ANNAPOLIS — Lawmakers and open government advocates are promoting a package of three bills meant to modernize the state’s open records laws, which are now 50 years old.
Supporters and users of state open records laws applaud them as giving the public more insight into government, but they frequently complain that state and local agencies are frequently slow to respond and sometimes ignore requests. The laws are frequently criticized as lacking enforcement outside costly court challenges.
Rebecca Snyder, executive director of the Maryland Delaware D.C. Press Association, which represents regional newspaper publishers, including The Daily Record, said many issues at the government level come down to records management on the part of the agencies.
“Custodians really need to make sure they prioritize the (Public Information Act) and make sure they are working in a way that information is retrievable and that we’re not going back and forth with so much attorney review,” said Snyder.
But other advocates say they believe some agencies look to find ways of discouraging access to records by the public, including requests from the news media and from indigent persons.
“There is a very significant percentage of requests that have come across the ombudsman’s desk that receive no response at all,” said Debra Gardner, legal director for the Public Justice Center, adding that because enforcement is not a strong component of the law “the culture among government entities is that compliance is optional.”
Included in the package is legislation to shorten the time a government agency has to respond to a request to 15 days. Currently, agencies have 30 days to respond.
Del. Michele Guyton, D-Baltimore County and sponsor of House Bill 42, said state and local governments need to think about document requests differently.
“We’re moving towards a digital age,” said Guyton. “We should be moving towards a system that makes this much more accessible to those agencies and those outside. Hopefully, as we try to get these agencies to focus on this as a priority, this issue will resolve itself.”
Snyder said other states have time frames that require records to be turned over as quickly as five business days. Maryland has a 30 calendar day requirement. The next closest to Maryland is about 20 days, she said.
“We’re not even within spitting distance of the next longest,” said Rebecca Snyder,
The bill is opposed by both the Maryland Municipal League and the Maryland Association of Counties, which say they will impose burdens on government agencies that already struggle to fill record requests on a timely basis.
“I think citizens would be harmed by this bill and transparency would suffer,” said Hilary Ruly, chief solicitor for the Baltimore City Law Department. “The easy requests aren’t the problem here, and you have to do them for free.”
Lawmakers also want to expand the roles of the Open Records Compliance Board to resolve disputes about records that are being denied. It also strengthens the role of a state ombudsman, created nearly five years ago to mediate disputes over records. The bill would also require agencies to proactively release documents and track requests and their dispositions.
Del. Brooke Lierman, D-Baltimore and sponsor of House Bill 502, said a 2019 report from the ombudsman that looked at caseloads and resolutions of cases provided “very clear recommendations on how to strengthen the compliance board and the ombudsman and also how to make more cost effect the (Public Information Act) through fulfilling the potential of both of those institutions.”
A third bill, sponsored by Del. Erek Barron, D-Prince George’s, gives the compliance board the authority to resolve disputes over fees of $200 or more, clarifies the definition of “public interest” and requires fee waivers under certain circumstances for requests made by indigent persons, inmates and the media. It also prohibits the Judiciary from redacting or coding judges names in open proceedings.
All three bills have been cross-filed in the Senate.
Associations for municipal and county governments say they have concerns about allowing the compliance board of the state ombudsman access to denied records as part of a third-party review or mediation.
Les Knapp, representing the Maryland Association of Counties, said current reviews of records, especially when they are required by law to be denied, could lead to liability issues and potential lawsuits.
“Right now when we have records when we could be liable for, that is done at the Circuit Court. A judge does it as a judicial officer in an in-camera review,” said Knapp. “That protects counties from liability concerns, particularly for mandatory denials.”