War and Peace Ending the Tug of War

War and Peace Ending the Tug of War between requesters and custodians of records May 5, 2017 1

Introductions Lisa Kershner, Public Access Ombudsman Karen Federman Henry, Assistant Attorney General 2

What’s new in the PIA? • Effective October 2015, the Office of the Public Access Ombudsman and the Public Information Act Compliance Board were created • Appointments to each occurred in early 2016 • Both serve as mechanisms to assist requesters and custodians with PIA disputes 3

How do they help? • Public Access Ombudsman – Mediates disputes involving fee waivers, delays in response, exemptions, denials, and excessive requests – Requester or custodian can seek assistance – Voluntary participation by the parties • Public Information Act Compliance Board – Only reviews fees that exceed $350 and are considered unreasonable – Evaluates the fee charged based on actual costs – May order a reduction or refund – Complaint must be filed within 90 days of the action charging it 4

Who appoints them? • The Ombudsman – appointed by the Attorney General – OAG provides staff and office space – Operates independently and autonomously of AG • The Board – Appointed by the Governor – Staggered terms – OAG provides staff and office resources 5

Highlights of the first year of operations 6

First, some statistics 7

Ombudsman’s statistics April 1, 2016 – March 31, 2017 First 12 months of Ombudsman’s Activities 2016 – 17 282 requests over 12 Months w 237 - Mediation requests w 45+ - Other /“help-desk” inquiries 8

Who are the agencies involved? – Of the 237 mediation matters with the Ombudsman, there were 114 distinct state, county and municipal level entities participating. – 33 agencies were state level, 33 were county level – from 19 different counties and Baltimore City, and locally 9 were from municipalities. 33 33 23 9 11 State Agencies County Government Municipal Government Police/Fire Depts. State’s Attorney’s Offices Public School Systems 9

Who are the Requestors? 18% 12% 7% 4% 16% Advocate, 12% Attorney, 7% Business/Corporate, 4% Individual, 43% Inmate, 16% Media, 18% 43% 10

What are the PIA disputes? 3% 6% 4% 2% 7% 32% 6% 26% No agency response, no documents produced Partial, nonresponsive, or incomplete response Misapplication of exemption Fees excessive 14% Redaction inappropriate Does not believe response Asked for explanation of response Other Fee waiver request denied or ignored Note: the disputes are presented as framed by the requestor. These characterizations are 11 based on how the requestors describe the issues. These are not findings.

Top 5 Lessons learned from the disputes 1. Communicate…Communicate – Open and forthright communication is essential to a relationship of trust and confidence. 2. When responses to PIA requests are ignored, public trust and confidence in government is diminished. 3. Being flexible and working cooperatively yields results. 4. Do not ignore fee waiver requests, especially those submitted with Affidavits of Indigency. 5. An up-to-date records retention schedule can aid in responding to PIA requests. – It tells a custodian what records should exist and where, and what might not exist. – It facilitates posting an online list of immediately available records. 12

Statistics for the Board • FY 16 – 9 matters received – 5 opinions – 4 referred to the Ombudsman or withdrawn • FY 17 – 12 matters received – 3 opinions – 7 dismissed or withdrawn – 2 remain pending 13

What triggers a referral from the Board to the Ombudsman? • Sometimes the complaint includes multiple issues – The fee is unreasonable AND the fee waiver was denied – The request generates thousands of pages of material and many hours of staff time • The fee may be appropriate, but the parties might benefit from modifying the request (which, in turn could reduce the cost) – Fee estimate is too early in the process to evaluate for actual costs 14

Examples • Complaint asserts unreasonable fee, denial of a waiver, and insufficient search by custodian • Complaint asserts unreasonable fee and delay in search for records and providing them • Premature complaint—estimated fee did not have sufficiently precise figures, but provided a range and a disclaimer that it could be higher or lower • Complaint about assertion of exemption or redactions 15

What leads to a dismissal by the Board? Sometimes there is no issue for the Board or the Ombudsman (so referral is not an option) – No fee charged or the fee is less than $350 – No allegation of an unreasonable fee – No assertion of a denied waiver – Submitted too early or too late 16

Examples • Complaint premature—complainant still gathering facts and fees changing • No assertion of an unreasonable fee • Complaint seeks a record but does not challenge cost • Complaint about fee less than $350 • Complaint seeks an advocate to help • Complaint filed untimely 17

Highlights of Opinions • Several opinions noted that the Board cannot review a fee waiver denial • Fees must derive from actual costs: – PIA allows fee “reasonably related to actual costs” —custodian must show this – cannot include duplicate effort (reviews of the same information by multiple people); – the hourly rate must not include employee benefits—it is the rate of pay, not the cost to the employer – “blended” rate must derive from actual costs 18

More highlights • An early-stage estimated fee may not give the Board enough to review – If range too large, the Board cannot determine how to reduce or refund the fee – May be a good candidate for mediation to work on revising the request • Contractor-held records may be subject to the PIA – review contract to determine what work contractor must perform to gather materials – use contract’s hourly rate as part of actual costs calculation 19

Ombudsman’s Projects Current & Upcoming • Contact the Ombudsman – Website (coming soon): http: //www. mpiaombuds. maryland. gov – Twitter: @MPIA_Ombuds – Email: pia. Ombuds@oag. state. md. us • Custodian/requestor working group(s)(coming soon): – Systemic issues can be addressed through the PIA constituent community. • Training & Presentations 20

Outreach efforts • Publications – Public Information Act News, Maryland Office of the Public Defender, December 2016 • Technical Assistance/Help Desk – The Office of the Public Access Ombudsman receives daily requests regarding a number of PIA matters, including: • Questions about PIA process • Misdirected requests for public records—these are referred to the correct custodian when possible 21

What else is new with the PIA? (in case you missed it) • 10 -day letter—within 10 working days, the custodian must tell a requester how long the response will take, the reason for the time needed, and an estimate of the range of fees that might be involved – This keeps it on the front burner! – Written letter or email will suffice • Cannot ignore a request or evaluate its purpose—the identity of a requester is irrelevant to the custodian’s responsibilities – Exception—if requester seeks fee waiver for public interest, identity might be needed OR if records may be released only to a person in interest 22

More new provisions that you may have missed • Identify PIA representative—update annually by sending an email to the Office of the Attorney General • Post list of immediately available records • Include more details in denial letter—redact whenever possible (vs outright denial)—enough description to explain the exemption asserted as applied to the request • Creation-of-record exemption—does not preclude printing or copying data from electronic storage 23

And don’t forget • Statutory damages may be awarded for “knowing and willful” violations of the PIA by an agency • Fees for actual costs must be based on “each individual’s salary and actual time, ” including attorney time • Fee waivers may be granted for public interest OR based on individual indigence 24

Report by the Attorney General • The 2015 legislation also directed the Attorney General to prepare a report that addresses several topics under the PIA: – – – The duties of the Board and Ombudsman Merging the Open Meetings Board and the PIA Board The use of fee waivers generally and for indigency The denial process used by custodians Analysis of public records held by non-governmental custodians and ways to ensure access – Analysis of State law exemptions located outside of the PIA 25

Interim Report • The OAG published its interim report in December 2016 • The report appears on the OAG website: – Marylandattorneygeneral. gov – Recent OAG reports tab • Comments are sought by June 30, 2017 • Final report will be published in December 2017 • Please review and submit comments! 26

General Assembly 2017 These passed: One bill specific to the PIA—HB 383 (SB 1057) – Public Information Act – Denials of Inspection – Explanation Regarding Redaction—returned passed • Requires the records custodian to include an explanation of why redacting information would not address the reasons for denying inspection of a public record Note: this bill supplements the existing requirement to provide a brief explanation of why denial is necessary Plus a bill that impacts SB 44 – Records Management and Preservation – State and Local Government Units – Responsibilities—passed enrolled • Applies records management and preservation to instrumentalities of State, counties, and municipalities; strengthens existing requirements; includes electronic data; note that more stringent requirements facilitate having the records when applicants request them, so this is a counterpart to PIA; Note: the bill amends the State Gov’t Article 27

Other bills of interest They did not pass, but could they? • HB 767 (SB 970) – Public Information Act – Inspection of Records from Body-Worn Digital Recording Devices—passed House; unfavorable report from Senate Judicial Proceedings Requires denial of inspection of parts of the recording to protect victims and other stakeholders • SB 362 (HB 698) – Public Information Act – Records Relating to Alleged Job -Related Misconduct by Law Enforcement Officers—unfavorable report for HB 698; did not make it to the Senate Declares that the records are not personnel records for purposes of the PIA; includes probationary and non-merit service in definition of law enforcement officer; allows person who alleges misconduct to obtain the outcome of the investigation or adjudication of discipline • HB 1241 – Public Bodies – Use and Retention of E-Mail – Requirements— unfavorable report; did not make it to Senate Requiring use of government email systems for public bodies and to forward any non-government emails to the government system for retention; must retain emails for at least 1 year and establish schedule for appropriate retention periods; applies to public bodies governed by the 28 Open Meetings Act

Takeaways • • Communicate! [For time and for clarity of request] Do not wait until the 29 th or 30 th day to respond to PIA requests Calculate actual costs for fees—explain the formula and the calculation to a requester Engage in a discussion with a requester if a fee is high—perhaps the request can be modified and be more satisfying for the requester and the custodian—understanding each other makes a significant difference in the experience Take advantage of open data opportunities and make items immediately available Make sure agencies have records retention schedules with Md. Archives—it facilitates what should be available and when it won’t be available Indigence is a valid ground for waiver—often arises with inmates, but can apply to others; evaluate ANY waiver request (do not ignore the request or deny without consideration) 29

Questions ? ? ? 30