By JIM LEE
People visiting government offices in search of school
violence reports, routine police arrest logs or other public documents have about a
one-in-four chance of immediately getting what they are looking for.
Half the time they will get nothing.
And a lot of the time they will be quizzed about who they are, who they work for and why they want the record, even though that is a direct violation of the state's Public Information Act.
A June 15 audit of Maryland public record access conducted by 20 newspapers from across the state's 23 counties and Baltimore City revealed that public officials routinely deny public access to even the most basic records. Sheriff's departments were the worst offenders, denying access to routine arrest logs 74 percent of the time.
``In the states that have done these audits the police have always been the most resistant,'' said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. ``The police think they have some sort of immunity from complying with the law, but that's just about the worst response in any state I've heard of.''
Fourteen states have done similar open records audits.
The Access Maryland project was organized by the Freedom of Information subcommittee of the Maryland-Delaware-District of Columbia Press Association. In addition to the arrest logs, newspaper representatives were asked to get the driving record from the state MVA of the state senator in their district; the latest expense report for the sheriff from the county finance department or sheriff’s department; their school superintendent's contract and the latest school violence report from the school district; and a nursing home inspection report.
Among the findings:
Sheriff's departments or city police denied access to arrest logs 74 percent of the time;
County nursing home ombudsmen provided nursing home reports 74 percent of the time;
Police chief or sheriff expense reports were provided 68 percent of the time, excluding three instances where the finance department indicated that the chief did not file for expenses;
School officials provided copies of the superintendent's contract 60 percent of the time, and provided school violence reports 43 percent of the time;
MVA offices complied with state law and released the driver's record of senators -- minus personal information that is closed -- 47 percent of the time.
``What this audit proves is that the Public Information Act is not being followed as much as the Legislature would like to think,'' said Tom Marquardt, managing editor of the Annapolis Capital and chairman of the FOI subcommittee. ``We're looking for a reexamination of the PIA to see if elements of that law need changing or updating.''
Marquardt said the committee chose these particular records because it believed they were representative of information the public would want access to in the course of their lives.
``School documents mean a lot in regard to what school they place their children in,'' he said. People would also want to know if the police chief is claiming excessive expenses, or they would want to look at nursing home reports before deciding on where to place a loved one.
Maryland's Public Information Act was adopted in 1970. The act covers state government and, on the local level, all counties, cities, towns, school districts and special districts, and it applies to any records received or originated by a public body doing public business.
Legislators have been reluctant to look at open records issues in the past, Marquardt said.
``The Legislature believes it is a media bill or a media effort,'' he said. ``Our case is it's not. The public needs access to public documents. This audit shows that somebody in the general public coming in is going to be denied the document or harassed for asking for the document.''
While the state law includes many exceptions where records are closed -- such as an individual's medical history or work record -- people controlling public record access generally should turn over all other documents without question to anyone who asks for them.
In the Maryland audit, people attempting to get records were asked for identification 46 percent of the time and were required to provide identification 22 percent of the time.
Auditors were asked why they wanted the record 35 percent of the time and were asked who they worked for 18 percent of the time.
Even after providing that information, some auditors were denied the record.
A reporter in St. Mary's County was grilled about why she wanted an arrest log and then the officer denied the request, saying it was ``policy'' not to provide the information, a direct violation of the Public Information Act.
A clerk at the Hagerstown MVA office told the auditor he ``had to have a good reason'' to get the state senator's driving record, and then added that the auditor may want to rethink his request because the senator would be told that he had requested it.
Dalglish said most states have provisions in their Public Information laws that prohibit workers from asking personal questions of people requesting records.
``I find it offensive that someone would ask this information for something that is clearly open to anyone,'' she said. ``I think if I were in charge and had somebody on my staff requiring people to ask for identification, I think I would discipline that employee.''
Across the country public officials are shutting citizens out of the governing process and, at the same time, are complaining about the fact that no one votes and no one wants to get involved, said Paul McMasters, First Amendment Ombudsman at the Freedom Forum.
``The citizens who pay the bills are regarded as nuisances,'' he said. ``Life is easier if you don't have to be accountable.
``If we had 50 percent compliance with the law in any other area of government operations there would be a justifiable outcry from the citizens. But too often public officials are scofflaws when it comes to open meetings and open records.''
Many of the people asking why the information was wanted may simply have been curious, and compliance problems can often be reduced with training programs, said Frosty Landon, executive director of the Virginia Coalition for Open Government.
The Coalition formed in 1996 as an effort to convince legislators to update Virginia's open records law. A 1998 open records audit performed by 14 newspapers and the Associated Press in Virginia helped push reforms along.
``A lot of folks in government don't purposely violate the law,'' Landon said. ``They just don't understand it.''
Indiana was the first state to perform a public records audit. Seven newspapers combined forces in April, 1997, in an effort that revealed similar widespread abuses of public records laws.
Kyle Neiderprum was a reporter on the project. Now an editor at the Indianapolis Star and president of the Society of Professional Journalists, Neiderprum said the Indiana project prompted substantial reform in the Hoosier State.
``There was a governor's task force and there was a legislative committee, and some of the stories citizens came up with were more outrageous than the ones we came up with,'' she said.
Marquardt said intervention from the Attorney General's office or the Governor's office would help push reform in Maryland, but more immediately he hoped the audit would be a wake-up call for public officials and people in charge of public records.
``At the minimum we would hope for greater compliance with the current law,'' he said. ``Fifty percent compliance is not satisfactory.''
Seventeen sheriff's departments denied access to routine arrest logs; seven departments granted the request either immediately or after a delay. One auditor's results were deemed not applicable because the reporter did not follow up the request.
``One of the reasons we are an open society is because we know who the government has in custody,'' said Dalglish of the Reporters Committee for Freedom of the Press. ``It just blows my mind the audacity people have in telling you you can't have the information.''
Excuses for the denials ranged from the officer in charge saying arrest logs were not public to others who said only ``privileged people'' could see the record.
In Anne Arundel County, senior Assistant County Attorney Julie T. Sweeney responded to a written Freedom of Information request with a one-page letter stating she needed to know why the auditor needed the arrest log so she could ``determine if you are a person-in-interest under the Public Information Act.''
The person-in-interest clause only applies to certain personnel records, not general arrest logs. An opinion referenced in the Seventh Edition of the Public Information Act Manual, which is compiled by the office of the state Attorney General, states ``arrest logs are public records.''
Dalglish said Sweeney's letter shows her lack of knowledge of the law.
``That is, obviously, it sounds to me like the person has never read the statute,'' she said. ``I think the county should get a new county attorney who can read the statute.
``That's the mark of a totalitarian state when they don't tell you who they have in custody,'' she said.
Sweeney admitted she hadn't read that opinion, but defended her belief that someone requesting the record would have to have a good reason.
``I look at each request individually and I would need to know why you want it and that is counterbalanced,'' she said. ``I don't know whether or not our logs contain medical information, which is private, or personal information, which is private.'' She added that the agency had not denied the request, but had only sought additional information.
Marquardt said the law is clear on arrest logs.
``If you have somebody in charge of enforcing the law they should be cognizant of the law,'' he said.
McMasters said police want citizens to help them through Neighborhood Watch programs, and secrecy such as this only erodes public confidence and the agency's credibility.
``Law enforcement tends to be the worst about providing information and, arguably, the records they have are some of the most critical that people should have access to,'' he said. ``What it comes down to is this: if public officials don't trust the people with public information, then how well are the people going to trust public officials?''
Landon said he believes police deny information because that is the way they conduct their daily routine.
``I think it's a mindset there,'' he said. ``They have to conduct so much of their work secretly to solve crimes that it is just ingrained.''
Training helps, but not all sheriff's offices were as evasive as Anne Arundel County. The sheriff in Queen Anne's County noted that no one had ever asked for an arrest log before, then promptly produced the document. He even took the time to explain the entries.
Sheriff Charles Crossley said later that he didn’t see the big deal about releasing information that people could get by simply walking over to the courthouse.
``You try to serve the public, and if individuals have questions about things why give them a hassle?’’ he said.
The best compliance rate in the survey came from attempts to gain access to state nursing home inspection reports.
The report was turned over either immediately or after a short delay 14 times. Two auditors were referred to a state Web site or their local library for the reports, and in two counties the nursing home ombudsman did not return repeated telephone calls. One agency said the county did not have an ombudsman.
Dalglish said the higher compliance rate may be attributable to the ombudsman, who is directly responsible for the records, or it may be because those are records that more people are seeking.
``I would guess that a lot of normal people have asked to look at those over the years so it has become routine,'' she said. ``If I was looking at homes to put a family member in that's one of the things I would want to look at, their inspection report.''
Marquardt said that in most instances nursing home ombudsmen tried to be helpful.
``The law set it up so that the ombudsman would help the public obtain information and those people took it in earnest,'' he said.
Overall the auditors received better treatment from nursing home ombudsmen than from any other public officials. A reporter in Calvert County got a nursing home report in eight minutes from a receptionist who added, ``Have a nice day'' as he was leaving.
In Kent County, the nursing home ombudsman not only provided the requested report, but also her home telephone number in case the auditor had any questions later.
In Bel Air, however, the nursing home ombudsman quizzed the reporter on why the records were needed and could produce only a 1997 inspection report. The ombudsman suggested the reporter visit the library, the state Web site or the nursing home itself for the latest report.
Sending people to the nursing home or to the public library isn't serving the public interest, Marquardt said.
``If you know which nursing home you want to put your parent in, that makes a lot of sense,'' he said. ``But if you have five or six and can't decide, then you need to go to one place and get an unbiased report on all of them.''
Auditors who went to local libraries or checked the state web site found that the records available were sparse and incomplete.
``There needs to be stronger checks and balances to make sure they are accurate and up-to-date,'' Marquardt said.
POLICE CHIEF/SHERIFF EXPENSE REPORTS
Expense reports filed by public officials are among the most basic records that should be readily available, Marquardt said. Still, auditors requesting this document were successful in only 13 counties.
In three counties the auditor was told that the sheriff did not file an expense report.
``If a person wants to know if the police chief is abusing expense reports he should be able to access those reports,'' Marquardt said.
The auditor in Prince George's County was directed to the county finance office and then to the documents library, where the librarian took down the information he wanted and in a matter of minutes returned with the desired record.
Baltimore City officials, by contrast, first required the auditor to submit a request in writing and then took three weeks to respond with a one-paragraph letter signed only ``Associate Legal Counsel,'' saying the request was not specific enough. The auditor again asked for the latest expense report filed by the police chief and three more weeks passed before the city managed a three-sentence response.
``We are in receipt of your letter but unfortunately we are unable to comply with your request at this time. We are in need of more information [sic] could you please clarify the term `Expense Report of the Police Chief.' Please provide for us the specific type of report you are requesting.''
As with the first response, no name appeared at the bottom of the letter. But the author did take the time to sign it ``Custodian of Records.''
Baltimore City was the only government agency that said the request was unclear.
SCHOOL VIOLENCE REPORT AND SCHOOL SUPERINTENDENT CONTRACT
Auditors were able to obtain copies of their school superintendent's contract in 12 counties and copies of school violence reports in nine counties.
A school superintendent's contract is another example of a public record that should be readily available, Marquardt said.
``Every school superintendent and every person who works for a school superintendent should know this is a public record,'' he said. ``There is just no gray area.''
The lower compliance for school violence reports, he said, is not unexpected because the report is relatively new. The report does not include names or other identifying information, but does provide detail as to the number of violent incidents occurring at the school. School systems need to anticipate the kind of information parents might be looking for and have it ready, Marquardt said.
``They should also make sure parents know it is available,'' he said.
In Washington County, however, it took the auditor five days, many phone calls and several trips to the school administration before finally getting the report. In that time, he was shuffled from office to office and person to person before being helped.
``That's unreasonable,'' Marquardt said. ``What they need to do is put themselves in the place of an individual looking for a document. Would they want to wait five days or be harassed?''
Any business that told customers they would have to wait five days for something that should be readily available would not be in business long, he said. And government needs to act more like a professional business.
``They need to know that customer interests are the most important,'' Marquardt said.
An auditor seeking the records in Anne Arundel County was greeted by a security guard and taken to an office where the head of security quizzed him about why he wanted the record, then said it was not public.
The head of security said the school wasn't trying to be uncooperative, but merely that there had been death threats against the superintendent.
``We just get nervous,'' he told the auditor. ``Not that we have anything to hide.''
At Prince George's County the auditor seeking the superintendent's contract was told to write a letter to the school board chairman and, when the auditor asked how long it would take, a secretary replied that ``it would take as long as it would take to get to it.''
Marquardt said that attitude is unacceptable for a public servant.
``At the very minimum the superintendents who are in office now ought to educate their staff that if anybody comes in they should be shown the contract without delay and without the person having to present identification or say why they want the record,'' he said.
As with the other records, some counties responded better than others. In Carroll County, for example, public information specialist Carey Gaddis called the superintendent to ask if the contract was public and then accompanied the auditor to the human resources department, where a copy was waiting by the time they arrived.
``I like to think that we’re a system with nothing to hide, and anyone who wants something, within reason, can have it,’’ Gaddis said later.
Carroll’s school system has been embroiled in controversies for more than two years. A grand jury is investigating cost overruns and questionable bidding of some construction projects, and an independent investigation revealed widespread problems.
Superintendent William Hyde this month announced he would retire effective Sept. 1, just two years after taking the system’s top post.
Gaddis said that despite the problems, the public’s needs must be served.
``I try to operate under the assumption that, unless it’s personnel-related or personal information about a student, most everything else is public information,’’ she said.
``My philosophy is be open always, tell the truth, because no matter what, the media will always find out, and it is going to be twice as bad if they find out after you tried to keep it secret,’’ she said. ``You can’t go wrong by telling the truth and by being open an honest.’’
State and local officials will have to take the initiative in improving records access in other areas, Marquardt said.
``The Governor is the leader of the state and any initiative he takes is going to be appreciated by every citizen of Maryland,'' he said. ``They look to him to set the pace.''
Repeated requests for comment from Governor Parris Glendening, through his press office, went unanswered.
Marquardt said Attorney General J. Joseph Curran Jr. has agreed to sit down with the FOI committee to discuss the results, and a representative of the AG's office will talk at the press association's summer convention next week.
``[Curran] has been fair and open with the media,'' Marquardt said. ``His track record shows he will keep an open mind and, if there is something the state can do to become better compliant, Joe Curran will step in and do it.''
In Indiana, the governor signed an executive order creating a task force that eventually led to the appointment of a public access counselor where people could take complaints.
SPJ President Neiderprum said that, overall, legislators in Indiana responded well to the audit, but they didn't go as far as some people wanted.
``One thing we gave up on because we found out they weren't going to go for it was penalties for officials who fail to comply,'' she said.
In Illinois, where a similar audit revealed officials denied access to public documents about 25 percent of the time, the House passed legislation giving the Attorney General and local prosecutors the authority to overrule denials. The bill is now in the Senate.
In Pennsylvania, an audit by 16 newspapers revealed officials denied access a third of the time. Afterward a senator introduced sweeping legislative changes.
Dalglish said the Reporters Committee for Freedom of the Press tracks the audits and results.
``In every state that has done this there has been a swift response from the Legislature,'' she said. ``[The audits] show us that these open records laws we have are really taken for granted.''
She said Maryland’s 50 percent compliance indicates deep-rooted problems.
``It reflects to me kind of a statewide bureaucratic secrecy culture, and it reflects to me that little effort in recent years has been put into open government.''
Marquardt said the MDDC Freedom of Information subcommittee has put effort into making records more accessible, it's just that legislators haven't been listening.
``Several years ago we went before the Legislature to suggest the Public Information Act was insufficient,'' he said. ``They said no. We decided to go out and test it, and this audit proves it is not being followed as much as the Legislature would like to think.''
Both Dalglish and McMasters at the Freedom Forum said the records sought in Maryland's audit were basic and should have been handed over quickly. McMasters said people are understandably concerned about giving out their personal information these days, but this audit contained no records that included personal information.
``It makes no sense for the government to hold all these records without sharing them with the people who paid for them in the first place,'' he said. ``If we insist on calling ourselves a democracy, then we have to act like it.
``These records are ways that the citizens can measure how well their state is doing, how well their tax dollars are being spent, how safe their kids are at school. Why wouldn't public officials want to share that information?
``It's like a doctor coming in and not being able to look at the chart at the end of the patient's bed,'' he said. ``It doesn't make sense.''
Jim Lee is editor of the Carroll County Times and a member of the MDDC Freedom of Information subcommittee. Reach him at 410-857-7878 or e-mail him at jimlee@lcniofmd.com
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