Survey shows unevenness of state and local record tracking

A one-month test of government agencies in Maryland revealed a patchwork of approaches in how public records are tracked and how requests for access are filled.

The Maryland-Delaware-DC Press Association filed requests in February for public information with 31 state agencies, counties, municipalities and school systems. The idea was to look at trends in the number of public records requests they received over a threeyear period and what effect the COVID-19 pandemic had, if any, on their responses.

Asked for their average response time each year in filling or denying Maryland Public Information Act requests — and whether it changed during the pandemic — only about one-fifth of the 31 government entities that MDDC surveyed provided a full answer, or data to easily figure out the answer.

Many said that they don’t track that information and that, by law, if a specific answer is not in an existing document, they are not required to provide an answer or create a document.

Responses demonstrated a range of government entities’ speed, record-keeping abilities, and willingness to gather data or otherwise look for answers.

Allegany County Public Schools sent back nearly complete answers to MDDC’s questions within 24 hours. By contrast, Harford County Public Schools said it would charge a nearly $700 fee to find and provide information.

The results of the MDDC study conducted in February and March align in many ways with findings of a state survey done in 2018 and 2019, at the direction of the Maryland General Assembly. One conclusion at that time was that “much of the reporting agencies’ quantitative data is incomplete.”

Maryland’s public access ombudsman, who mediates records disputes, and its Public Information Act Compliance Board, which rules on a limited number of disputes, conducted the survey.

That 15-month review of PIA records of 23 state agencies showed wide variations, based on scattered record-keeping:

• Some agencies reported that they got thousands of PIA requests; others said they received none.

• Several agencies said they hit the 30-day PIA response deadline 100% of the time. One said its rate was 43%. Nearly half of the agencies had no idea.

• Seven agencies couldn’t figure out how often they charged fees.

In the 2021 MDDC survey, done to coincide with Sunshine Week, an annual nationwide celebration of the importance of public information, only five of the 31 agencies could provide data on three years of response times. A sixth entity provided enough information for MDDC to easily calculate the answers.

Other entities provided bits and pieces. Some said it would take hours of research time, for which they would have to charge.

A few said their efforts to provide numbers would be hampered by the need to go through paper records.

Many jurisdictions and agencies said they’d need more time beyond the usual statutory deadlines to process the MDDC request, then didn’t respond further within 30 days.

At the 30-day mark, MDDC was still waiting on a final response from 10 out of 31 entities. That included two that didn’t reply at all, even to acknowledge receiving the request.

In addition to those 10 cases, MDDC declined to pay hundreds of dollars in fees that two school districts were charging.

A few entities responded to the MDDC inquiry by sending back spreadsheets documenting every request the jurisdiction had logged — but did not calculate the answers for average or longest responses.

The results of the MDDC survey provided little evidence about what effect the pandemic is having on records requests and responses. But the exercise shined a spotlight on uneven tracking and use of technology and, in several cases, unwillingness to provide answers if that can be justified by the letter of the law.

Maryland’s public access ombudsman, Lisa Kershner, said in an interview that the range of the responses and the gaps in answers in the 2018-2019 state survey and report showed a hodgepodge of approaches for PIA record-keeping and tracking.

“Agencies are not keeping data in any uniform or structural fashion,” she said.

The 2018-2019 report included recommendations for improvement, starting with consistency.

“We recommend that in order to obtain uniform, consistent and reliable information on PIA caseloads and dispositions,” the report said, “the legislature should specify the data agencies must track and report, and require agencies to publish this data periodically on their websites to the extent feasible.”

That type of documenting and tracking of PIA requests was a key element in two companion bills pending in the General Assembly. However, in early March, the record-keeping requirement in the bill was stricken as the bill ran into resistance.

HB 183 in the House, sponsored by Del. Brooke Lierman, a Baltimore Democrat, and SB 449 in the Senate, sponsored by Sen. Cheryl Kagan, a Montgomery County Democrat, propose several enhancements of the public records system.

The legislation would grant additional authority to the state’s PIA Compliance Board, giving it new review duties after other attempts to obtain public records fail.

Someone who is turned down for public records by a government entity could first go to the ombudsman for help, then to the PIA Compliance Board for a ruling, before having to go to Circuit Court, which is beyond some people’s means, Lierman said.

Also under the bill, government agencies must try to “proactively disclose information,” such as reports they already prepare, rather than wait for each time the public requests it.

As drafted, the legislation would have required all state and local government entities to keep data on requests they receive, outcomes, deadlines hit or missed, fees and fee waivers. But that reporting provision and a few other components were pulled out this month to ease the concerns of opponents.

Several state occupation boards and schools in the University System of Maryland testified against an early draft of the bill in February, saying it would be an extra burden for work and expenses. The University of Maryland, College Park estimated that meeting the bill’s “strenuous demands” would cost at least $775,000.

“While I hope in the future we can pass legislation to require more standardized reporting on PIA requests from different agencies,” Lierman said in a voice mail message, “I am happy that this bill is still moving forward, so that we can enforce the PIA in a more equitable manner.”

Kershner noted that government agencies still can keep thorough records if they choose. “No legislation is needed for agencies to improve their tracking,” she said.

Maryland’s Public Information Act requires an agency to respond to requests for public records within 30 days, and to give notice if the response will take more than 10 business days.

But Gov. Larry Hogan helped state agencies and local government bodies by giving them a break on deadlines. In a March 12, 2020, executive order, Hogan allowed any unit of state or legal government to suspend “any legal or procedural deadline” — not just for public records requests — until the 30th day after Maryland’s state of emergency ends.

Many state and local government entities cited that order in their responses to the MDDC requests, saying they can, and expect to, go beyond the 10-day or 30-day deadlines.

The six government agencies that provided complete information to MDDC (or enough data to calculate the answers) on average response times for three years were Caroline County, Garrett County, Allegany County Public Schools, Maryland Department of Transportation, Maryland Department of the Environment and Maryland Department of Planning.