Access Success Depends on You

According to my "high-tech" computer-generated data, you are making more use of your Maryland-Delaware-D.C. Access Hotline. Hotline use in 2000 was up about one third from the previous year, covering 31 matters. They consisted of 16 records questions, 11 meetings questions and four court access questions. As usual, however, the real news is behind the data.

In my experience with your hotline, two "attitude" issues seem to repeat themselves. All types of agencies, but especially police agencies, deny records requests without giving the reasons why, only citing a section of the Maryland Code and sometimes doing that incorrectly. In much the same mind-set, public bodies close meetings without fulfilling the requirements of the law, especially disregarding the requirement to explain why the meeting should have been closed. The goal of some "custodians" and municipal lawyers seems to be to find a "matching" code section to cite and be done with it. Access denied.

Maryland Public Information Act Section 10-614(b)(3) requires that a custodian who denies access to public records must do so immediately, and within 10 days give the applicant "the reasons for the denial" and the "legal authority for the denial." These two items are not redundant. The revised Maryland PIA manual lists the two items separately as well.

Section 10-618(f), the exception most frequently used by police, requires an exercise of sound discretion, not an automatic refusal. A law enforcement custodian, must have actually made a determination that the request should be denied as contrary to the public interest. The determination of whether disclosure of a record would be "contrary to the public interest" is in the custodian’s "sound discretion," to be exercised "only after careful consideration is given to the public interest involved." If the decision not to disclose a police record means that inspection of the record requested is contrary to the public interest, the custodian is required to explain the reasons for the denial and give a citation to the correct section of the Maryland State Government Code. Form refusals that merely paraphrase from the State Government Code are not sufficient.

In a very similar way and for identical reasons, the Maryland Open Meetings Law Section 10-508(d)(2)(ii) says a public body is required to make a written statement of the reason the meeting is closed, cite supporting law, and list the topics affected by these reasons and covered by this law. Again, these three items are not redundant. Using your Access Hotline, Gazette Newspapers’ Karl Hille got a post-Christmas response from the Open Meetings Compliance Board holding that meetings by the Prince George’s County Board of Education to discuss standards for hiring for particular classes of employees could not be closed under the personnel exemption to the law. Thinking through their reasons for closure, hopefully concluding that there were no good reasons, would have allowed the Board of Education to hold open meetings in these instances, rather than using "blind" citations.

As suggested by a November 2000 Open Meetings Compliance Board Opinion, "Before closing a meeting. . . a public body should think about the public perception and other implications of closing and whether a closed session is really necessary for the effective conduct of public business." A reason for closing and a topic require much more analysis than a mere citation to the Code.

It appears this is a widespread problem. In November, this column noted that the access hotline had gotten half a dozen calls complaining about meetings closed without following this subsection. Four recent Compliance Board opinions have focused on the failure to follow procedural requirements.

You may ask, if you will not get access anyway, why go to the trouble of demanding the reasons why the closure has occurred? There is at least one good reason. If the public agencies you cover know that you are aware of the laws requiring open government, that you will demand a clear and accurate explanation of why closures are taking place and records are being refused, and that you will publish their responses in your newspaper, then matters will be withheld from public view for reasons actually allowed by law and no other.

Follow-up from your newspaper is the ingredient most likely to make open government laws effective.

And, by the way, your Access Hotline is here to give you the help you need to make your protests. It is a free service of the press association. You should call (202) 298-7210 for access questions.