Transparency in government is critically important today, especially when peoples’ trust in local authorities to act in their best interests and protect their health and welfare has diminished.
Maryland’s Public Information Act (PIA) could do much to restore that trust – if properly functioning and fairly enforced.
The law promotes government transparency by affording citizens’ a broad right of access to records of state and local government bodies “with the least cost and delay.”
Although the right to access records is subject to certain exceptions for confidentiality, privacy, and privilege, the core of the PIA is a belief in the right of citizens to know what their government is up to.
In 2015, the General Assembly made efforts to ensure that the PIA was living up to its central promise of timely and cost-effective governmental transparency.
At the time, when disputes about access to public records arose, an aggrieved party could go to court or, in some circumstances, pursue administrative review through the Office of Administrative Hearings (OAH).
Neither option was particularly accessible or practical for parties without the time and money that litigation requires. So the General Assembly created two independent, extra-judicial options for resolving PIA disputes.
The first is the Office of the Public Access Ombudsman. The Ombudsman makes efforts to resolve all sorts of PIA disputes, but can do so only on a voluntary and non-binding basis.
The second option is the PIA Compliance Board, a volunteer board of five members representing a diversity of interests and knowledge areas.
While the 2015 legislation originally envisioned that the Compliance Board would have broad authority to consider the same variety of PIA disputes that the Ombudsman does, it ultimately limited that authority to reviewing and deciding only disputes over fees greater than $350 charged under the PIA. At the same time the legislature eliminated the authority of “OAH” to decide certain PIA disputes.
Thus, although it almost certainly did not intend to, the General Assembly actually cut back options for enforceable review of PIA disputes.
After nearly five years of operation, it is now clear that neither the Ombudsman program nor the PIA Compliance Board is working as efficiently or effectively as it could.
While the Ombudsman has broad jurisdiction to mediate all kinds of PIA disputes – from total failures to respond to requests and denials of access to records to unreasonably broad and repetitive requests – the office lacks any enforcement authority.
While the PIA Compliance Board does have enforcement authority, its jurisdiction covers only narrow, fee-related questions.
The net result is that there are many PIA disputes that never get resolved unless the parties have the time and financial resources necessary to file a lawsuit in court.
Many PIA disputes never get resolved, unless the parties have the time and financial resources necessary to file a lawsuit in court.
In 2019, the chairmen of the Senate Budget and House Appropriations committees requested that the Compliance Board and Ombudsman collect certain PIA-related data from 23 state cabinet-level agencies and make recommendations related to PIA compliance and enforcement.
The result was a joint report that carefully examined the PIA landscape and revealed the problems detailed above. The report concluded that the best solution would be to expand the jurisdiction of the Compliance Board so that it could review and decide the variety of PIA disputes that cannot be resolved through mediation with the Ombudsman.
An analysis of the Ombudsman’s caseload suggests that the Compliance Board could expect to receive approximately 50 to 60 additional matters each year. About half of these matters would involve an agency’s denial or partial denial of a PIA request.
The 2019 report also revealed that agencies at times need relief when confronted with unduly burdensome or repetitive requests, and mediation is not fruitful. Thus, the Board should be authorized to review and provide relief for these sorts of disputes as well.
Regardless of the dispute, the Board’s decision would always be subject to judicial review, just as it is now.
Incentive to Engage
Legislation currently pending before the General Assembly (HB-183 and SB-449) implements these recommendations.
The bills build on the existing PIA dispute resolution programs to provide an efficient and user-friendly enforcement mechanism.
The legislation enhances the Ombudsman’s program by giving parties an incentive (avoiding Compliance Board review) to meaningfully engage with the mediation process, while also enabling review for those disputes that, after an earnest attempt at mediation, are in real need of a binding decision.
Put simply, the bills create more equitable access and serve the PIA’s overarching goals of transparency and good government.
The Ombudsman and members of the PIA Compliance Board unanimously support the bills.
We thank the bill sponsors, Delegate Brooke Lierman of Baltimore and Senator Cheryl Kagan of Montgomery County, and other stakeholders who are working together to fulfill the promise of better government in Maryland.
• Lisa Kershner is Maryland’s PIA Ombudsman. John “Butch” West chairs the PIA Compliance Board.