When legislation passes the Maryland General Assembly unanimously, it usually means that it doesn't do much aside from make lawmakers look good. Such was the case with House Bill 658, which started life as an effort to make state government more transparent and was ultimately reduced to another summer study last spring.
Perhaps we're wrong. Maybe the Joint Committee on Transparency and Open Government — which was given the chore of studying ways to reform the appeals process when a reporter or member of the public is refused government records under the Maryland Public Information Act — will recommend bold ideas that lawmakers will approve when they reconvene in January. But that's not the usual outcome for such efforts.
News organizations including The Baltimore Sun can lobby as hard as they want to strengthen public access to records held by state and local governments, but legislators are usually reluctant to make waves. The majority make a kind of political calculus — if average citizens aren't storming the gates over the issue, why take the chance that you might cause potentially embarrassing information to be released?
Here's why they should. Because important information is being denied the public, and it's happening over and over again and reflecting badly on all incumbent office-holders whether or not they are directly to blame for the circumstances. A few examples:
- Maryland’s failed launch of a health care exchange last year has produced all manner of blame-shifting but little enlightenment about who knew what and when, including the role of Lt. Gov. Anthony Brown, the front-running candidate for governor. The O’Malley administration has denied numerous requests for more detailed information in the form of records, emails and the like without explanation. The chances it will be released before the election? Just about nil.
- In Ocean City, officials continue to insist that police do not have to release the name of a Parkville teen who drowned there in June to The Daily Times. The standoff has resulted in a lawsuit, as there is no exemption under the MPIA to justify withholding the information. If police can withhold a name for no reason, what other information do they deny the public?
- When reporters for The Sun attempted to access certain incident reports from the Maryland Transit Administration, they were told the agency’s antiquated record-keeping made that too difficult unless the newspaper was willing to fork over an $11,000 fee to cover the cost. Such outrageous fees are a common tactic to thwart records requests.
- A columnist for The Daily Record was denied information regarding the Maryland Department of Housing and Community Development’s controversial decision to move offices from Anne Arundel County to Prince George’s County. Officials insist the move is fiscally prudent but refused to disclose what other developers offered in their bids.
Some electronic records seem especially designed to thwart searches — like the state ethics commission database that restricts access to one item at a time. Another favorite way to deny public information is to allow "access" but not actual copies of records, a loophole that makes inquiries more costly and time consuming.
Sen. Brian Frosh, the Democratic nominee to be Maryland's next attorney general, says he's sympathetic to the problem and willing to advocate for change. But the former chairman of the Senate Judicial Proceedings Committee acknowledges it was "not a burning issue" to most of his fellow senators. Jeffrey N. Pritzker, the Republican candidate for attorney general, said he, too, is concerned when "government stonewalls the citizens" and has promised to advocate for government transparency whenever possible.
While the attorneys general can't write the laws, they can use their position to call attention to a problem. The outgoing officeholder, Douglas F. Gansler, took up another issue legislators are usually loath to touch — campaign finance reform — and helped push through some of the most significant reforms the state has seen in years. Granted, he was helped along by some particularly egregious scandals and the eventual legislation wasn't perfect, but it's a useful model for his successor to follow when it comes to transparency.
The next attorney general can also act on his own to serve as an advocate for the public in cases where the law is being misapplied. Maryland's law, compared to those in other states, provides a great deal of discretion to shield all or part of records from public view. The last thing we need is for state officials to misinterpret the law to further frustrate public access to documents, but too often that's what happens. At the very least, the next attorney general needs to make sure the existing standards are met. It's up to the next governor and General Assembly to do the rest.