State lawmakers and advocates for government transparency are examining a proposed law before the Maryland General Assembly that could enable the state to sue individuals and organizations it believes are misusing public records laws.
Patrick Hughes, the head of the Opinions and Advice Division in Attorney General Anthony Brown’s office, introduced cross-filed bills in mid-February on behalf of the state’s chief attorney during committee hearings in the House and Senate. Hughes told state lawmakers that the attorney general believes prompt changes are necessary to the Maryland Public Information Act (MPIA).
Frivolous and vexatious MPIA requests are rare,” Hughes said. [B]ut when they target an agency, they can disrupt the operations of government and make it hard for an agency to respond timely to legitimate requests from the press, members of the public, and others.”
Del. Terri Hill, D-Howard County, asked Hughes what inspired Brown’s proposal. She said she was concerned that the changes to the MPIA under the bill could hinder the public’s access to records that ensure transparency in the government’s inner workings.
“If a person, a citizen, I’m not even talking about the press, could be banned forever from receiving records they might request, what are we doing,” Hill asked. “[B]y giving them the authority to sue, the custodian to sue the citizens, because ‘you’re a pain in my behind?’ That’s a problem, it would seem to me.”
“[T]ell us what is the main piece you want because there is a lot in here,” Hill added.
After Hughes dodged the lawmaker’s question about the bill’s priority, Hill pressed for clarification again.
“I think the ability to go to court in egregious cases and some clarification about the scope of the compliance board and the court to prohibited future requests on the same or similar types of issues so that it’s not a game of ‘whack-a-mole,’” Hughes said. “Abusive requests that personally attack members of the government are problematic, but if the committee thinks that’s already sort of captured by the spirit of what we have, I can certainly understand that.”
During a Tuesday interview, Lauren Harper, the Freedom of the Press Foundation’s first Daniel Ellsberg chair on government secrecy, told Spotlight on Maryland that all Marylanders should be alarmed.
“I think what is being proposed to the MPIA would have a chilling effect for anyone who wants to file a [Freedom of Information Act] request in the state of Maryland,” Harper said. “[I]t also runs afoul of the First Amendment. It’s hard to see how it does not do that.”
As a self-described prolific public records requestor, Harper has spent decades advocating against federal overclassification, which negatively impacts issues ranging from public health to national security, according to her online biography.
“[A]nything that places constraints on the public’s ability to scrutinize what the government is doing is not good for the Democratic process,” Harper said. “Rather than placing limits on requestors, we need to understand why doesn’t an agency want to respond to a request.”
“Perhaps the answer is simple. Perhaps agencies should proactively post more information, and that would limit the number of requests they get in the first instances,” Harper added.
Project Baltimore, a special project of FOX45 News, filed a lawsuit in December 2017 against Baltimore City Public Schools after officials significantly redacted numerous requested public records from an internal grade-changing investigation.
Judge Jeannie Hong of the Baltimore City Circuit Court ordered City Schools to release all requested records, writing that the government “knowingly and willfully” violated the law by failing to provide the documents. The judge noted that City Schools’ decision to withhold documents might have been to “hide possible wrongdoing.”
More recently, Spotlight on Maryland consulted its legal team regarding what it believed were significant delays in the MPIA requests it submitted to Baltimore City and the Maryland Department of Juvenile Services (DJS). Both government entities were notified on Monday afternoon that Spotlight on Maryland would report on their potential violation of state public records laws.
Baltimore City attorneys issued a partial release of requested records early Tuesday morning, 160 days after Spotlight on Maryland submitted its initial request. State law mandates that local and state government agencies provide public records within 30 days.
The requested records regarding juvenile GPS monitoring of justice-involved juveniles are still outstanding from DJS. Spotlight on Maryland submitted the request 98 days ago.
Spotlight on Maryland requested an in-person or virtual interview with Brown on Monday to discuss his MPIA proposal and other legislative priorities from his office. The attorney general’s communications team asked Spotlight on Maryland to provide potential questions that might be asked during the interview and requested a more narrowed focus.
After Spotlight on Maryland replied that it adheres to established journalism ethics prohibiting the provision of predetermined questions to interviewees, a spokesperson for the attorney general declined our interview requests.
“Is there a particular reason for the decline so I can share that with our viewers, readers, and lawmakers,” Spotlight on Maryland asked the attorney general’s office. A further response was not received.
Sen. William Folden, R-Frederick County, said he is appalled by Brown’s silence and believes his proposal is not in the best interest of the government’s relationship with its citizens and taxpayers.
“The attorney general’s goal in this is to limit transparency,” Folden said. “I don’t find it coincidental that at a time when the state is facing one of the largest structural deficits in its history, that now, all of a sudden, the attorney general thinks now is a good time to silence those who are inquiring about millions or billions of dollars of taxpayer money.”
“They should be encouraging this accountability, not discouraging open government to its citizens,” Folden added.
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