The stewards of Maryland’s public records law are seeking greater authority to adjudicate disputes between government agencies and individuals who seek public records from them, without sending the matters to court.
The Public Information Act Compliance Board was created along with the public access ombudsman by state lawmakers in 2015, under legislation that limited the scope of the board’s review authority to fee disputes. Ombudsman Lisa Kershner was empowered to mediate disputes but granted no authority to issue binding decisions.
On Wednesday, Kershner and the board issued a preliminary report, requested by the legislature, on the state of the Public Information Act and state agencies’ compliance with it. In it, they recommended that the board be authorized “to review and issue binding decisions on most PIA disputes that have not been resolved” through mediation in Kershner’s office.
Currently, an agency’s actions in relation to a record request can only be challenged through civil action in state court, a remedy the compliance board in its new report suggests is unnecessarily complex.
“Most PIA disputes do not require a complex process or in-person hearing. Rather, most PIA disputes are simpler than other kinds of civil disputes in complexity, evidentiary requirements, and the need for formal process,” they wrote.
The new process, in which the board would issue binding decisions, would “reflect this simplicity" of most disputes, they wrote, with the board being able to consider evidence and call for hearings if needed.
The change would create some additional work for the board and its staff, but could be handled by two additional employees — an administrator and an attorney, the board wrote.
The recommendation, it said, “preserves the Ombudsman program, which has been successful in resolving many, but not all, PIA disputes, while expanding the role and impact of the existing Board, which is currently underutilized due to its limited jurisdiction.”
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Any decision by the board in future disputes still could be appealed in Circuit Court, as is currently the case with binding board decisions on disputes over fees greater than $350, it said.
The new authority was one of several recommendations the board made in a 21-page preliminary report on the status of the PIA. A final report is due to the legislature in December.
Kershner and the board also recommended that lawmakers mandate agencies track a standardized set of data related to public records requests. They noted the lack of such standardized data at the moment limited the usefulness of data collected from surveys of 23 state agencies as part of their work producing the new report.
The Baltimore Sun obtained those surveys last month and reported that state agencies are struggling to handle thousands of public records requests and lack consistent policies for complying with the state disclosure law.
The board reached similar conclusions. It found that “internal inconsistencies present in the reporting agencies’ survey data, together with the Ombudsman’s experience, suggest that many agencies are not adequately tracking PIA requests, leading to tardy responses and other compliance issues.”
It also found that there is “wide diversity in the reporting agencies’ compliance with and competence in records management practices," and that "some agencies reported not knowing whether they had retention schedules on file at all.”
Public comments are still being accepted, ahead of edits to the report, through Dec. 6 at firstname.lastname@example.org.