If the email from Gov. Larry Hogan's chief legal counsel advising officials at various state agencies and departments to routinely label all written communications as "CONFIDENTIAL, FOR INTERNAL USE ONLY – PROTECTED BY EXECUTIVE PRIVILEGE" was really no big deal and not to be taken seriously, as the governor's spokesman claims, then the administration needs to rescind it. Otherwise, it is likely to have a chilling effect on the openness of government regardless of its legal effect.
Maryland's Public Information Act is supposed to make all government documents available to the public with certain exceptions, such as personnel records and materials that are deliberative in nature. But the presumption is supposed to lie on the side of openness — that is, materials are supposed to be public unless the government can point to one of the specific exemptions in the law. The memorandum from Robert F. Scholz, which was obtained by The Sun, turns that presumption on its head. It suggests that agencies should view their documents as secret unless they can be proven otherwise.
Whatever advice Mr. Scholz gives to state agencies does not, of course, trump the law. Nor does labeling an email "protected by executive privilege" make it so. Mr. Scholz admits as much in the memorandum, and a Hogan spokesman said The Sun was "making a mountain out of a molehill" by publicizing something that has no legal effect on whether the public would actually have access to any of the documents in question. But that blithe response betrays a lack of understanding about the way Maryland's Public Information Act works in practice.
If a judge were to settle a dispute over access to documents between a member of the public and the Hogan administration, he or she could — and no doubt would — laugh a pro forma executive privilege claim right out of court. But the vast majority of the time, no judge or any other third party is involved in deciding which documents should or should not be released. Rather, it is state agency officials — the very sort of people who received this memorandum — who make those determinations, possibly under consultation with Mr. Scholz's office. An advisory like this one conveys the message — whether intentional or not — that Hogan administration officials should err on the side of withholding documents, and that the office of the governor's counsel will back up that practice.
An aggrieved member of the public could take the administration to court over withheld documents, but that happens rarely. Even large news organizations don't have the resources to fight every case. And most members of the general public — who have just as much right to the information as The Sun does — would almost certainly not have the means to sue. Most of the time, then, deeming documents to be privileged has the effect of keeping them hidden whether it's legal or not.
There's no small amount of irony in seeing such a memo from the new governor's administration, considering how vociferously Mr. Hogan attacked former Lt. Gov. Anthony G. Brown during last year's election over the lack of transparency about his role in the bungled 2013 launch of Maryland's health insurance exchange. Mr. Brown had cited executive privilege to avoid disclosure of emails or other documents related to his involvement with the exchange. It doesn't inspire much confidence to see a high-ranking official in the Hogan administration suggest that should become standard practice.
Perhaps this all really is a misunderstanding. Perhaps Mr. Scholz got a little overly enthusiastic and forgot that it's really the public he's supposed to be serving. Perhaps what he said doesn't at all reflect Governor Hogan's thoughts about how state agencies should view the Public Information Act. If so, there's a simple solution: Mr. Hogan could send his own memo to state employees reiterating the importance of public disclosure, his belief in transparency, and his expectation that responses to Public Information Act should be prompt and thorough. He has said he wants to reorient state government toward customer service, and that should go just as much for public requests for information as it does for businesses seeking licensure or regulatory approvals.
Mr. Hogan could go one step farther than that. Good government advocates in the legislature are pushing for the biggest reform to the PIA in years, including provisions to standardize fees for reproducing documents, to require agencies weigh the potential harm from disclosure against the public benefit and to create a citizen compliance board to arbitrate disputes. There would be no better way for Mr. Hogan to convince the public that he's committed to open government than to testify on behalf of that legislation.