Transparency Worth Fighting For: NMA Weekly E-Newsletter #473

To quote from the NMA Guide to the Freedom of Information Act and State/Municipal Public Records Requests (yes, we do need to work on that title):

Constructive reform of government requires a thorough understanding of an issue.  Used effectively, the records request helps provide transparency of policy and related activity that are essential ingredients to an open society and functioning democracy.

Great in theory, often elusive in practice. Fortunately advocates like the Maryland Drivers Alliance (MDA) are relentless in their determination to get at the truth. Two records requests filed by the MDA and the subsequent challenges it mounted (with the aid of NMA Foundation legal aid grants) triggered important opinions by the Maryland Office of the Attorney General in its recent report on the implementation of the Maryland Public Information Act (PIA).

Case #1: Ely v. Town of Morningside

The MDA (Ely) requested speed camera calibration records from Morningside, records that were legally required to be maintained. The town initially denied having the records. After being pressed, Morningside acknowledged that the documents were held by the speed camera vendor, a third-party contractor, which, in its opinion, put the town under no obligation to provide the records.

Noted the Attorney General’s Office in its report on the state’s public information act:

Lying at the public end of the spectrum are speed camera vendors, which essentially perform a governmental function—enforcement of speed limits. In much the same way that the government cannot avoid the PIA by storing its public records with a private vendor, there is some force to the argument that the government should not be able to avoid the PIA by delegating its public responsibilities to a private vendor. Although there are no reported appellate decisions on the topic here in Maryland, we are aware of one circuit court decision in which the court appears to have concluded that the government violated the PIA by not disclosing records maintained by its third-party speed camera vendor. See Ely v. Town of Morningside.

Case #2: MDA’s Montgomery County Records Request

After identifying an intersection in the county with red-light cameras and traffic signals with yellow light intervals shorter than required by state policy, the MDA formally requested details of the red-light violations at that location. When Montgomery County refused to honor all parts of that request, the MDA broadened the scope of information in a second request. The county responded by quoting a processing fee of $19,000 to comply.

Agencies are permitted by law to charge reasonable fees for processing document requests, including the cost of retrieval and duplication. Reasonable, however, is in the eye of the beholder. The MDA brought the $19,000 fee to the attention of the Maryland Public Information Act Compliance Board. Montgomery County countered that all of the requested records would have to be manually retrieved and thousands of pages copied, a claim that crumbled under scrutiny. Here too Montgomery County’s camera vendor held the records in question and maintained many of them in electronic format. The Board determined that the maximum fee for retrieval should be no more than approximately a tenth of the original estimate.

As a result, the Maryland Attorney General’s office stated:

Since our Interim Report was issued, the PIA Compliance Board issued an opinion that touches upon this issue. The Board concluded that, under the facts presented to the Board, a municipal government was obligated to seek records from its third-party speed camera vendor if doing so would provide a less expensive means of responding to a PIA request.

Thanks to the Maryland Drivers Alliance, opinions have been rendered by the state’s highest law enforcement office that will help deter future attempts to avoid records requests by storing the public documents with a private contractor or to demand outrageous processing fees in an attempt to thwart full government transparency.

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