Ombudsman: Agencies should aim to respond to information requests

By: Heather Cobun Daily Record Legal Affairs Writer March 26, 2020

State and local agencies are adjusting to reduced in-office staffing and to remote work but are still receiving Maryland Public Information Act requests — which they may not be able to process.

PIA Ombudsman Lisa Kershner said her office has shifted to remote work amid the COVID-19 pandemic and is fielding questions and providing practical tips to other government agencies about how to handle records requests as everyone adjusts to “the new normal.”

“They’re encountering various obstacles and glitches and in some instances they may be unable to fulfill certain types of requests,” Kershner said of the agencies.

The ombudsman attempts to help records custodians and people making requests for information resolve disputes involving the Public Information Act.

On Monday, Kershner’s office released guidance to records custodians during the coronavirus outbreak, stressing that they should make good-faith efforts to respond and process requests that can be handled remotely.

“To the extent practicable, agencies should evaluate each incoming or pending request in order to respond as fully and promptly as it can and explain to the requester its inability to respond more completely or within statutory timeframes when necessary and as needed,” the office advised.

Kershner said she encourages agencies to do the best they can.

“So far, I have not had an agency tell me that they are simply not doing any PIA business, period,” she said. “I have not heard that response.”

A March 12 executive order from Gov. Larry Hogan permits the heads of government units to suspend legal or procedural deadlines if the suspension will not endanger public health, welfare or safety.

A spokeswoman for Hogan’s office said Thursday that the order allows an agency to modify PIA timelines and noted that most state employees are teleworking, which makes it difficult to compile responsive documents.

Custodians are generally expected to determine that a record is responsive and produce it immediately, or within 30 days if additional time is needed to retrieve and assess the record, according to a manual produced by the Maryland Office of the Attorney General. If it will take more than 10 working days to produce the record, the custodian must notify the requester.

In Monday’s guidance, Kershner recommended that agencies develop a standard response about COVID-19-related limitations to provide as requests come in. She also recommended that agencies let the requester know the agency will respond as quickly as possible and to explain why certain requests cannot be made.

Kershner said agencies should as a rule document their policies and procedures and any changes they make to adapt.

“I think … there will be procedural changes and maybe even some staffing changes and other changes that have to be made,” she said. “All of those kinds of decisions I would think are things they’re going to want to document.”

Maryland courts are currently closed to the public and are handling only specified emergency matters, which do not include PIA compliance actions. Kershner said her office was open for business to answer questions and provide information.

Kershner also said she expects there will be a surge in PIA requests about the coronavirus pandemic as citizens, businesses and the media seek information about how government agencies responded.

“Anything that is hitting the news turns up in my caseload, no matter what it is,” she said.

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