Gansler's office email points to problem with Public Information Act

The report that a lawyer in Attorney General Douglas F. Gansler's office sent an email and left a voicemail message suggesting that the state should act quickly on a request from someone who claimed to be an important political supporter of the lawyer's boss contains a number of revelations that are unflattering — but not all that surprising. A person trying to get the state government to do something plays up a tenuous connection to a politician. That politician has ambitions for higher office, and the people working for him know it. And the politician reacts angrily and indignantly when that ambition is discussed in public.

These are facts of life in government, and although they don't exactly conform with our desires for a dispassionate and apolitical civil service, they, in this instance, led to a manifestly just result: They helped get the state health lab to stop shredding records that had been subpoenaed in lead poisoning lawsuits. The process was ugly, but the political pressure, real or perceived, served the public interest. Moreover, there is no indication that Mr. Gansler knew anything about the matter until well after the fact.

What is most telling about the story that The Sun's Scott Calvert reported was the state's effort to redact the records of this exchange from a report on the lab's destruction of records. Mr. Calvert discovered the blacked-out portions due to a computer glitch — they became visible when he pasted the document into a new file. If not for that, the public would never have known about the exchange, and in fact would have had no idea what it was missing. Redactions from documents tend to be what former Defense Secretary Donald Rumsfeld famously referred to as "unknown unknowns" — that is, you don't know something and you don't even know that you don't know it.

In the first sentences of Maryland's Public Information Act guidebook, Mr. Gansler writes, "The public's right to information about government activities lies at the heart of a democratic government. Maryland's Public Information Act grants the people of this state a broad right of access to public records while protecting legitimate governmental interests and the privacy rights of individual citizens." Essentially, the default position should be that government records are discloseable, with certain narrow exceptions. However, those exceptions can be broadly interpreted, and in this case, it appears they have been.

The material was redacted under an exemption in public information law for "attorney work product." But it is unclear how an email from a lawyer to her supervisor about a conversation she had with a private third party fits that description. And what "legitimate governmental interests" are involved in keeping the exchange private are hard to imagine.

In this case, the redactions would have avoided a minor embarrassment but don't cover up anything truly nefarious. But imagine a different set of facts: Someone with a real political connection to the attorney general calls him up directly and asks that some documents be shredded rather than protected. The attorney general then calls his subordinate and instructs her to make it happen. She does, and some records are irretrievably lost. Or, in a less extreme case, political pressure is brought to bear to get the attorney general's office to drop litigation related to environmental protection or a consumer issue. Those sorts of conversations would be important for the public to know about, but they would never come to light if we were to imagine that all conversations between lawyers are inherently exempt from disclosure under the Public Information Act.

Even if we assume the question of whether the records should be subject to disclosure isn't clear-cut, a member of the public is at a disadvantage in that he or she simply has to trust that government officials are properly following the law. In this case, the situation is worse: The entity that's supposed to advise state agencies about what to disclose and redact is the attorney general's office, and it has a conflict of interest.

The only recourse the public has to challenge redactions is the courts, and that is not a practical solution. It is expensive and time consuming, and in a case such as this one — in which the significance of the redacted materials is impossible to know without knowing what they contain — suing might not seem worth the effort.

There should be an easier way. For example, Florida, a leader among the states in open government, has established a voluntary mediation program that provides a less formal opportunity for a third party to evaluate redacted records. That wouldn't completely eliminate the problem of "unknown unknowns," but it would be a definite improvement.

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