maryland’s local governments.
The article noted that at approximately 8:07 am, the Hawaii Emergency Management Agency sent the following cellphone alert: “BALLISTIC MISSILE THREAT INBOUND TO HAWAII. SEEK IMMEDIATE SHELTER. THIS IS NOT A DRILL.” The alert appeared to have been accidentally activated by an Agency employee during a shift change. While the Agency tweeted that there was no actual missile threat at 8:20 am, a second text alert retracting the previous alert was not sent until 8:45 am. The article stated that the message caused a brief panic in some residents and tourists while others appeared to have no idea what was happening. From the article:
“I literally sent out ‘I love you’ texts to as many family members as I could. It was all kind of surreal at that point,” [Honolulu resident Noah] Tom, 48, told The Washington Post. He made the difficult decision of turning the car toward home, where his two youngest children were. “I figured it was the largest grouping of my family.” …
Back on shore, there was no panic, just vacationers and others wondering why there was no immediate coverage on restaurant televisions or local radio.
Unsurprisingly the false alarm resulted in calls for a thorough investigation from both state and local Hawaii officials. The article indicated that the Federal Communications Commission (FCC) also plans to conduct an investigation. Both the Agency and other emergency management agencies throughout the United States plan on reviewing their alert procedures and if necessary making changes to avoid a similar situation. Part 2 of this series will examine the procedural and communication lessons the Hawaii incident poses to county emergency management agencies.
PROTECTING EMERGENCY ALERT CONTACT INFORMATION
While the cause in this particular incident was human error, it is also critical for states and local governments to protect their emergency contact information. As part of their 2018 legislative initiatives, both MACo and the Maryland Municipal League are introducing legislation to prohibit the release of an individual’s personal contact information (street address, email address, or telephone number) under the Maryland Public Information Act where that information was solely provided or gathered to create an alert, notice, or news distribution list. This prevents residents from being spammed with unwanted messages, or worse, false alerts that are made to look like official notices. MACo believes this makes sense from both a security and privacy perspective.