Make Public Information Free and Online From Its Creation

"The test of right-to-know laws is the accessibility to the information that public officials don't want to give you," writes J.H. Snider in an opinion piece for The Washington Post.

Snider details the difficulties and struggles he's encountered trying to obtain public information from officials in Maryland.

He argues the state should adopt legislation that makes information online and free to the public from the moment of its creation. He also suggests document creation be separated from control. "Until now, the only practical option was to give the foxes control of the chicken coop; that is, creators of public records also had control of access to them," writes Snider. "But with the advent of the Internet, this argument no longer holds." An independent body could be used to archive and post materials online, suggests Snider.

Maryland County Adopts Triage Approach for Records Requests

Allegany County will begin using a "triage concept" for evaluating requests under the Maryland Public Information Act to categorize requests as routine or complex and respond accordingly.

The change comes after a public information officer and county attorney attended a training seminar presented by Assistant Attorney General William Varga. 

Allegany County will not be adopting a recommendation to receive or respond to records requests via email.  

Get more here.

Maryland AG, SHA block access to key records

From Richard D. Boltuck of Maryland:

Most residents of West Bethesda in the neighborhoods near Whitman High School are well aware of the hazardous and chaotic Braeburn Parkway/River Road intersection used as one of the main entrances to the Whitman parking lot. Many of those turning on or off River before and after school are high school students, among the least experienced drivers anywhere. Many dangerous accidents have occurred at this intersection, including one recently noted on some local listservs; the lack of anyone being killed in such an accident to date is a product of good luck rather than precautionary measures.

For well over a decade, the community has sought installation of a traffic light at the intersection to regulate traffic and tame the hazards. River, of course, hosts numerous traffic signals already, including at the entrances to country clubs and other schools. The community's efforts have always been supported strongly by members of our General Assembly delegation. And as you might recall, last year we collected hundreds of local signatures on a petition urging the Maryland State Highway Administration (SHA) to install a light. Thus far, however, the SHA, which owns River Road, has rejected our pleas.

Typically, when periodic concerted efforts were underway in past years, SHA engineers would meet with the community or its representatives and inform them that a recent scientific engineering study required by law before a signal could be approved indicated that a signal was not warranted. At that point, the community was left with few immediate options, except to request another examination a few years later. In the meantime, students, faculty, and staff at Whitman, together with other drivers, continued to risk life and limb every day. And, of course, the next study by SHA simply echoed the prior one, starting the cycle over again. In short, no progress.

In the past year, I have worked on breaking this unproductive cycle by taking a somewhat different approach -- with great advice and assistance from others, including particularly Peter and Christina Sklarew, and Seth Guggenheim. My hypothesis was that part of our historical ineffectiveness arose from a lack of symmetry in the information we possessed. We had never actually obtained any of the SHA traffic-signal warrant analyses and the accident data on which they were, in part, based, let alone studied them carefully. Consequently, last summer I filed a request for these analyses and data with the SHA, based on the Maryland Public Information Act (PIA), the state's version of the Federal Freedom of Information Act. I had assumed that the analyses were not previously reviewed simply because they had never been requested. I was surprised, however, that my request was rejected on a variety of grounds asserting alleged exceptions to general disclosure requirements of the PIA.

Over the past year, I have challenged this rejection through the administrative review process set out in Maryland's Administrative Procedures Act (APA). Last September, the case was heard before an administrative law judge in the Maryland Office of Administrative Hearings. Shortly before that hearing, SHA partially backed down, sending me copies of the various warrant analyses, but continuing to withold the compiled accident data. These data are important in verifying the validity of that aspect of the analyses, and in better understanding SHA's perception of how dangerous the intersection is.

The administrative review process is now at its tail end, and I am awaiting a "final decision" by SHA Administrator Neil Pedersen no later than the end of August. Last week, Peter Sklarew and I attended a hearing before Mr. Pedersen and I presented oral arguments in favor of disclosing the requested accident data. The PIA case has been interesting in itself as a public-interest project. Maryland's highway and road system, after all, touches all of our lives, and constitutes one of the most significant uses of public tax funds in the state.

Despite the democratic public interest in understanding how our money is used and on what decisions about our road system are based, and despite the fact that the SHA is not a national-security agency, SHA and its legal advisors from Attorney General Gansler's office have devised a theory that they argue prevents them from disclosing a very significant share of public highway records to members of the public. Highway accident data, paid for by taxpayers and relied on in improving highway safety, are among those records. The legal position taken to date by AG Gansler and his staff is at the core of the problem. AG Gansler's office has thus far (up through Mr. Pedersen's "Proposed Decision") adopted a needlessly expansive and unjustified interpretation of a 2003 Supreme Court decision as a key part of its theory, an interpretation directly at odds with the two state appellate courts (in Kansas and New York) that have addressed this exact issue after 2003. In doing so, Mr. Gansler has, in effect, invalidated rights established for Maryland citizens (and others) by the General Assembly, instead preferring an interpretation where Federal law broadly preempts Maryland's own PIA. I would have thought the job of the AG is to defend the state's statutes, and the rights they create, to the greatest extent possible. If I were in the General Assembly, I would be furious that the laws I had participated in passing were being treated in this manner by the state's own chief attorney.

View related case documents here.

NFOIC Summit: FOI & Infrastructure

James Shiffer, reporter and editor at the Minneapolis Star Tribune; Tisha Thompson, investigative reporter at WTTG Fox 5 in Washington, D.C.; and Jaimi Dowdell, IRE training director and former computer-assisted reporting editor at St. Louis Post-Dispatch, discussed how to use FOI to inform the public about infrastructure issues. Patrice McDermott, director of OpenTheGovernment.org, moderated. Here are some notes from their session at the 2009 NFOIC Summit:

Lessons from the Minneapolis I-35W Bridge collapse:

• The Minneapolis I-35W Bridge collapsed at 6:05 p.m. a couple blocks from the Star Tribune office. James Shiffer said the Star Tribune had a suspicion that there was something in the bridge's history that would explain why the collapse occurred. Reporters used the National Bridge Inventory database as the basis for a front-page story. The bridge had been declared structurally deficient as recently as 2005.
  
• On Aug. 2, the paper filed its two first formal requests related to inspection and maintenance records. Reporters followed up with four additional requests that month about contractors who worked on the bridge. Minnesota Government Data Practices Act requires that relevant corporate records of government contractors are public.
• The conclusion was that the bridge had a design defect dated back 40 years. However, the paper did get Missouri Department of Transportation to acknowledge that part of it was bent. This was visible in photos, and at least one inspection noted the bending. You didn't have to be an engineer to notice.
• This was the most studied bridge in Minnesota. A Star Tribune columnist pointed out that when it was announced that a bridge had collapsed, a lot of people probably didn't have to ask which one.
• The Minnesota Department of Transportation was bombarded with records requests from journalists, lawyers, construction companies and victims. The organization did a good job early on in putting the inspection reports online. They couldn't argue that the information was protected because of homeland security. The bridge was gone.
• Shiffer said MDOT was not good at providing notes, photos and internal documents. The newspaper gave MDOT a draft lawsuit, which got them going. The excuse was that the inspectors were too busy making sure other bridges were safe to answer questions or find records. You want us to do our jobs, right? they asked. Four months later, MDOT dumped data online, but the system was difficult to use. The newspaper reporters were not allowed into the office to view the files.
• The National Transportation Safety Board completed its report, which included citations of documents and memos that MDOT hadn't turned over to the Star Tribune via FOIA and hadn't released on its database.
  
• Jaimi Dowdell said the St. Louis Post-Dispatch used bridge databases to conduct its own analysis the first day after the collapse. Then, reporters began analyzing similar St. Louis bridges by requesting audit and inspection records.
• Tisha Thompson noted that agencies shut down records after the Minnesota bridge collapse. They realized that the records tattled on them.

Lessons from bridges and dams coverage:

• From FOIA documents, Tisha Thompson reported on a Kentucky bridge with rusted bolts and rotten pillars and rails, a Baltimore bridge with loose timber beginning to decay and a D.C. bridge with a tree growing out of its side. (The tree was slowly pulling the bridge apart.)
• Thompson says stories on bridges and dams are the easiest to do because there are federal inspection requirements.
  
• When a dam broke in St. Louis, Jaimi Dowdell's team did an immediate story based on the National Inventory of Dams database. They then requested reports from state studies. In doing so, they found a state clause that sets up an agricultural exemption for dams to be inspected. So many dams were not being inspected because they were under a certain height. It turned into a watchdog story. You never know where FOI paths can take you.
• The dam database has been shut down to the public. It doesn't have data after 2002 because of homeland security concerns.
• Access to records often depends on the agency and who's in charge. Thompson recalled that Virginia shut down records on all 13,000 of its bridges because of homeland security. She had no problems getting dam inspection reports from dams. It was the opposite in Maryland.
• Thompson couldn't get data on a small bridge in the middle of nowhere because of homeland security concerns. Only 72 people passed over the bridge in a day. She explained the ridiculousness of this excuse. The furthest she got was being allowed to view documents in the office. She was not allowed to photocopy them.
• Thompson said that although agencies fought her on the data on the bridges, they replaced every bridge she covered.
• James Shiffer described one of his reporters who talked to the U.S. Army Corp of Engineers concern a dam that the Minnesota hoped to get stimulus money to rebuild. The reporter got full access to inspection reports because the state wanted it fixed. However, the U.S. Army Corp of Engineers refused to speak with the reporter regarding another dam next to the Ford Plant that might have water seeping underneath it. The corp used the homeland security excuse. Eventually an interview was reluctantly arranged.
  

Newspaper fights Naval Academy for records

The Capital has spent three years fighting for Naval Academy records, and the battle is not close to being finished. In March 2006, the Maryland newspaper asked for documents on how the Naval Academy handled sexual misconduct cases and filed an FOIA request. After the academy said no such documents existed, the paper filed another FOIA request for which the academy used a privacy-concern excuse. The Capital hired an attorney, and the navy judge advocate general granted the newspaper's appeal in September 2008. However, The Capital has only received partial documents and none involving the sex abuse cases from 2007 and 2008. The newspaper has filed another request for these documents.

A seemingly simple question about whether the Naval Academy treated men and women fairly in sexual misconduct cases took three years and 3,000 pages of documents to only partially answer.

Getting these documents was not easy even though the Naval Academy is a publicly funded institution. It receives between $200 million and $300 million each year in taxpayer dollars, and applications from between 9,000 and 15,000 of the nation's young people annually.

The Capital became interested in the sex abuse cases after some midshipmen and academy graduates alleged in 2006 that there was a double standard of justice being meted out to male and female mids.

More here.

Homeland Security may have violated privacy of activists

FOI at Work!
Via an FOIA request, The Washington Post obtained an e-mail indicating that the U.S. Department of Homeland Security forwarded information about a Washington area anti-war group to Maryland State Police.

U.S. Department of Homeland Security tracked peaceful activists using information shared with the Maryland State Police, government documents show.

Maryland's two senators, Democrats Benjamin Cardin and Barbara Mikulski, and civil libertarians are worried that privacy rules may have been violated by revelations in documents obtained through the U.S. Freedom of Information Act, The Washington Post (NYSE:WPO) reported Tuesday.

E-mail obtained by the newspaper indicate Homeland Security was able to track the 2005 protest plans of a peaceful Washington area anti-war group based on information shared with the Maryland State Police, whose spying activities on the DC Anti-War Network, or DAWN, have drawn much criticism.

More here.

States Embracing Contract Transparency...

A nice look at the emerging sunshine in state governments by the Baltimore Sun...

Houston spent $33,000 on bullets this year, but "Space City" paid nearly three times that to buy horse food. And while fuel costs have increased $3 million in Missouri since 2005, at least the "Show Me State" taxpayers spent 35 percent less on contracts for barbecue and pizza.

From costly construction projects and health insurance payments to the meals bureaucrats expense when they work late, state and local governments are increasingly putting their checkbooks online - allowing regular citizens to follow the money.

Months after Maryland lawmakers approved a plan to put the state's financial information online, a member of Baltimore's City Council is proposing the same idea for City Hall.

"Sometimes a shroud of secrecy casts a bad light unnecessarily," said City Councilwoman Belinda Conaway, who plans to introduce her bill Monday. "Everything can be aboveboard, but because it's not public, people suspect that there's something wrong."

Public access advocates have cheered the trend and say the information is used by a wide spectrum of people, including nonprofit leaders, journalists and contractors. Kansas, Hawaii, Minnesota, Oklahoma and Texas have approved similar sites.

"We're seeing just a whole lot of this at the state and local level across the country in bits and pieces," said Charles N. Davis, executive director of the National Freedom of Information Coalition. "It's subject to a couple of forces. One, politics, and people embracing transparency and becoming more proactive."

More here.

ACLU To Get Profiling Data in Maryland

The NAACP can review Maryland State Police documents alleging racial profiling that the organization had been seeking, a judge ruled yesterday - a victory for the civil rights organization in a battle that has raged more than a decade.

Baltimore County Circuit Judge Timothy J. Martin decided that a panel of three lawyers selected by the civil rights organization's Maryland conference will have 120 days to review the documents and select those they would like copied. The names of the officers and the complainants will be redacted from the copied documents.

"I believe the fair approach is to find a middle ground," Martin said. "I know state police fear a precedent, but I believe the NAACP is entitled to disclosure of these documents. ... I know the state police are not going to be happy with the statements I'm making."

Betty A. Stemley, an assistant attorney general representing the state police, had argued that the documents were not public record and should be considered private personnel documents.

More here.

A Bad Exemption In Maryland, Part II

A bill blocking access to some information requested under the Maryland Public Information Act will be referred to a subcommittee for amendments. The bill, introduced at the request of Baltimore City, would require anyone seeking information from a state or local government agency related to a pending lawsuit, to obtain a court order.

David Ralph, chief of the city Law Department's Litigation and Claims Division, testified Feb. 27 before the House Health and Government Operations Committee that the city was overwhelmed by requests from attorneys trying to circumvent trial-discovery laws by gaining access to further information under Maryland's Public Information Act. Ralph told legislators that the bill had "nothing to do with the limitation of public information. The only thing we care about is requests that were meant to be abusive."

The Public Information Act, which became law in 1970, governs the release of state documents and provides instances in which documents cannot be released, such as where the information could compromise trade secrets or medical information.

More here.

An Editorial on a Hideous Exemption Proposed in Maryland

Fine editorial in today's Washington Post:

PRACTICALLY every state in the nation has a law that eases access to public records and documents, a godsend for researchers, public advocacy groups and ordinary citizens, not to mention lawyers and journalists. Those laws, modeled on the federal Freedom of Information Act, have been mainstays of open and transparent government for several decades. That's why legislation pending in Maryland to cripple the state's Public Information Act is so singularly dimwitted.

Want state records on the Chesapeake Bay cleanup? Crime statistics? Information on the juvenile justice system? The legislation would block access to all of that if the request for information were "related to" a pending lawsuit -- a staggeringly broad and undefined exemption that would be almost impossible to administer. It would force document-seekers to petition a court to grant access to records that have been readily available for decades. No wonder Maryland judges, among many others, have opposed the legislation, warning that it may well be unconstitutional and would certainly result in a logjam of motions in court.