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PIA Blog – Open Matters

Lisa Kershner

Welcome to the Blog-page of Public Access Ombudsman Lisa Kershner. Ms. Kershner was appointed to the Ombudsman position by the MD Attorney General to a 4-year term, Lisa Kershner is Maryland’s first Public Access Ombudsman. 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 a weblog that will serve as a vehicle for public information officers, administrators, and the public to share information about the way Maryland Open Government is defined, viewed, and improved. The goal of this blog is to inform other open government professionals about tips, innovative approaches, and other best practices regarding transparency among Maryland governmental agencies.



08/14/2019 - Highlights From The PIA Compliance Board’s Opinions

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.

Contractor Fees

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…)

08/01/2019 - Ombudsman and PIACB Seeking Comments on Research Project

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 jclark@oag.state.md.us/.

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 pia.ombuds@oag.state.md.us.

Stay tuned to this blog for more PIA news!

07/12/2019 - Where Are My Records?

~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.

Tips

  • 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.

(more…)

07/03/2019 - Assessing Fees for PIA Requests

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.

Dear Ombudsman,

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…)

06/18/2019 - Public Access Ombudsman Adopts Regulations

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.

04/15/2019 - Tips for Agency Transparency in the PIA Process

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…)

03/29/2019 - Proposed Regulations Noticed – Ombudsman Operations

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: pia.ombuds@oag.state.md.us; 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.

03/15/2019 - Let the Sun Shine In: Maryland Public Access Ombudsman Program

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.

Quick Takes

Who responded?

  • 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:

  1. 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.
  2. 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.

(more…)

01/28/2019 - Proactive Disclosure Saves Time and Money, and It’s the Law

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…)

11/20/2018 - PIA Technology Solutions: Maryland Insurance Administration’s PIA Web-Portal

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…)

11/01/2018 - 2018 Recommendations to the General Assembly

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…)

09/26/2018 - PIA Technology Solutions: HCPSS – Transparency in Public Schools

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. 

(more…)

07/13/2018 - Privacy Beyond the Grave: Does the PIA Protect the Personnel Records of a Departed Employee?

The Maryland Public Information Act (“PIA”) protects the confidentiality of personnel records. Md. Code Ann., General Provisions Article (“GP”), § 4-311(a) (2014, 2017 supp.). A personnel record includes “an application, a performance rating, or scholastic achievement information.” GP § 4-311(a). It also includes “those documents that directly pertain to employment and an employee’s ability to perform a job,” Kirwin v. The Diamondback, 352 Md. 74, 82-84 (1998), and records “relating to hiring, discipline, promotion, dismissal, or any other matter involving an employee’s status,” Montgomery County v. Shropshire, 420 Md. 362, 378 (2011). In other words, the personnel records category is very broad. Public employees (and their supervisors) can obtain their own personnel records under the PIA, but they can’t get someone else’s, and no other third party can get theirs. GP § 4-311(b).

You might ask what happens if the employee is deceased, or no longer works at the agency — are their records still protected? The PIA does not distinguish between the personnel records of the living and deceased, or between the records of an active and departed employee. The PIA Manual notes that this “suggests, then, that the personnel records of former employees do not receive less protection than those of current employees.” PIA Manual, 3-12 – 3-13 (available here).

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06/18/2018 - Why Am I Being Charged? A Q&A Breakdown of Fees Agencies Charge for Maryland PIA Requests

Maryland Public Information Act (PIA) fees are governed by section 4-206 of the PIA. An agency is allowed to charge a reasonable fee for the search for and preparation of requested records.

Q. What is a reasonable fee?

A. A “reasonable fee” is not a specific amount. Fees can range from $20 to thousands of dollars. It’s all about the request. The more complicated or nonspecific a request, the more likely that the fees will be higher because the agency will have to devote more staff time and resources to provide a complete response.

An agency must provide the first two hours of work for free, but after that they may calculate and charge the prorated salaries of the employees involved in searching for, preparing, and reviewing the records. The bottom line? A “reasonable fee” means the fee must be tied to the agency’s actual costs in responding to the request.

Q. What about flat-fees? How is a flat fee tied to actual costs?

(more…)

03/29/2018 - Innovative Approach to Case Management Aids Anne Arundel’s Compliance with the PIA

Innovative Approach to Case Management Aids Anne Arundel’s Compliance with the PIA

Anne Arundel County, Maryland provides individuals a user-friendly process for making requests for County records. As an illustration, about one year ago, the County implemented a “Case Management” type system that provides individuals access to an online request form to make requests for County records. All of the County’s departments are part of this records request system.

To make a records request, a requestor selects the “Public Information Request” button on the County’s website http://www.aacounty.org/departments/county-executive/public-information-office/. The requestor then locates the type of records sought from a list of approximately 20 different categories of records, such as ambulance reports, building permits, police reports, subdivision files, and public works agreements. If the requestor does not believe one of the categories of records fits the records sought, the requestor has the option to select “Other.” Then, the requestor inputs a description of the records sought and other information including the user’s name, address, email address, phone number, an indication of whether the requestor seeks a fee waiver and if so, the reason for the fee waiver request.

(more…)

09/26/2017 - Down the Rabbit Hole: What is a Maryland Public Information Act (PIA) Request?

Down the Rabbit Hole: What is a Maryland Public Information Act (PIA) Request?

Sounds like an easy question, but there are nuances to a making a PIA request. In its most basic form, a PIA request is a request for public record(s) from a governmental entity.

“What’s so hard about that,” you might say. One of the nuances is defining what a public record can be. Public records are created by or in the possession of public entities, as described in the statute:

“Public record means the original or any copy of any documentary material that are made by a unit or an instrumentality of the State or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business.”

This means that a governmental entity- does not have to create or compile information in response to a PIA request. (more…)

09/11/2017 - What Makes a Successful PIA Mediation?

The PIA Ombudsman’s program receives requests for assistance from a wide variety of requestors, and less frequently, from agencies, involving a wide array of PIA issues and problems. The program is informal, voluntary, and covers a wide range of issues. The information needs and motivation of the requesters, and the capacities and resources of the agencies both affect the mediation process and outcomes. The Ombudsman believes that the likelihood of a successful outcome in PIA mediations often is enhanced or diminished by several factors: (more…)