PIA Blog – Open Matters
Welcome to Open Matters, the blog of Public Access Ombudsman Lisa Kershner. Ms. Kershner was appointed as Maryland’s first Public Access Ombudsman by the Maryland Attorney General for a four-year term. Since opening the Office on March 30, 2016, Ms. Kershner’s primary activity has been to help PIA requestors and responding agencies resolve PIA issues voluntarily through constructive dialogue and practical problem-solving.
Open Matters is intended to serve as a vehicle for the Ombudsman to share information about open records in Maryland. She welcomes suggestions for posts from public information officers, administrators, and members of the public about improving PIA practices across the State.
On September 24, 2021, the Ombudsman submitted the annual report of her office, as an appendix to the PIACB 6th Annual Report, to the Legislature. Below is an excerpt that discusses lessons learned during the State Emergency of the Covid-19 pandemic. Her entire report can be found at https://www.marylandattorneygeneral.gov/OpenGov%20Documents/PIACB/AnnualReportFY2021.pdf in Appendix C.
Other Takeaways from the Pandemic: Some other trends drawn from the Ombudsman’s caseload and experience over FY 2021 include:
- Those agencies with efficient electronic records management systems, trained staff, and established procedures for handling PIA requests fared better than those that did not have these resources or processes in place at the start of the pandemic. The Ombudsman’s data suggests that many agencies were ill-equipped to respond to PIA requests during the pandemic.
On September 24, 2021, the Ombudsman submitted the annual report of her office, as an appendix to the PIACB 6th Annual Report, to the Legislature. Below is an excerpt that discusses lessons learned during the Covid-19 pandemic. Her entire report can be found on the Board’s website posting of its report in Appendix C.
In March 2020, the Governor declared a state of emergency in Maryland due to the Covid pandemic, and it remained in effect throughout FY 2021. During this time, the Ombudsman program has operated almost entirely remotely, as have many of the state and local government offices with which the Ombudsman works to resolve PIA problems and disputes. The Ombudsman’s data demonstrates that while there have been a number of shifts in the mediation caseload and length of time required to conclude mediations, the overall need for access to public records during the pandemic did not diminish.
The General Assembly considered several PIA-related bills this session, but only two passed both chambers and went on to become law. This is the second of two blog posts dealing with legislative changes to the PIA during the 2021 session. The first post concerned certain changes to investigatory and other records related to police misconduct (SB 178) and can be found at https://news.maryland.gov/mpiaombuds/2021/06/07/2021-legislative-changes-to-the-pia-two-part-series/. This post deals with the changes to the expanded jurisdiction of the PIA Compliance Board and its interaction with the Public Access Ombudsman beginning July 1, 2022 (H.B. 183).
2021 Md. Laws, ch. 658 (H.B. 183):
This bill, which passed both chambers unanimously, expands the role of the PIA Compliance Board (“Board”) and provides a system that better integrates the work of the Public Access Ombudsman (“Ombudsman”) and Board. Currently the Board has narrow jurisdiction to review only allegations that a custodian charged an unreasonable fee higher than $350. The Ombudsman has jurisdiction to mediate a much wider range of PIA disputes, but participation in the program is purely voluntary and the Ombudsman has no enforcement authority. The Ombudsman and Board generally work independently of one another under the current system; though at times the Board’s consideration of a complaint will be deferred where a complainant has other issues in mediation in an attempt to resolve all disputes—including the fee issue—via mediation. (more…)
The General Assembly considered several PIA-related bills this session, but only two passed both chambers and went on to become law. One, which makes changes to the treatment of records related to investigations into police misconduct, was vetoed by the Governor while the General Assembly was still in session, thus permitting the General Assembly to override the veto. The second bill, which makes changes to the extra-judicial dispute resolution process, passed both chambers unanimously and became law in early June. This blog post provides a summary of the major changes made by the new law regarding investigatory records of police misconduct. A second post explaining the coming changes to the extra-judicial dispute resolution process will follow in a couple of weeks.
2021 Md. Laws, ch. 62 (S.B. 178)
This bill, enacted over the Governor’s veto, was part of a package of police reform bills passed this session. Currently, investigative records relating to police misconduct are considered personnel records and thus the PIA mandates that they be withheld from inspection. See Md. Code Ann., Gen. Provisions (“GP”)§ 4-311; Maryland Dep’t of State Police v. Dashiell, 443 Md. 435 (2015).
The new law removes these records from the ambit of GP § 4-311 and instead classifies them as investigatory records subject to discretionary withholding under GP § 4-351. This means that a custodian may deny inspection if disclosure would be “contrary to the public interest.”
The “PIA” guarantees governmental transparency by requiring State and local government agencies, upon request, to allow for the inspection of their records “with the least cost and least delay,” subject to certain exceptions for confidentiality, privacy, and privilege.
The General Assembly, in 2015, created two independent options for resolving PIA disputes without the need to go through the expensive, time-consuming, and often complex court process. The first option is the Office of the Public Access Ombudsman; the Ombudsman tries to resolve all kinds of PIA disputes, but can only do so on a voluntary and non-enforceable basis. The second option is the PIA Compliance Board, an administrative board that can review and issue a decision on a PIA dispute, but only if the dispute is about a fee greater than $350.
HB 183 strengthens the PIA and enhances transparency and good government by providing both agencies and requesters with a more accessible and practical extra-judicial dispute resolution process. The bill is based on recommendations for improvements to the PIA made in a joint report published in 2019 by the Ombudsman and the Compliance Board. The report was required by the General Assembly, and was informed by careful study and the experience of the Ombudsman and Board with the current system. In particular, the bill expands the jurisdiction of the Compliance Board to review and decide a wider variety of PIA disputes, including allegations that access to records was improperly denied or that a request was vexatious, frivolous, or made in bad faith—but only after the parties first attempt to mediate the dispute. Now more than ever, there is a real need for transparency in government and an effective dispute resolution process.
Link to the Ombudsman’s written testimony to support HB 183.
Link to the PIA Compliance Board’s written testimony to support HB 183.
The Maryland Public Information Act (“PIA”) provides access to government records of all kinds, but it also protects certain records and information under both its own provisions and under the provisions of other laws. There are five categories of exceptions to the general rule of disclosure, specifically:
- Part I: Mandatory, Other Law
- Part II: Mandatory, Specific Records
- Part III: Mandatory, Specific information
- Part IV: Discretion of Custodian
- Part V: Withhold under Special Court Order
In this blog post, we briefly explain discretionary exceptions to the PIA, and more specifically the Investigative Records, exemption Md. Code, General Provisions Art. (“GP”), § 4-351. This is the first in a series of blog posts about some of the specific discretionary exemptions.
Under the PIA, records should be disclosed unless there is a specific exemption that prohibits disclosure of a specific record. The PIA also favors allowing inspection of a record over withholding the record when there is a discretionary exemption that might apply. Section 4-343 allows the custodian of the record to deny inspection of a part of a public record under (more…)
The Maryland Court of Appeals has adopted new Rules that govern access to judicial records. The Rules, found in Title 16, Chapter 900 of the Maryland Rules, take effect on August 1, 2020. They can be found at http://news.maryland.gov/mpiaombuds/courtrules080120/.
The new Rules cover all judicial records and break them down into five categories: notice records, administrative records, license records, case records, and special judicial unit records. Rule 16-902(c). The new Rules establish the exclusive method to access judicial records. Rule 16-901. They also establish the exclusive method to resolve disputes over access. Rule 16-931. That means neither the Public Access Ombudsman nor the PIA Compliance Board has any jurisdiction to resolve disputes involving judicial records. Rule 16-931.
The Maryland Public Information Act (“PIA”) provides access to government records of all kinds, but it also protects certain records and information under both its own provisions and under the provisions of other laws—including other Maryland laws and the Maryland Court Rules. This is true when it comes to various kinds of criminal law enforcement and criminal justice records. In this blog post, we briefly describe how the PIA—and other relevant laws—treat these kinds of records.
Grand Jury Records
Generally, the circuit court’s files and records pertaining to criminal investigations must be sealed and may only be disclosed by order of the court. This means the court must protect all of its records relating to criminal (more…)
In March, when it was apparent that the covid-19 pandemic would severely impact all levels of society for the foreseeable future, the Ombudsman published guidance to agencies that emphasized a reasonable and good faith approach to PIA responses given the limitations and burdens placed on governmental operations. You can read that guidance here.
Among other suggestions, the Ombudsman recommended that agencies evaluate each incoming PIA request and, to the extent feasible, promptly respond to those that could be handled remotely. For requests that could not be handled readily and/or within the statutory timelines, the Ombudsman suggested that agencies explain to the requestor the limitations on the agency’s ability to respond to and provide assurances that the agency would respond as soon as it was able to do so.
The Maryland Public Information Act (“PIA”) works best when members of the public can easily find out where to send PIA requests, and who those requests should be addressed to. Similarly, government agencies can best manage their PIA responses when they have a clearly-identified point person who receives PIA requests and knows what to do with them. That’s why the PIA requires all State and local government agencies to designate an agency PIA contact and to post that person’s name and (more…)
Q. Does the Public Access Ombudsman have any guidance for State and local governmental custodians about dealing with PIA requests and PIA deadlines in the current COVID-19 crisis?
A. Although we can’t say for sure, under the novel circumstances facing many State and local agencies, it is possible a court, if faced with a challenge to a particular agency’s untimely PIA response, would interpret the statewide declaration of a state of emergency—and the attendant staffing and operational limitations—as providing leeway with regard to PIA timelines.
Of course, an agency should still make good faith efforts to respond to all PIA requests, and should respond promptly to those that can be handled readily and/or 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 requestor its inability to respond more completely or within statutory timeframes when necessary and as needed.
HERE ARE SOME PRACTICAL IDEAS YOU MIGHT CONSIDER. (more…)
This year marks the 50th anniversary of the Maryland Public Information Act. The “PIA” guarantees governmental transparency by requiring State and local government agencies, upon request, to allow for the inspection of their records “with the least cost and least delay,” subject to certain exceptions for confidentiality, privacy, and privilege.
Public records have changed a lot in 50 years, as government at all levels transitions into the digital age. But the core right guaranteed by the PIA — the right of citizens to know what their government is up to — has not.
In an effort to better secure this right, the General Assembly, in 2015, created two independent options for resolving PIA disputes without the need to go through the expensive, time-consuming, and often complex court process.
The first option is the Office of the Public Access Ombudsman; the Ombudsman tries to resolve all kinds of PIA disputes, but can only do so on a voluntary and non-enforceable basis. The second option is the PIA Compliance Board, an administrative board that can review and issue a decision on a PIA dispute, but only if the dispute is about a fee greater than $350.
For this blog, the Public Access Ombudsman is reprinting the latest edition of For the Record, the records management newsletter for the State of Maryland, published by the Maryland Department of General Services (DGS) and the Maryland State Archives (MSA). This issue provides information about the relationship between Records Management and the PIA.
Thanks go to DGS and MSA for an informative start to the New Year!
The Public Information Act Compliance Board is holding its annual meeting at 1 pm on Monday, August 19th at 200 St. Paul Place, Baltimore, Maryland 21202. In advance of the meeting, we wanted to highlight some of the Board’s most pertinent opinions about PIA fees, roughly categorized by key topic (PIA fees are currently the only matter within the Board’s jurisdiction). You can find more information about the Board, including a link to all the Board’s opinions, here.
An agency fee may include amounts charged by contractors who assist in the agency’s PIA response, but those charges must actually be attributable to the response. For example, on one hand, an agency that has a flat annual/monthly rate with a vendor—regardless of the amount of work performed—arguably would not be incurring any additional costs from that contractor to respond to a PIA request, and so should not include the contractor’s charge. See PIACB 17-18 (Aug. 31, 2017). On the other hand, an agency may seek to recoup the cost of a contractor who charges by the hour for work actually performed. See PIACB 16-03 (Mar. 21, 2016); PIACB 19-01 (Sept. 24, 2018).
An agency may not indirectly collect a fee from a contractor who directly sells public records to a requestor, unless the agency can show how the fee it collects is reasonably related to its actual costs in providing the requested information to the contractor. See PIACB 19-12 (Aug. 7, 2019). (more…)
Did you know that the PIA Compliance Board and Public Access Ombudsman were requested this year by the Chairmen of the Senate Budget and Taxation Committee and House Appropriations Committee to collect PIA compliance data from 23 state agencies, and to report out recommendations on ways to improve the PIA process? To see the Joint Chairmen’s request—called a “Committee Narrative” request— visit http://news.maryland.gov/mpiaombuds/committeenarrative2019/.
As a first step in this research, we asked the agencies to complete qualitative and quantitative surveys. To see the survey instruments, click on the links below.
The Ombudsman and PIACB will be providing an update concerning the status of their work on the Committee Narrative project at the upcoming PIACB Annual Meeting on Monday, Aug. 19th from 1:00 p.m. – 3:00 p.m. at 200 St. Paul Place in Baltimore City (16th Floor Assembly Room in the OAG Office). Anyone interested in the work of the PIACB and Public Access Ombudsman, the PIA, or open government generally are welcome and invited to attend.
If you plan to attend, please RSVP to Janice Clark, program Administrator, at email@example.com/.
And if you want to submit comments regarding the Committee Narrative Project, now or in the future, please feel free to do so via email (with “PIA Report Comment” in the subject line) to firstname.lastname@example.org.
Stay tuned to this blog for more PIA news!
~This article was submitted by the Office of the Public Access Ombudsman to the Office of the Public Defender Post Conviction Newsletter – Summer 2019.
Tips from the Public Access Ombudsman’s Office
The Office of the Public Access Ombudsman receives many requests from incarcerated persons who are trying to obtain materials pertaining to their underlying criminal case. They often have contacted several agencies—including local police departments, state’s attorney’s offices, and the court where the case was tried—seeking “all records” pertaining to a particular case.
While the Public Information Act (“PIA”) allows this type of “global” request for case records, it may be frustrating for both the requestor and the agency. These types of requests can be time-consuming and labor-intensive for the agency, possibly leading to high fee estimates and lengthy waiting times for the requestor, because the agency has to retrieve old files and review the entire record for privileged or confidential material.
This article provides tips and guidance for making more efficient requests for case records from law enforcement agencies, hopefully reducing the frustration on both sides.
- Specify the particular document or type of document you want from the case file (see examples of records, below). If at all possible, don’t request the entire case file.
- Always include your full name, case number, year (or date) of trial, and disposition. Provide as much information as you can.
- Write “PIA Request” at the top of your letter/request and on the outside of the envelope.
- Check with your attorney first—they may have the records you want. If your trial attorney was an Assistant Public Defender, or was assigned by the Office of the Public Defender (OPD), you can submit a PIA request to the OPD and obtain your case records without charge.
- Be patient. Especially if you are requesting records from an older file or a file which is large or complex, it may take time for the agency to locate, retrieve, and prepare your records.
Periodically, the Public Access Ombudsman receives questions from both agencies and requestors about the procedures surrounding Maryland Public Information Act (PIA) requests and responses. Below is one such question and answer that the Ombudsman’s Office thinks may be of value to all PIA stakeholders.
**The advice given is not legal advice nor is it a binding legal opinion.
Q. I write with a query about calculation of costs for the PIA that I do not believe is addressed in the Office of the Attorney General’s PIA Manual. From time-to-time, our agency receives multiple requests for the same information over a certain period of time. In those instances, if we end up charging a fee to the first requestor and that requestor pays, what would be a “best practice” for the (more…)
The Office of the Public Access Ombudsman (“Office”) would like to inform you that interpretive regulations we circulated this spring have been adopted as of June 17, 2019. We invite you to review the regulations in the current issue of the Maryland Register at the following link, http://www.dsd.state.md.us/MDR/4612.pdf, or on the our website at https://news.maryland.gov/mpiaombuds/wp-content/uploads/sites/20/2019/06/Regs061719.pdf.
The Office was created in 2015 to “make reasonable attempts to resolve disputes between applicants and custodians relating to requests for public records” under the Public Information Act (“PIA”). Md. Code Ann., General Provisions (“GP”), § 4-1B-04(a). The statute does not specify any particular dispute-resolution process, but does ensure the independence of the Office and the confidential and voluntary nature of the program. The regulations are an outgrowth of the Office’s institutional and programmatic experience during its three-year history, and are intended to clarify and explain the Office’s role and processes within the existing statutory framework. It is hoped that the regulations will better manage the expectations of parties who interact with the Office, and will make the Ombudsman’s mediation work more efficient and intelligible.
Thank you to all who commented on the regulations. Your insight was invaluable.
On December 30, 2016 the Public Access Ombudsman published the Report Concerning the Howard County Public School System’s (HCPSS) Handling of Requests under the Public Information Act, which was required by HB 1105—legislation passed earlier that year. One of the key themes from that report was:
“Open and forthright communication is essential to a relationship of trust and confidence between the government and the community it serves.”
This message is central to a successful PIA response program. When PIA requests are ignored or otherwise mishandled, public trust and confidence in government erodes. The Ombudsman’s experience with over 200 Maryland agencies confirms this reality; diminished public trust ultimately requires more staff time because it complicates the PIA process.
Increasing public confidence in the integrity, validity, and effectiveness of the PIA as an instrument serves an agency’s interests. So, how can your agency do that? Below are some ideas.
Err on the Side of Disclosure
Just because you can deny a PIA request, doesn’t mean you should. It’s worth keeping in mind that agencies always have discretion to withhold or produce information (more…)
The Office of the Public Access Ombudsman (“Office”) would like to inform you of the interpretive regulations it has proposed to govern the Office’s operations. We invite you to review the proposed regulations in the current issue of the Maryland Register at the following link, http://www.dsd.state.md.us/MDR/4607/Assembled.htm#_Toc4491557, and submit any comments by April 29, 2019.
The Office was created in 2015 to “make reasonable attempts to resolve disputes between applicants and custodians relating to requests for public records” under the Public Information Act (“PIA”). Md. Code Ann., General Provisions (“GP”), § 4-1B-04(a). The statute does not specify any particular dispute-resolution process, but does ensure the independence of the Office and the confidential and voluntary nature of the program. The proposed regulations are an outgrowth of the Office’s institutional and programmatic experience during its three-year history, and are intended to clarify and explain the Office’s role and processes within the existing statutory framework. It is hoped that the regulations will better manage the expectations of parties who interact with the Office, and will make the Ombudsman’s mediation work more efficient and intelligible.
You may send comments or questions to Janice Clark, Administrative Officer, Office of the Public Access Ombudsman, by email: email@example.com; by mail: 200 St. Paul Place, 25th Floor, Baltimore, MD 21202; by phone: 410-576-7033; or by fax: 410-576-7004. We look forward to hearing from you.
It’s sunshine week and the Ombudsman has some light to shed on Maryland’s Public Access Ombudsman program. On February 25, 2019, the Ombudsman’s office disseminated a stakeholder survey to nearly 950 people who have participated in either Ombudsman mediation or PIA training, or who have otherwise interacted with the Ombudsman’s office. The recipients included PIA custodians, agency attorneys, PIA requestors, PIA advocates, and others. After just a couple weeks, we received 132 responses that have provided insight on some of these stakeholders’ experiences with the Ombudsman program.
- The respondents were split almost evenly between requestors (47%) and agency staff (53%).
- The largest category of respondents was agency custodians at 39%.
Additionally, we are still collecting responses. At this point, we want to emphasize two things:
- The survey is still available to take on line. Visit https://goo.gl/forms/niyRoECeAWNrK3Kf2 to provide your input on the Public Access Ombudsman program. See it as an opportunity to have your voice heard.
- We will shortly send the survey to persons who are incarcerated, so our preliminary results do not yet include those requestors. Of 450 requestors who have contacted the Ombudsman’s office over nearly 3 years of operation, 23 percent of them are incarcerated. As a general rule these requestors do not have access to the internet or email, so we are sending the survey to these requestors via regular mail.
The central purpose of the Public Information Act (“PIA”) is to provide access to information about the affairs of government. To achieve this, the PIA requires agencies to disclose public records—that aren’t otherwise exempt—“with the least cost and least delay to the person or governmental unit that requests the inspection.” Md. Code, General Provisions Art. (“GP”), § 4-103 (b).
In furtherance of this goal, the PIA establishes a series of deadlines ensuring that agencies respond to a request “promptly, but not more than 30 days after receiving the application.” GP § 4-203. And if an agency expects that it can’t fully respond within 10 working days, it must issue an initial “10 day letter” that provides, among other required information, “the reason for the delay.” Id.
How can busy agency staff consistently meet these deadlines while also making sure that they adequately search for responsive records, and review those records for the sensitive information protected by the (more…)
The Ombudsman’s Office has heard from various Maryland agencies that are interested in implementing technology to better manage PIA requests. These agencies state that they are committed to transparency and to identifying potential systems that can improve their PIA response. The Ombudsman’s Office is in the process of interviewing agencies that have already implemented such systems, and will be reporting its findings in a special series of Open Matters blog posts called “PIA Technology Solutions”. Below is part II of the series. NOTE: The Public Access Ombudsman does not endorse any specific vendor referenced in this series.
The Maryland Insurance Administration (MIA) receives a high volume of Public Information Act (PIA) requests annually. In 2014, the agency contracted with an outside vendor, GovQA, to better manage its (more…)
Each fall, the PIA Compliance Board (PIACB) submits a report to the General Assembly that includes information about its activities and recommendations for improvements to the Public Information Act (‘PIA”). In 2018, the PIACB submitted its third Annual Report, and for the second consecutive year invited the Public Access Ombudsman to provide a report on the activities and recommendations of that Office. Below is a summary of the Ombudsman’s recommendations for legislative changes to the PIA based on her mediation work and outreach activities.
Expand the PIACB jurisdiction to include review of fee waiver denials
Many of the complaints received by the PIACB and the Ombudsman involve an agency’s denial of a request for a PIA fee waiver. This issue is not currently within the jurisdiction of the PIACB, and it often forwards these disputes to the Ombudsman for possible mediation assistance. Although the (more…)
The Ombudsman’s Office has heard from various Maryland agencies that are interested in implementing technology for managing PIA requests. These agencies state that they are committed to transparency and to identifying potential systems that can improve their PIA response. The Ombudsman’s Office is in the process of interviewing agencies that have already implemented PIA management systems, and will be reporting its findings in a special series of Open Matters blog posts called “PIA Technology Solutions”. This series will highlight different technology solutions to PIA response management.
Technology can be used in a variety of ways when it comes to records management—from intake and case management systems, to comprehensive archival, retrieval, and review platforms. In July 2017, the Howard County Public School System (HCPSS) launched an online request, review, and response system that supports timely and transparent processing of PIA requests. This system allows the public to submit PIA requests through an online form, and follow the status of their requests in real-time as HCPSS works to respond. The system also makes summary information regarding each submitted PIA request available for public inspection, along with responsive documents previously provided to requestors.
The HCPSS online PIA tracking system was created from scratch completely in-house by members of the HCPSS Communications division. Staff conducted research on how similar systems function and worked collaboratively with Danielle Lueking, designated MPIA representative for HCPSS, to understand the flow of a typical PIA request from receipt, to review, to response. “Being able to work directly with the developer gives you added flexibility and a deeper understanding of specific needs,” states Ms. Lueking.