Audit Reveals Problems with Access to Public Records

By Jim Lee
Carroll County Times

A test of state agencies has revealed that people seeking public records have about a 60 percent chance of getting what they are legally entitled to, and often they will face improper questioning about who they are, why they want the record and who they work for.

In response, J. Joseph Curran Jr., Maryland Attorney General, said his office will launch a new training initiative for state agencies.

"We've made recommendations and we'll follow through with our own training, and we'll offer to do training at each of the local agencies with our line people and the people who will be getting these [public record] requests," Curran said.

On Aug. 21, the Maryland-Delaware-D.C. Press Association's Freedom of Information Subcommittee sent reporters identifying themselves only as private citizens to 15 state agencies seeking a total of 25 public records. The committee chose public records that residents and businesses could reasonably expect to want and were legally entitled to get under the Maryland Public Information Act. Among them were the number of teachers who had their certification revoked, real estate property assessments, complaints against real estate appraisers, routine expense reports from public officials and restaurant inspection reports.

Among the findings:
* Requesters were denied records in 10 instances, or 40 percent of the time;
* A requester was denied a public record because it contained information about a state senator;
* With the exception of assessment records, which are available on line, no public agency would provide public records in electronic format.
* People seeking records often times had to answer questions concerning who they were, why they wanted the record and who they worked for, which is not permitted.

Facing interrogation
Surveyors seeking teacher decertification records, driving records and restaurant inspection reports were among those who faced rigorous questioning from state workers.

That type of treatment, although illegal, is typical, according to Lucy Dalglish, executive director of the Reporters Committee For Freedom of the Press.

"It does not matter who you are, why you want the record or what you are going to do with it," she said. "Public is public. I am always astonished at the number of people who cannot comprehend that."

The Reporters Committee For Freedom of the Press is a 33-year-old organization that advocates for free speech issues.
Dalglish said that, in most cases, the workers don't have evil intentions in making access difficult. Instead, she said, many simply aren't aware of the laws regarding public records.

"They get into more trouble for releasing a record they shouldn't than they do refusing to release a record they should," she said. "That's always going to be a problem."

Curran said part of the attorney general office's training will focus on that issue.

"It may well be that we just have to emphasize in a training situation that public records are available for review by the public," he said.

MVA fails again
A similar MDDC Press Association audit conducted in 2000 revealed that the state Motor Vehicle Administration routinely denied people access to driving records. As a result of the audit, the MVA pledged to provide training for workers to improve compliance.

The laws have changed since then, and some of the information that was available in 2000 is now closed. People can, however, still get a three-year driving record of an individual, and an MVA request form specifically notes that record as one that is releasable to anyone requesting it.

In this audit, two of three regional MVA offices denied requests for the information about a local official's driving record.
In one office, the person seeking the record was told that the "Maryland Privacy Act" forbids disclosure of the information. No such act exists.

In another office, the worker called up the record on a computer, but when he saw it belonged to a state official he refused to release it.

Tom Marquardt, Editor of The Capitol in Annapolis and Chairman of the MDDC Freedom of Information Subcommittee, said the two denials are particularly appalling.

"Here you have an agency that was forewarned by a study less than three years ago that proved the point that the MVA has to release these records," he said. "Yet when you have someone denying the record and saying it is part of the 'Maryland Privacy Act' when the act doesn't exist, it shows they are making this up as they go along and they haven't been educated." He said denying access to a public record because it is information about a state senator is even more egregious. "That's a cover-up," he said.

Maryland Department of Transportation Secretary Robert Flanagan said the law on access is clear, and the records should have been released.

"The effort to protect your local official is not the appropriate response," he said. "We need to evaluate the system and have a better result."

He said one solution may be to have specifically designated people who are trained in the law handle records access requests.
"If you let the person behind the counter deal with it, you're apt to get mistakes," he said.

Agencies doing it right
Not all agencies did as poorly in the audit as the MVA. Some provided documents quickly, assisting the requesters in locating what they needed without questioning them as to their motives or intentions.

A surveyor visiting the state Ethics Commission, for example, was led immediately to the files containing lobbyist disclosure forms.

Another was able to collect a relative's death certificate in a matter of minutes. Death certificates are among those records where access is limited to people with an interest, such as a relative.

Surveyors also visited Real Property Assessment offices in Salisbury, Hagerstown and Frederick. The assessments are available on-line to anyone with a computer and Internet access, but staff at the three offices quickly directed the requesters to terminals and helped them get the information they needed.

Marquardt said agencies that make information available on line are doing a tremendous public service. "I think those agencies should serve as a model for other agencies to follow so the access to public documents is simple and convenient," he said.

Robert McDonald, Chief, Opinions and Advice with the Attorney General's Office, said the audit showed that agencies that get a lot of public information requests do a better job responding than those that don't. "They knew the drill already," he said.

Attempts to get records from agencies unfamiliar with the law were less successful. The requesters were more apt to be shuffled to several people, and in some cases officials never responded to requests.

"Customer service is an important part of this," McDonald said. "I would think that one thing I would want to stress in the training is that people promptly and politely respond and let people know in a reasonable time frame whether they are getting the records or not."

Better late than never
Of the 10 records that were denied or that officials failed to follow up on within the 30-day limit allowed by law, six were received after the deadline or have been made available by state officials. Of those, four became available after the agencies were informed of the FOI committee's records access test.

They include a list of teachers who had their certification revoked last year, the latest inspection report from the Bay Bridge, complaints against real estate appraisers and on-site inspection reports from the Maryland Occupational Safety and Health office.

Joe Seidel, Public Information Officer at MOSH, said one request was referred to their computer specialist to see if a database of information was available. Another verbal request was never forwarded to him.

"Anything you wish to have from us, if you fax us or write us it will get to us and we will either talk with you or put it together for you, but if you talk to someone else that might not get relayed to me," he said. "There are times when they have to be delayed for various reasons, but most of the time we promptly get out the information."

Joanne Ericson at the certification office of the Department of Education said the information requested of her department should have been provided quickly.

"This is inexcusable because we do have this information available," she said. "I can only apologize. I do not know how we dropped the ball."

Bryon Johnston at the Maryland Transportation Authority said there was a delay on the Bay Bridge inspection report because it had to be checked for security, but said he was relatively new in the department and the person who is in charge was out.  "This one was a real touchy one, and once you give it out you can't get it back," he said.

The report was requested Aug. 21. It arrived Nov. 6.

Liz Williams at the Department of Labor and Licensing said a letter had been sent out to the requester stating that the records were available and that they would cost $5.75. A check for that amount was sent Sept. 30, but Williams said the agency never received any payment and the check has never been returned to the person sending it.

At the State Lottery Commission, all calls were referred to Assistant Attorney General Laura Davies Tilley. Tilley said she sent out a letter the day she got the request indicating that there were many complaints against lottery vendors and the request would have to be more limited.

"I wrote instantly," she said. "The minute it was handed to me I wrote it and resent it."

A more limited request was sent but the records, or a response from the agency, were not received as of Nov. 7.

Maryland Department of Environment spokesman Richard McIntire said he was unsure why a person requesting information about the state's Emergency Response Team was told no records existed.

"The request many not have been routed to the correct place," he said. He said he would check on how long the agency maintains files. No answer has been forthcoming.

Educational efforts
Marquardt said the next logical step is increased educational efforts at the state level.

"We felt a lot of progress was made on the county level after the county audit," he said. "The Maryland Association of Counties and Maryland Municipal League have worked with us to improve access to local records and we are hoping the state will work with us to provide the same education to state officials."

Training sessions put on by the Attorney General's office typically include media representatives and hypothetical situations that trainees discuss.

Additionally, the Attorney General's Web site has the presentation on line and available for downloading.

Curran said a change in state government with a new governor also brought along some new people to various offices, and that may have contributed to the low scores on the audit.

"Maybe they have never had a chance to address this issue before so it was never even thought to be something they should discuss," he said. "So now we will suggest that it should be discussed and we will bring it to their attention."

Dalglish at the Reporters Committee said that's a good first step, but some states such as Virginia have a public information commissioner who handles problems that arise regarding access to public records.

"If you are a citizen and having trouble you can call this person," she said. "You have to have an appeal process that is workable for the average person."

Jim Lee is the Editor of the Carroll County Times and a member of the MDDC Freedom of Information Subcommittee. Reach him at jimlee@lcniofmd.com.

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