Summary

Attached is the correspondence concerning J.H. Snider’s Maryland Public Information Act request for the official email correspondence of Joshua Greene, Chair of the Anne Arundel School Board Nominating Commission (SBNC).  The correspondence is primarily between J.H. Snider and the SBNC’s Counsel, Michelle Davis, who Chair Greene assigned to fulfill the Public Information Act request.  Davis is a lawyer and policy analyst in the Maryland Department of Legislative Services.  She has worked as a trusted lieutenant for some of the General Assembly’s most politically sensitive public bodies.  These include principal advisor to the Maryland Governor’s Redistricting Advisory Committee, The Speaker’s Advisory Committee on Redistricting, and The Senate Committee on Reapportionmente & Redistricting.

Legal advice to Michelle Davis concerning acceptable email retention practices by a government agency was provided by Sandra Brantley, the email practices expert in the Office of the Maryland Attorney General.  Correspondence with Sandra Brantley is a second thread in this correspondence.

The initial request was made on June 5, 2015, approximately three weeks before the end of the last election cycle (new school board members are supposed to take office on July 1 of each year).   This was also the last election cycle for the SBNC commissioners, including the Chair, appointed by Governor Martin O’Malley.  As it turned out, the June 5 date would also be one month before Maryland House of Delegates Speaker Michael Busch would appoint Chair Greene, a partner at one of the world’s largest lobbying firms (Squire Patton Boggs), to another and more prestigious Maryland commission.

The initial email was focused on the SBNC Chair’s “public” email address, which was public in the sense that it was the dedicated private Gmail address that the Chair publicized as the official email address for SBNC communications.  Over subsequent months, the SBNC Counsel would gradually reveal that that was only one of four email addresses Chair Greene used for SBNC correspondence.

The correspondence provides evidence of a culture of secret law, secret electioneering, and stonewalling.  Will the new SBNC appointed by Governor Larry Hogan be any different?

Addendum: the ethical practices of Maryland’s Department of Legislative Services

This Public Information Act correspondence helped inspire two Maryland General Assembly bills, HB0492 and SB0155. Incredibly, the Assembly, via the Maryland Department of Legislative Services, assigned Michelle Davis, the SBNC’s counsel as well as the designated public information officer responsible for fulfilling this Public Information Act request, to write the fiscal and policy notice (cost estimate) for those bills.  As a matter of government ethics, she should not have been assigned that task.  When she was assigned it, she should have recused herself by pointing out the conflict of interest.

Regardless of any ethical conflicts, Counsel Davis is ill suited to provide impartial cost estimates.  There is an important role in the legislative process for loyal political operatives.  But providing fiscal policy notes is not one of them.   Her bosses should not have assigned her to provide staff support to the SBNC in the first place.  That assignment was done as a secret favor to the Democratic leadership and withdrawn without any public notice or other type of due process when that leadership lost its control of the SBNC.  But once the decision was made to give Ms. Davis such a political role, the implications of that assignment for her role as an impartial policy analyst should have been duly taken into consideration. (Note that the Fiscal Note provided by the Maryland Department of Legislative Services when the SBNC was created provides no line item for SBNC staff support, let alone staff support provided by the Maryland Department of Legislative Services.)

Given how she was assigned her role and what was clearly expected of her, Ms. Davis’s work for the SBNC should not have been surprising.  It was partisan, motivated by the political goals of the SBNC’s chair, and contemptuous of open government values.  Not surprisingly, too, her cost estimate for SB0155 ($3,719,100) was outlandish–effectively functioning as a bill killer.

In another remarkable twist, the Maryland Senate sponsor of SB0155 asked the Office of the Maryland Attorney General for expert advice on the bill.  The Attorney General assigned the other correspondent in this correspondence, Sandra Brantley, to that task.  Ms. Brantley, an assistant attorney general, was former campaign manager for Doug Gansler in his winning campaign to become Maryland Attorney General.

After being assigned Ms. Brantley, the Maryland senator directly asked her several times to provide the requested advice. She neither did so nor provided an explanation for not doing so.  It would have been good government practice if she had informed the senator why she couldn’t provide objective advice and then suggested a replacement to help fine tune the bill. But that is a relatively minor offense compared to actually providing advice without disclosing a material conflict of interest.

Note that subsequent to the submission of Ms. Davis’s fiscal note her boss was asked by a member of the House of Delegates if he thought Ms. Davis had a conflict of interest.  Without seeking the relevant documentary evidence, her boss replied no. Given the conditions under which Ms. Davis was assigned to the SBNC, Ms. Davis’s boss should probably have forwarded the query to some independent ethics entity, assuming one has relevant jurisdiction.

Ms. Davis’s handling of my requests to the SBNC Chair for documents relating to the terms of SBNC commissioners is indicative of a negative bias against the public release of politically sensitive but public information.

 



From: ‘J.H. Snider’
Sent: Saturday, November 07, 2015 8:23 PM
To: ‘Davis, Michelle’
Cc: ‘Brantley, Sandra’ <sbrantley@oag.state.md.us>
Subject: RE: PIA Request

Dear Ms. Davis:

Thank you for your November 6, 2015 response to my September 28, 2015 Public Information Act request.  There has been substantial improvement in both the thoroughness and timeliness of your responses to my Public Information Act requests.  Thank you for that, too.

However, there are still some notable omissions:

  • Only some attachments were provided.  The most notable omission was the draft manual for the SBNC attached to your May 10, 2012 email to SBNC Chair Joshua Greene.  Since I raised the need for such a manual at least a dozen times over the years, especially in 2009 and 2014–and was told by Chair Greene one would be forthcoming–I was disappointed to see you omit it.
  • There are no emails to or from Chair Greene’s personal email address and no explanation of the omission, even though he clearly used that email address for some of his SBNC related correspondence.
  • The extent to which Chair Greene’s second work email address was searched is unclear, even though he clearly used that email address for some of his SBNC related correspondence.
  • It seems odd that in the entire SBNC correspondence subsequent to my June 5, 2015 Public Information Act request there is no discussion about which email accounts for Chair Greene would be searched or how they would be searched.  There is simply the unsupported assertion by Ms. Brantley from the Office of Maryland’s Attorney General that all relevant emails were provided by Chair Greene; there appears to have been no follow-up to Chair Greene seeking 1) clarification that email from all his email accounts with responsive email would be or were provided, and 2) the instructions given to Chair Greene’s secretary for choosing which emails to provide.
  • Maryland’s Public Information Act clearly specifies that the exemption used to withhold information must be specified; agencies must provide a “brief description of the undisclosed record that will enable the applicant to assess the applicability of the legal authority for the denial.” GP § 4-203(c)(1)(i)3.  It would have been nice if you and Ms. Brantley had chosen to comply with that provision.

Please send me the missing draft of the proposed SBNC manual.  Or, if you believe it is confidential information, please provide the Public Information Act exemption that you are citing for withholding it.  If I don’t hear back from you by the end of the day Wednesday of this coming week, I’ll send you another Public Information Act request requesting that document.  It would save both of us a lot of hassle if you simply sent it to me.

Again, since we both know the extent to which Maryland’s Public Information Act is a farce, I thank you for taking it as seriously as you have.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘Davis, Michelle’
Sent: Friday, November 06, 2015 3:11 PM
To: ‘J.H. Snider’
Subject: PIA Request

Mr. Snider,

This is one of 5 email / attachments representing your request for Anne Arundel School Board Nominating Commission emails dating back to Jan. 2010. One large file was too large send via email. This represents the remainder of the paper files we received from Chairman Josh Greene’s private work account.

Respectfully,
______________
Michelle L. Davis
Senior Policy Analyst; Redistricting, Election Law
Maryland Department of Legislative Services
Office of the Executive Director
90 State Circle, Rm. 222
Annapolis, Md 21401
410.946.5215


From: ‘J.H. Snider’
Sent: Sunday, November 01, 2015 7:05 PM
To: ‘Brantley, Sandra’ <sbrantley@oag.state.md.us>
Cc: ‘Davis, Michelle’
Subject: RE: PIA Request

Dear Ms. Brantley:

In response to your characterization of my use of the word “initial” (see my September 28, 2015 email to you), my initial Public Information Act request to Ms. Davis was dated June 5, 2015.  Ms. Davis’s initial written acknowledgment of that request was dated June 30, 2015 (itself weeks after and merely duplicative of her verbal acknowledgment).  As the 30-day July 3, 2015 Public Information Act deadline approached, I repeatedly emailed her reminding her of that deadline.

Your initial response to me was dated July 8, 2015.  The email to which you refer was dated July 10, 2015.  That is not my definition of “initial.”

My point was that you did not initially acknowledge that second email account from Mr. Greene’s work email account.  Nor had anyone from the SBNC ever publicly acknowledged it.  And this wasn’t the first time I had made a Public Information Act request for the SBNC Chair’s emails.

Moreover, in Ms. Davis’s initial fulfillment of my Pubic Information Act request on August 5, 2015, no emails from that work email account were searched.  Nor was there an acknowledgment of that omission.

As it turns out, Mr. Greene used three private email addresses for SBNC business: the one he publicized (sbncacc@gmail.com), his personal one (joshua.c.greene@gmail.com), and his work one (joshua.greene@squirepb.com).  His personal email address showed up when it was intermingled with his public one but not otherwise.  It thus appears that even as of today you have provided (to be sure, inconsistently at best) official SBNC email addresses from only two of the three currently known email addresses Mr. Greene used for SBNC business.  As a general rule, it appears that the more important and trusted you were (e.g., if you were the AACPS Public Information Office), the less likely were you to use the public email address.  But it’s impossible to tell for sure because a large fraction of the Chair’s TO: and FROM: email addresses included only a name, not an actual email address.

I should note that Ms. Davis’s fulfillment of my June 5, 2015 request on August 5, 2015—during the dead of summer when no one is paying attention to K12 school issues—represented a fulfillment period more than twice the number of days allowed under Maryland’s Public Information Act.  Just as justice delayed is justice denied, so is information delayed.  The delay could easily have been strategic for any number of reasons.  For example, it delayed providing controversial information to me until the SBNC’s election cycle was complete and the news cycle had already moved on.  It delayed providing information to me until Chair Greene’s and much of the rest of the Commissioners’ official duties and terms of office were essentially over.  And it delayed providing information to me until after the July, 7, 2015 announcement that Maryland’s Speaker of the House of Delegates was appointing Greene to the Maryland Economic Development Commission, a coveted position for a Squire Patton Boggs partner.

Given that my current request will also not be met by the Public Information Act’s 30-day deadline, it appears that neither you nor Ms. Brantley takes very seriously the 30-day requirement.  Alas, that is not the only part of the Public Information Act you and Ms. Brantley haven’t taken seriously.  Neither of you have responded to, let alone acknowledged, questions and observations I have repeatedly made concerning material omissions that might violate the Public Information Act.

Ms. Davis’s August 5, 2015 response to my June 5, 2015 Public Information Act request is copied in full below.  What is most interesting is what isn’t said, not what is said.  For example, there is no mention of the additional email accounts that weren’t searched:

From: ‘Davis, Michelle’
Sent: Wednesday, August 05, 2015 3:17 PM
To: ‘J.H. Snider’
Subject: PIA Request

Mr. Snider,

Attached is an electronic PDF file of Anne Arundel School Board Nominating Commission emails dating from June 5, 2015 to February 2015. Your amended PIA request was for the most recent emails until you made a decision to either narrow the scope of your original request or agree to the fee terms discussed earlier. Please note the attached emails have been redacted or omitted in cases where the subject matter of the email was not related to the public business of the commission or if the contents fell within one of the statutory exceptions including but not limited to the letters of reference exemption in GP §  4-310 and the personnel records exemption under GP § 4-311. Please indicate how you would like to proceed going forward with your request.

Respectfully,
______________
Michelle L. Davis

A reasonable but incorrect inference from your email combined with Ms. Davis’s response was that the SBNC Chair’s “public” and work email accounts to which you referred were indeed duplicative during the time period Ms. Davis covered in her response to my Public Information Act request.

I am acutely aware that Mr. Greene used two types of “private” email accounts to conduct his official SBNC business.  One type was made public; the other was kept a closely held secret.  In both cases, Mr. Greene retained complete control of his email archives—the type of private control of official email that has become so controversial in the much-publicized Hillary Clinton email case.  I do agree that I should have done a better job defining the words “private” and “public” in these two very different contexts.

You have expressed 100% confidence that Mr. Greene, who earns his living as a Washington, DC lobbyist at one of the largest and most powerful lobbying firms in the world (Squire Patton Boggs), would provide all emails from both accounts in response to a Public Information Act request (e.g., you wrote: “I have worked with Ms. Davis and Mr. Greene for several years and have no concerns whatsoever that they have deleted any emails since receipt of your PIA request.”).  The question is not whether they were trustworthy but whether they complied with the law and whether that can be reasonably ascertained.   I replied in my July 10, 2015 email to you that such blind confidence should be unwarranted for any individual and certainly not for Mr. Greene:

As for your assertions about Chair Greene’s email retention policy, do you have any evidence to support your claim except vague character testimonials?  If so, what exactly is your evidence?  What checks & balances, including penalties, are in place to prevent this type of selective email record keeping, which we know to be a chronic problem among public officials, especially AACPS officials?  Given public officials’ incentives with regard to their emails, why should the burden of proof be placed on the requester?  For example, I know for a fact that Chair Greene has not been able to find a highly material email that he claims to have sent in compliance with Maryland’s right-to-know laws.  Why not at least get a written statement from Chair Greene that he has not deleted any of his emails, or at least an explanation from him how he chooses what official emails he keeps for purposes of a Public Information Act request?

As an analogy, imagine a business or government allowing a cashier to both collect and account for all monies without any independent verification.  Every responsible manager would recognize that the issue is not whether you trust the cashier but whether you create perverse temptations for the cashier to cheat.  Admittedly, I read AACPS policy as implicitly saying that its employees have a fiduciary duty to discreetly destroy controversial emails (such as electioneering and lobbying related information) in response to a Public Information Act request for them.  So as regards the school system my analogy may not be exactly apt.

Ms. Brantley, when you are serving as legal counsel within Maryland’s Office of the Attorney General, it is the public’s expectation that you will take off your hats as a former political campaign manager and legal advocate and put on your hat as an objective legal advisor.  I don’t believe that you have worn that hat here.  I hope that when members of the Maryland General Assembly seek your advice about Maryland’s right-to-know laws, you will take care to uphold the reputation of your office.  As General Assembly members know, you are not obliged to respond in a timely manner or to respond at all (this is unlike the Public Information Act, where the law mandates a timely response).  But if you do respond, I hope you will keep in mind your role as an objective information source and explicitly recuse yourself if that proves impossible.  As someone intimately familiar with public officials’ games to avoid complying with the spirit of the Public Information Act (note my use of the qualifier “spirit”), you could actually provide a great public service by sharing this information.

Lastly, I would like to note that I appreciate how difficult it is for the Maryland Office of the Attorney General to follow the law.  Following the law does require work.  But when the Attorney General is tasked with enforcing laws for average citizens, it tends to adopt a different standard.  For example, being busy, not knowing the law, or not liking the law are generally not accepted as excuses for disobeying the law.  The government also generally seeks evidence that material evidence hasn’t been destroyed when the person who has that evidence would have a strong motive for destroying it.  Knowing how difficult law enforcement is, the Attorney General should also show some sympathy when the law forces the average citizen—without any available class action mechanism—to take on the role of enforcer, which is the Maryland Public Information Act’s primary enforcement mechanism.  Unlike the attorneys in your office, citizen enforcers are unlikely to have either a legal degree or be paid for their efforts.  Moreover, under your interpretation of the Public Information Act, the citizen is forced to pay for the law’s enforcement, as there are no mandated fee waivers even if the request complies with the Public Information Act’s public interest guidelines.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: Brantley, Sandra [mailto:sbrantley@oag.state.md.us]
Sent: Wednesday, October 28, 2015 4:45 PM
To: ‘J.H. Snider’
Cc: ‘Davis, Michelle’
Subject: RE: PIA Request

Mr. Snider:

This is a response on behalf of Ms. Davis, who serves as staff to the Anne Arundel County School Board Nominating Commission on behalf of the Department of Legislative Services (“DLS”). Nevertheless, please understand that Ms. Davis has other job duties and responsibilities for DLS. Ms. Davis intends to fulfill your latest PIA request as soon as is reasonably practicable. DLS recently undertook administrative structural changes. As part of the reorganization, Ms. Davis has been given additional areas of responsibility. As a result, there will be some delay in providing you the additional records you request. Since you made your PIA request for 5 ½ years’ worth of emails, I am advised that Ms. Davis has provided you with nearly 400 pages of emails. Thus, I cannot conclude she has been dilatory in responding to you.

A final note – you have repeatedly charged Ms. Davis and “the Office of Attorney General” of failing to inform you that former SBNC Chair Joshua Greene used “a second private email account.” I am puzzled by this accusation. In an email to you on July 10, I informed you of the status of your PIA request. I stated (emphasis added):

“Regarding a count of the emails – from June 5, 2015 (the date of your request) back to January 1, 2010, there are 849 emails on the SBNC’s gmail account. In addition, Mr. Greene searched his work email account for any emails sent to or from that account regarding the SBNC and has delivered a box of those emails to Ms. Davis for review.”

Thus, you were informed early on that Mr. Greene used his private law firm account for some SBNC business and thus searched that account for responsive emails and delivered those emails to Ms. Davis for review. As you know, neither Mr. Greene nor anyone else on the SBNC were provided a government email account for the SBNC. As a result, Mr. Greene created a Gmail account to use for SBNC. In other words, Mr. Greene used a “private” email because he was not given a “government” one. That he chose at some point to create and use an account for SBNC rather than his law firm email account is understandable and certainly not improper, if that is your implication.

Sincerely,

Sandy Brantley
Counsel to the General Assembly
Office of the Attorney General
410-946-5600
sbrantley@oag.state.md.us


From: ‘J.H. Snider’
Sent: Tuesday, October 27, 2015 4:57 PM
To: ‘Davis, Michelle’; Brantley, Sandra <sbrantley@oag.state.md.us>
Subject: RE: PIA Request

Dear Ms. Davis and Ms. Brantley:

Today marks the 30th day since my September 28, 2015 Public Information Act request.  If I don’t hear back from you by the end of this week, I will assume that your intent is not to fulfill it.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘J.H. Snider’
Sent: Friday, October 23, 2015 12:17 PM
To: ‘Davis, Michelle’
Cc: Brantley, Sandra (sbrantley@oag.state.md.us) <sbrantley@oag.state.md.us>
Subject: RE: PIA Request

Dear Ms. Davis:

Please let me know if you intend to comply with my September 28, 2015 Public Information Act request.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘J.H. Snider’
Sent: Monday, October 05, 2015 5:42 PM
To: ‘Davis, Michelle’
Cc: Brantley, Sandra (sbrantley@oag.state.md.us) <sbrantley@oag.state.md.us>
Subject: RE: PIA Request

Dear Ms. Davis:

You should have received the check by today.  If you haven’t, please let me know.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘J.H. Snider’
Sent: Monday, September 28, 2015 2:46 PM
To: ‘Davis, Michelle’
Cc: Brantley, Sandra (sbrantley@oag.state.md.us) <sbrantley@oag.state.md.us>
Subject: RE: PIA Request

Dear Ms. Davis:

Thank you for substantially complying with my June 5, 2015 Public Information Act request.   I am glad that you finally chose to include the emails sent using the SBNC Chair’s second private email address.  It would have been helpful if you and the Office of the Attorney General had initially acknowledged that email account.  I trust that there are no other unacknowledged private email accounts used to conduct the SBNC’s business.  I also trust that, as I requested, you sent me all responsive emails through August 2015.

The only non-compliant responses that I detected were 1) the omission of BCC:’s (e.g., obvious from the SBNC Chair’s sending email to himself, a classic technique among those who use the BCC: field to hide correspondents’ names), 2) missing attachments, and 3) no acknowledgment of or explanation why certain emails and attachments were withheld.

In tomorrow’s mail, I will send you a check for $41, payable to the Anne Arundel School Board Nominating Commission, for you to go through the remaining responsive emails from January 1, 2010 until this Public Information Act request is fulfilled.  Please start at the January 1, 2010 date and go forward in time as far as possible within the budget constraint.  You should receive the check by Friday of this week at the latest.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘Davis, Michelle’
Sent: Thursday, September 24, 2015 6:52 PM
To: ‘J.H. Snider’
Subject: PIA Request

Mr. Snider

I’ve attached the emails from your most recent Public Information Request. This is correspondence from the chairman’s work email account, as we discussed.
______________
Michelle L. Davis
Senior Policy Analyst; Redistricting, Election Law
Maryland Department of Legislative Services
Office of the Executive Director
90 State Circle, Rm. 222
Annapolis, Md 21401
410.946.5215


From: ‘J.H. Snider’
Sent: Saturday, August 29, 2015 11:38 AM
To: ‘Davis, Michelle’
Cc: Brantley, Sandra (sbrantley@oag.state.md.us) <sbrantley@oag.state.md.us>
Subject: RE: PIA Request

Dear Ms. Davis:

Thank you for sending me a subset of the requested attachments from January through August 2015.

You still haven’t explained to me how it can be that the SBNC Chair coordinates meeting times and other administrative business with SBNC commissioners without leaving an email trail.  But after requesting this information a half dozen times from you and your advisor, Sandra Brantley from the office of Maryland’s attorney general, I’ve finally gotten the message that this is among the many Public Information Act questions I’ve asked you that you’ve chosen to ignore.  The larger point is that it is generally considered good practice with public records laws to provide the public with an inventory of places where responsive documents are located.  It is exactly this type of information that you have most resisted providing, leading to a Catch 22 situation for requesters: you won’t tell them where the information is located, and you won’t provide them with information unless they already know where it is located.

Of the official emails from the period between January through August 2015 that you said you examined, please let me know what percentage you classified as exempt from public disclosure.  Please also provide the total number of emails during that period.  The number for the total should take only a few seconds, as Outlook will give you a total for the number of emails collected with any filter, such as a search on emails containing sbncacc@gmail.com.  Once I have the total email count from the period of time you searched, I can infer the number classified as exempt by deducting the number of emails you sent me.

As for your comment below explaining why you haven’t sent me the SBNC Chair’s official email correspondence using an address other than sbncacc@gmail.com, it is flat out wrong:

“Emails sent from the chairman have been collected and are in my possession in paper form. If you would like to expand [my italics] your request to those specifically, please do let me know.”

The wording of my June 5, 2015 Public Information Act request was:

“Under the Maryland Public Information Act, State Government Article (SG) §§ 10-611, et seq., I request a copy of the following information concerning public records of the Anne Arundel School Board Nominating Commission: from January 1, 2010 until this Public Information Act request is fulfilled, all emails sent to or from you, Joshua Greene, concerning the Anne Arundel School Board Nomination Commission.”

All of the Chair’s email correspondence, not just that to and from his publicly disclosed email address, was covered by that request.  The fact that your August 28, 2015 email to me is the first to acknowledge the existence of emails concerning official AACPS business sent to and from another, unpublicized email address, should be shameful to both you and the office of Maryland’s attorney general.  August 28, 2015 is more than eleven weeks since my June 5, 2015 Public Information Act request.

In today’s mail, I sent you a check for $41, payable to the Anne Arundel School Board Nominating Commission, for you to go through the responsive emails from January through August 2015 sent by the SBNC Chair from an email address other than that released to the public: sbncacc@gmail.com.  I thought you had already gone through those emails, but your August 28, 2015 email to me indicates that I was mistaken.  You should receive the check by next Tuesday.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘Davis, Michelle’
Sent: Friday, August 28, 2015 1:14 PM
To: ‘J.H. Snider’
Subject: RE: PIA Request

Mr. Snider,

Attached are the “attachments” to the SBNC emails released to you last week. In regards to your question; these emails are from the commission’s official GMAIL account. Emails sent from the chairman have been collected and are in my possession in paper form. If you would like to expand your request to those specifically, please do let me know. To date, the initial 2 hours that you have agreed to pay for have been far exceeded.
______________
Michelle L. Davis
Senior Policy Analyst; Redistricting, Election Law
Maryland Department of Legislative Services
Office of the Executive Director
90 State Circle, Rm. 222
Annapolis, Md 21401
410.946.5215


‘From: J.H. Snider’
Sent: Sunday, August 23, 2015 5:04 PM
To: ‘Davis, Michelle’
Cc: ‘Brantley, Sandy (OAG)’
Subject: RE: PIA Request

Dear Ms. Davis:

I’ve now had a chance to glance at the documents you sent me.  Concerning the emails on SBNC related business that the SBNC Chair sent via an email account other than his public SBNC email address, I would like you to clarify that you looked over the box of these emails and that none were responsive to my Public Information Act request.  Nothing in either your correspondence or that of Sandra Brantley in the office of Maryland’s Attorney General acknowledges those emails or explains how you chose to deal with them.  For example, both your and her count of responsive emails fails to include them.  You have also not accounted for the emails sent via the SBNC’s separate Gmail email address, which I believe is separate from the AACPS news releases.  Obviously, SBNC members must coordinate on meeting dates and other administrative details before the SBNC Chair can announce them publicly via AACPS.  That correspondence is missing from the documents you sent me.  If there are any other unpublicized email addresses the SBNC Chair uses to conduct official SBNC business, please let me know.

I recognize that in your August 21, 2015 email to me you acknowledged not yet completing your response to my Public Information Act request.  When you do complete it, I look forward to receiving the full set of responsive documents from January 17, 2015 to August 5, 2015.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘J.H. Snider’
Sent: Friday, August 21, 2015 4:54 PM
To: ‘Davis, Michelle’
Subject: RE: PIA Request

Dear Ms. Davis:

I look forward to receiving all the attachments next week.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘Davis, Michelle’
Sent: Friday, August 21, 2015 3:15 PM
To: ‘J.H. Snider’
Subject: PIA Request

Mr. Snider,

Attached are three electronic PDF files of the Anne Arundel School Board Nominating Commission’s emails dating from Aug 5 – June 1 and from Feb 17 to Jan 27. This represents just over 2hrs of tagging, sorting, reviewing and preparing the files for electronic transmittal. There are 30 or so additional documents to be released that were attachments to these emails, however those must be sent separately next week since I must have them manually scanned to make an electronic file that includes all of them. I trust these files will fulfill your current request of two additional hours going back in time from May 2015.

Respectfully,
______________
Michelle L. Davis
Senior Policy Analyst; Redistricting, Election Law
Maryland Department of Legislative Services
Office of the Executive Director
90 State Circle, Rm. 222
Annapolis, Md 21401
410.946.5215


From: ‘J.H. Snider’
Sent: Monday, August 10, 2015 3:51 PM
To: ‘Davis, Michelle’
Cc: ‘Brantley, Sandra’
Subject: RE: Regarding your August 5, 2015 response to my June 5, 2015 Public Information Act request

Dear Ms. Davis:

In a letter addressed to you and postmarked last Friday, I sent you a check for $82 for two hours of additional compliance with my Public Information Act request.  You should have received it in the mail by today.  If you haven’t, please let me know.

Ms. Brantley, assuming the role of Maryland’s attorney general in providing legal advice to the SBNC is to be an objective arbiter of the law on behalf of the public rather than legal advocate on behalf of the SBNC, you might want to revise your opinion letter in light of the emails that the SBNC actually released in response to my Public Information Act request.  Specifically, you might want to comment on not only what the SBNC can exclude with plausible deniability (clearly, the only advice the SBNC wanted you to provide) but what it can and should have actually disclosed both in terms of the spirit and letter of the law.  For example, you might want to comment on the deletion of email attachments, the range of dates chosen contrary to what was requested, the apparently missing official correspondence among SBNC commissioners, and the use of a non-government email system for SBNC official correspondence.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘J.H. Snider’
Sent: Friday, August 07, 2015 10:46 AM
To: ‘Davis, Michelle’
Subject: RE: Regarding your August 5, 2015 response to my June 5, 2015 Public Information Act request

Dear Ms. Davis:

Since I hadn’t heard back from you about payment methods, I called your office this morning and left a voice message requesting the information, including to whom I should make a check payable.  As I mentioned in my message, if I don’t hear back from you by noon today, I’ll make the check payable to the Anne Arundel School Board Nominating Commission and send it to your address.  You should then receive the check by Monday.  In the future, if the SBNC demands payment for fulfilling a Public Information Act request, it would be a courtesy to requesters to include the necessary payment information.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘J.H. Snider’
Sent: Thursday, August 06, 2015 9:40 AM
To: ‘Davis, Michelle’
Subject: Regarding your August 5, 2015 response to my June 5, 2015 Public Information Act request

Dear Ms. Davis:

Thank you for your August 5, 2015 email at least partially complying with my Public Information Act request dated June 5, 2015.  I have some observations concerning that correspondence.  If the following observations are wrong, I would welcome your correction.

  • Your response took more than 60 days even though the law requires a response in 30 days.
  • There were no responsive records after June 1, 2015.  I asked for responsive documents until the Public Information Act request was fulfilled, which was August 5, 2015.   The SBNC did not finish its public hearings on the current round of candidates until late June and even then its official obligations did not end. My purpose in making the request in early June was that I very much doubted you would fulfill the request until the last possible moment—and certainly not before the current round of nominations was done in late June—so my request would include the current and most newsworthy round of nominations.  On the other hand, I did hope you would comply within the law’s 30 day limit so the results would not be old news.
  • All attachments were excluded, even when they unquestionably were public documents.
  • All communications with School Board Nominating Commission members were excluded except an email from one of the two representatives from the teachers union, TAAAC Executive Director Bill Jones: “Thank you, Josh”
  • All electioneering correspondence on behalf of the applicants were excluded.
  • The financial disclosure statements of nominated candidates were treated as exempt documents even though they are held by Molly Connolly, secretary to the AACPS Board of Education, and Board of Education financial disclosure statements are public documents (at least according to the law).
  • There was no financial disclosure correspondence for the applicants nominated during the June 2015 round of applications.
  • All communications from elected officials regarding delays in the in the process were excluded.  It is possible that the communications were directed to Bob Mosier, but I know at least one staff member of an elected official who communicated with Joshua Greene about the delays.
  • All bcc: information was excluded without visible redaction.
  • The communications to the Gmail distribution list were excluded even though they are from the chair of the School Board Nominating Commission.
  • You said it took you 2 hours to select these emails.  I presume that was because you decided most of the mails you reviewed were not responsive to my request.  Otherwise, it would be hard for me to imagine that you took more than 15 minutes to review these emails.  Although the length of the response was nominally 76 pages, the great majority of the emails were duplicates and the amount of original text (excluding my emails) was no more than 10 pages in length and perhaps as little as a few pages given the predominance of white space in the emails.

Please let me know whether you blacked or whited out the redactions.  The law expects you to black them out, not white them out.  It looks to me that you might have whited them out; for example, the correspondence with the chief of staff of Maryland House of Delegates Speaker Mike Busch.

Please let me know who is on the Gmail distribution list and why, despite more than a dozen requests since early 2008 to the chair of the SBNC to be included on any email list sent public notices and other public business concerning School Board Nominating Commission meetings, I was not included on that list.

Regardless of what you choose to omit, please fulfill my Public Information Act request using the date range I specified: “from January 1, 2010 until this Public Information Act request is fulfilled.”  That would make August 5, 2015 the most recent date and thus include the period from August 5, 2015 to June 1, 2015.  I believe that since it was your error not to include those emails, they should be included in the original two hours allocated to me.

In any case, I now authorize you to spend another two hours gathering more emails further back in time.  As before, please email them to me.  I can pay by check or credit card, the latter of which would be more convenient for me.  I hope you can get back to me by tomorrow with the payment methods acceptable to you.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘Davis, Michelle’
Sent: Wednesday, August 05, 2015 3:17 PM
To: ‘J.H. Snider’
Subject: PIA Request

Mr. Snider,

Attached is an electronic PDF file of Anne Arundel School Board Nominating Commission emails dating from June 5, 2015 to February 2015. Your amended PIA request was for the most recent emails until you made a decision to either narrow the scope of your original request or agree to the fee terms discussed earlier. Please note the attached emails have been redacted or omitted in cases where the subject matter of the email was not related to the public business of the commission or if the contents fell within one of the statutory exceptions including but not limited to the letters of reference exemption in GP §  4-310 and the personnel records exemption under GP § 4-311. Please indicate how you would like to proceed going forward with your request.

Respectfully,
______________
Michelle L. Davis
Senior Policy Analyst; Redistricting, Election Law
Maryland Department of Legislative Services
Office of the Executive Director
90 State Circle, Rm. 222
Annapolis, Md 21401
410.946.5215


From: ‘J.H. Snider’
Sent: Friday, July 10, 2015 4:59 PM
To: ‘Brantley, Sandra’
Cc: ‘SBNC’; ‘Davis, Michelle’
Subject: RE: PIA request

Dear Ms. Brantley:

I need to correct some apparent misperceptions in your email to me:

I have no disdain for Chair Greene in the way that you imply.  On the contrary, I have the highest respect for Chair Greene’s skill in acting in accordance with the task he has been given.  My quibble is with the task, not the person.  The SBNC has tasked Chair Greene with being its representative, including its spokesperson, in all dealings with the press.  Thus, all my dealings with the SBNC have necessarily centered on Chair Greene.  When Chair Greene says one thing to the public and does something else in private, it does ruffle my feathers.  But again, I would not expect anyone else facing his institutional incentives to act differently.

As for the SBNC, I do consider its design a democratic travesty and have said so many times in my various publications.  But my complaint is with the incentives created by the institution, not the people who act in accordance with those institutional incentives.  By personalizing my complaints with the SBNC, you are acting to trivialize what I consider to be very serious systemic problems.  If you stuck to responding to my specific concerns with the implementation of the Public Information Act, I think we’d all be better off.

As for Counsel Davis, she is an eminently likable and even idealistic attorney.  But she seems to have understood that it is her job as SBNC’s counsel to provide me with as little information as possible and not without first getting permission from Chair Greene, which can be a time consuming process.  Chair Greene, in turn, passed along my Public Information Act request to the SBNC commissioners and apparently waited for their response before deciding how to respond. I don’t believe the authors of Maryland’s Public Information Act envisaged such a time consuming and politicized response system, and I would ask you for your legal opinion whether it was appropriate for the SBNC to discuss how to respond to my Public Information Act request in closed executive session and possibly also via official email correspondence.  I should add that it was immensely frustrating for me when Counsel Davis refused in our face-to-face discussions at the June 16, 2015 and June 24, 2015 SBNC public meetings to express any of her concerns with my June 5, 2015 Public Information Act request and then sent me a terse and ambiguous response only one business day before the effective 30 day limit for responding to it (Friday, July 3, 2015 was a holiday).  The type of concerns and queries she expressed should have been done within ten days of receiving my Public Information Act request.

On the “letters of reference” question, the issue may be reduced to which side has the burden of proof.  As I’ve said many times (and I believe you even used some of my public testimony concerning the SBNC Framers’ original intent in a legal opinion to a member of Maryland’s General Assembly), the statute creating the SBNC is a vivid example of sloppy legislative workmanship that, as you know very well, failed to address many material issues.  I would suggest that the burden of proof should be on those seeking secrecy, not openness, especially when the policy of secrecy has been newly implemented without any public notice or discussion.  It has now been five months since I first raised the written electioneering (aka letters of reference) secrecy issue with Chair Greene.

Of course, I have not seen the letters of reference and have no particular reason to believe they were in any way instrumental in the last set of SBNC nominations.  For example, for the appointments made in June, 2015, I correctly predicted to my wife as soon as the names of the applicants were publicly released who would be the two nominees for District 30 and District 31.  I did so to point out that the public hearings in that particular case—where the serious candidates were already well known—would be a mere formality.

The concern with secret letters of reference is that in this particular context they will foster a Star Chamber set of incentives, to say nothing of a culture of good-ole-boy, insider dominated politics.  Nothing in what you have said responds to this principle-based objection to what I take to be secret electioneering.  If the SBNC publicly announced its secrecy policy—and its limits—regarding this type of electioneering, I would have less of an objection.  Of course, the details would still matter, such as the extent to which the new de facto policy of secrecy was preserved and the extent to which the SBNC chair had exclusive access to this political intelligence.  It is also a concern that the emails go through AACPS, given that its Board of Education has a clear conflict of interest in this matter.

I should add that when I say “particular context,” I mean that as an important qualifier.  Judicial selection is not an apt precedent as many special considerations apply to judicial selection.  Nor do I think that the release of the names and biographical information of applicants to other specialized public bodies (never even a question in the context of the SBNC, as these have always been treated as public) should serve as an apt precedent.  We are talking here about third party electioneering, not a candidate’s job application.  These are very different contexts.  Based on your emails to me and the attached Maryland Attorney General opinion letters, which I consider to be irrelevant to this case (perhaps there are other more relevant opinions?), you appear to be endorsing the SBNC’s quest for a massive expansion of the personnel record exemption in a context where it could do great public harm.  I wonder if Maryland’s Attorney General Brian Frosh would really want to endorse such an expansion.  In any case, I would be happy to help you draft a reasonable personnel record exemption for the SBNC.  Yes, there are reasonable conditions to apply a personnel record exemption.  But the SBNC’s proposed exemption goes well beyond that.

I couldn’t have been clearer in my request to separate the email count into two batches: one prior to June 30, 2014 and one after July 1, 2014.  Please provide the counts as I requested them.

As for your assertions about Chair Greene’s email retention policy, do you have any evidence to support your claim except vague character testimonials?  If so, what exactly is your evidence?  What checks & balances, including penalties, are in place to prevent this type of selective email record keeping, which we know to be a chronic problem among public officials, especially AACPS officials?  Given public officials’ incentives with regard to their emails, why should the burden of proof be placed on the requester?  For example, I know for a fact that Chair Greene has not been able to find a highly material email that he claims to have sent in compliance with Maryland’s right-to-know laws.  Why not at least get a written statement from Chair Greene that he has not deleted any of his emails, or at least an explanation from him how he chooses what official emails he keeps for purposes of a Public Information Act request?

Regarding the “announcement list,” your response has nothing to do with my question.  Please reread my question and actually respond to it.

Regarding “work and time estimates,” my comment about a few mouse clicks was taken out of context.  I was referring to the time required to filter email for review based on a simple search query and then forward those emails to a reviewer.  I stand by that estimate.  Obviously, I have no control over how much time you spend redacting the resulting emails.

I am not averse to limiting my search to emails among SBNC commissioners; I am only interested in official correspondence among the SBNC commissioners.  My problem is that I was unable to think of a simple search query to do so, and I didn’t want to add yet another time consuming and subjective criterion to your search and information vetting processes.  If you could come up with a simple and objective way to limit the search to emails among SBNC commissioners, I would be more than happy to limit my Public Information Act request accordingly.

I’ll take your fee waiver response as a statement from Chair Greene that he reserves the right to waive fees but does not believe my Public Information Act request is in the public interest.

I have raised important and legitimate public policy concerns.  It is unfortunate that the SBNC, Chair Greene, and now you not only dismiss them but are taking actions to prevent the public from having a factual basis on which to base a discussion.  I should add that legislation has been introduced in both branches of the Maryland General Assembly concerning the SBNC’s processes every year for the last half dozen years and that my commentaries in many of those years have been an important part of that public discussion.

AACPS has a track record of finding one excuse or another to drag out responding to my Public Information Act requests, taking out a pound of my flesh in the process, and then not quite delivering the promised goods.  I briefly covered some of this game playing in my Washington Post op-ed, “Maryland’s Fake Open Government,” my Baltimore Sun op-ed, “The Clinton email scandal: a double standard?” and my eLighthouse.info report, “AACPS Thumbs Its Nose on Maryland’s Vague and Meaningless Ban on Using Government Resources for Political Activity.”   Needless to say, public officials of all types hate responding to Public Information Act requests for their emails.  It’s not clear to me if you are acting in an attorney-client relationship with Chair Greene or as a public fiduciary providing an independent, objective source of legal opinion.  If the latter, which I believe to be the case, I hope you will keep in mind why public officials have frequently abused Maryland’s right-to-know laws, especially with regard to access to public officials’ public emails.  The burden of proof should be on public officials seeking secrecy, not the public seeking material information about their performance in office.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: Brantley, Sandra
Sent: Friday, July 10, 2015 12:30 PM
To: ‘J.H. Snider’
Cc: ‘SBNC’; ‘Davis, Michelle’
Subject: RE: PIA request

Mr. Snider:

With regard to the “Letters of Reference” mandatory PIA exemption, your arguments against the State’s policy as applied to the School Board Nominating Committee are irrelevant with regard to the pending PIA. There is nothing to suggest that the General Assembly intended to require disclosure of Letters of Reference written for or against applicants for the Anne Arundel School Board. As for your request for “any SBNC document” regarding a policy about written testimony, we will treat that as a PIA request and I have asked Ms. Davis to search for public records, if any, of such a policy.

Regarding the “selection of emails,” Ms. Davis will send you the most recent emails that she has been able to review. Moreover, I have worked with Ms. Davis and Mr. Greene for several years and have no concerns whatsoever that they have deleted any emails since receipt of your PIA request.

Regarding the “announcement list” – public agencies are not required to create documents in response to a PIA request, thus Mr. Greene was under no legal obligation to create an email list for you. Moreover, it is my understanding that SBNC communications are done through the Anne Arundel County Public Schools (AACPS); as a result, Mr. Greene does not know who is on the AACPS listserv. You should direct your questions about the listserv to AACPS.

Fee waiver – I am not the person who determines whether a fee waiver is warranted. Mr. Greene, as Chair of the SBNC, has the discretion to determine whether to grant a waiver. He has not been persuaded that it is in the public interest to waive the fees.

Work and time estimates: No one has asked you for “a blank check.” To the extent that Ms. Davis or I have been unclear, let me clarify: she has given you a good faith estimate of how long she determined it will take to review the emails—if it takes Ms. Davis longer than she told you, you will not be charged extra. In terms of a “formula” for estimating time, Ms. Davis provided me with copies of a number of the emails so that I could advise her about potential exemptions. I read through a number of them to get an idea of how long it would take to review. I took note of the time I started and the time I stopped. My review time was consistent with Ms. Davis’ estimate. As I explained before, the review is more than “a few mouse clicks.” Ms. Davis will keep time records as she works.

Regarding a count of the emails – from June 5, 2015 (the date of your request) back to January 1, 2010, there are 849 emails on the SBNC’s gmail account. In addition, Mr. Greene searched his work email account for any emails sent to or from that account regarding the SBNC and has delivered a box of those emails to Ms. Davis for review. Many of those emails are duplicates of the ones on the gmail account, but we will not know until those have been reviewed.

Finally, it is apparent that you have much disdain for the SBNC, and for Mr. Greene and Ms. Davis. You are entitled to your opinion. Nevertheless, I hope we can all  remain professional so that we complete your PIA request.

Sandy Brantley


From: ‘J.H. Snider’
Sent: Thursday, July 09, 2015 1:35 PM
To: ‘Brantley, Sandra’
Cc: ‘SBNC’; ‘Davis, Michelle’
Subject: RE: PIA request

Dear Ms. Brantley:

I would like to respond to some of the points you make.  But first, I’d like to note that the public would be better served if the SBNC spent less of its time and creative energy devising justifications for operating in secret rather than complying with the spirit of Maryland’s right to know laws and its own pronouncements concerning the value of public participation and its desire to encourage it.  I’d make the same observation about SBNC’s public website.  The public would be better served if the SBNC spent less time removing content and more time adding it, which has been woefully incomplete, out-of-date, and often misleading.

Letters of reference.  Over the years, the SBNC has provided the public with an opportunity to comment on the merits of the candidates at SBNC public hearings.  This year’s lame duck SBNC announced that in addition to providing verbal letters of reference, the public could provide written letters of reference.  No mention was made of your claim that if recommenders provide written as opposed to verbal recommendations they may hide behind a stone and attack the character of a candidate without any opportunity for that candidate to rebut the character assassination or for other candidates to rebut false claims of a candidates’ merits.  After this new policy allowing written testimony as a supplement to verbal testimony was announced in early 2015, I asked SBNC Chair Joshua Greene to post the written testimony on the SBNC’s website.  He replied that it was the responsibility of AACPS, not SBNC, to post SBNC documents on the website.  At no point did he indicate written testimony would be treated differently from verbal testimony as it applies to its status as a public document.  And since it is routine for the SBNC not to post vital public records of its proceedings, including minutes, reprimands from Maryland’s Open Meetings Compliance Board, and even letters of opinion from your office, I would have no reason to infer the theory now being proposed concerning letters of reference.   In the letter to SBNC attorney Michelle Davis to which you responded, I also asked her to provide any recent public document (e.g., from January or February 2015) announcing to the public that written recommendations as opposed to verbal recommendations to the SBNC would be viewed as secret communications.  In your letter, you neither acknowledged nor responded to that request.  My specific wording was:  “Can you point me to any SBNC document or public statement that suggests that written testimony, unlike verbal testimony, is to be treated as secret communication?  I don’t believe such a document exists.”

Sure, there are many circumstances where letters of reference should be kept private–but not under the specific circumstances that apply here.  I view these so-called written letters of reference as more in the nature of secret lobbying and dirty money campaign contributions rather than how you characterize them.  There may not be a written law that electioneering of the SBNC must be done in public, but I believe that as a matter of past practice, public perception, and the intent of the framers of the statute creating the SBNC (admittedly a very vague and poorly drafted statute, as you know well), that is the way these “letters of reference” should be characterized.  Remember that the SBNC was sold to the public as part of an election system (even if nominees were only subject to an approval election at the next general election), where the SBNC served the nominating function.  Your theory would suggest an intent to return to the days of closed door good-ole-boy party nomination systems in Maryland.  Analogously, there is a reason we generally require defendants and plaintiffs to present their arguments in public in a court of law.  The practice of secret testimony is associated with Star Chamber justice and that is certainly the type of justice AACPS applicants would get if the type of blanket secrecy theory you propose were adopted in this electoral context.  It was also unjust if only insider and incumbent applicants knew that they could have a competitive advantage by utilizing the secret recommendation stratagem.

The selection of emails I requested.  You say: “Ms. Davis is preparing to send you some emails free of charge.”  I didn’t ask her to use the two hours of free time to send me either a random selection of emails or emails of her choosing.  I asked her to send me the most recent ones in reverse chronological order.  As I wrote: “starting with the most recent e-mail, work back in time until you reach the two hour limit.”  I also trust that due diligence will be done to ensure that Chair Greene has not deleted emails in response to this Public Information Act request.  In your response, please note what, if any, due diligence to that effect has been done.  In the past, deletion of materially relevant emails has been a serious problem with SBNC Chair Greene (e.g., review his correspondence with the Open Meetings Compliance Board).

The so-called SBNC announcement list.  You say: “from my inspection of the emails, it looks like a separate record is created for each person who signed up to receive the SBNC’s announcements.”  This is remarkable information.  Since 2008, I have asked SBNC Chair Joshua Greene more than a dozen times to create such an email list and send it to me.  During the early years of the SBNC, he ignored my request for such information.  This led me to file several complaints to the Open Meetings Compliance Board (the Open Meetings Compliance Board ruled in my favor).  In recent years, perhaps in response to the Open Meetings Compliance Board ruling, he said that AACPS Public Information Officer Bob Mosier sent out such a list and so SBNC did not have to.  Please show me where there is this signup to receive SBNC announcements that you refer to.

Fee waiver.  You ignored my request for a fee waiver: “I also request that you consider waiving the fee, which you are both allowed and encouraged to do under Maryland law.”  I’d like to point you to the following legal advice prepared by your office concerning fee waivers:

  1. C. Waiver of FeesAn applicant may ask the agency for a total or partial waiver of fees. Under GP§4-206(e), the official custodian may waive any fee or cost assessed under the PIA if the applicant asks for a waiver and if the official custodian determines that a waiver would be in the public interest.To determine whether a waiver is in the public interest, the official custodian must consider not only the ability of the applicant to pay, but also other relevant factors. A waiver may be appropriate, for example, when a requester seeks information for a public purpose, rather than a narrow personal or commercial interest, because a public purpose justifies the expenditure of public funds to comply with the request. For example, in one case, the Court of Special Appeals found that Baltimore City’s denial of a reporter’s request to waive fees was arbitrary and capricious because the City only considered the expense to itself and the ability of the newspaper to pay and did not consider other relevant factors. The Court suggested that relevant factors included the public benefit in making available information concerning one of the City’s major financial undertakings and the danger that imposing a fee for information upon a newspaper publisher might have a chilling effect on the full exercise of freedom of the press. City of Baltimore v. Burke, 67 Md. App. 147 cert. denied, 306 Md. 118 (1986); see also 81 Opinions of the Attorney General 154 (1996) (waiver of fee depends on a number of relevant factors and cannot be based solely on the poverty of the requester or the cost to the agency).In deciding whether to waive a fee, an official custodian may find it helpful to look at case law interpreting the comparable FOIA provision, 5 U.S.C. § 552(a)(4)(A). In one useful case, Project on Military Procurement v. Dept. of Navy, 710 F. Supp. 362 (D.D.C. 1989), the federal court identified as material factors the potential that the requested disclosure would contribute to public understanding and the significance of that contribution. See also Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988) (requester of information under FOIA seeking fee waiver must not have commercial interest in disclosure of information sought and must show that disclosure of information would be likely to contribute significantly to public understanding of government operations or activities); National Treasury Employees Union v. Griffin, 811 F.2d 644 (D.C. Cir. 1987) (fee waiver requests under FOIA grounded on public interest theory must show connection between material sought and matter of genuine public concern and must also indicate that fee waiver or production will primarily benefit public); Crooker v. Bureau of Alcohol, Tobacco and Firearms, 882 F. Supp. 1158 (D. Mass. 1995) (agency justified in denying request for fee where disclosure was not likely to contribute significantly to public understanding of government operations); cf. Diamond v. FBI, 548 F. Supp. 1158 (S.D.N.Y. 1982) (overturning agency’s decision denying fee waiver when university professor sought materials for academic lectures and articles).

I should add that fee waivers are routinely used in both Maryland and Anne Arundel County government, often when the information has PR value to the responding agency or when the information is politically neutral and the agency wants to cultivate a good relationship with the requester.  I believe my request for a fee waiver deserves a response.  If it is the policy of the SBNC to reject all fee waivers, then it should explicitly state that that is its policy.

Work and time estimates.  You say: “I agree that it will likely take Ms. Davis approximately 15 hours to review them.”

That’s not either what Ms. Davis said or how I summarized the practical import of what she said.  What she said was: “The search and preparation of this request will exceed two hours and thus, you will be charged a fee for the time above two hours. GP § 4-206. As of now we estimate that additional time to exceed 15 hours at a rate of $41/hr.”

That’s the equivalent of asking me to sign a blank check—moreover, a blank check where a lot of games have in the past been played with the quality of the delivered goods.  Ms. Davis, in effect, is also estimating a minimum of 17 hours, not 15 hours work, because she says her minimum is 15 hours above the 2 hours of free time.

I suspect you are making this reading of the emails process far more difficult than it is for a Public Information Act expert who earns $41/hour and is presumed to know the relevant law without having to look it up after reading each email.  I have also been told by various SBNC commissioners over the years that the amount of email correspondence among SBNC commissioners has been minimal.  The one exception may be the current year, when the policy of encouraging lots of written correspondence from non-SBNC commissioners was implemented.  On the other hand, perhaps the commissioners have been lying to me in order to suggest that they weren’t violating the spirit of Maryland’s Open Meetings Act?

Please let me know the formula you used to estimate the 15 hour time.  As I explained in my email to Michelle Davis, it should take only a few seconds to count the total number of responsive emails for any given date range (I explained how to do that with a few mouse clicks), so I presume you are estimating the ability to process “x” e-mails/hour.

If you provide me with your average cost/email estimates, I would be happy to narrow down my request.  You have not disputed that it should take only a few seconds to count the number of responsive emails.  Please do so.  I would specifically ask that you provide me with two counts of emails: 1) All emails from January 1, 2010 until June 30, 2014, and 2) all emails from July 1, 2015 until you respond to me with the requested information.

I look forward to your prompt compliance with my Public Information Act request.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘Brantley, Sandra’
Sent: Wednesday, July 08, 2015 6:44 PM
To: ‘J.H. Snider’
Cc: ‘SBNC’; ‘Davis, Michelle’
Subject: PIA request

Dear Mr. Snider:

Mr. Green and Ms. Davis asked for my assistance with the PIA request that you made for nearly five years of emails. It is my understanding that you believe that the public records you seek may be produced by simply forwarding the emails to you. Even if this were the case, the custodian is still obligated to review each email before it may be sent to you.  The general rule in favor of disclosure may be overridden by exemptions set forth in the PIA itself or by other law, including another State statute, that requires specific information or records to remain confidential.

As Ms. Davis correctly informed you, some of the emails may contain letters of reference regarding a particular nominee. Under GP §  4-310, letters of reference cannot be disclosed. This exemption applies to all letters, solicited or unsolicited, that concern a person’s fitness for public office or employment. 68 Opinions of the Attorney General 335 (1983). In addition, under GP § 4-311, “personnel records” of an individual are protected. The personnel record exception is not limited to paid officials and employees; biographical information submitted by individuals seeking to serve on agency advisory committees is also protected. See Letters from Assistant Attorney General Kathryn M. Rowe to Senator Brian E. Frosh and Delegate Jennie M. Forehand (Oct. 6, 2000). Similarly, the names of those seeking appointment to an office may not be disclosed if the information is derived from their applications. Letter from Assistant Attorney General Kathryn M. Rowe to Senator Leo E. Green (May 13, 2002) (names of applicants for Prince George’s Board of Education not to be disclosed). (Letters attached.)

In addition, GP § 4-344 allows a custodian to deny inspection of “any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit.” To be an “interagency” or “intra-agency” letter or memorandum, the document must have been “created by government agencies or agents, or by outside consultants called upon by a government agency ‘to assist it in internal decisionmaking.’” Office of the Governor, 360 Md. at 552. Generally, the exception protects pre-decisional, as opposed to post-decisional, materials. Stromberg, 382 Md. at 165; City of Virginia Beach v. Department of Commerce, 995 F.2d 1247 (4th Cir. 1993); Bristol-Myers Co. v. FTC, 598 F.2d 18, 23 (D.C. Cir. 1978). For example, a State agency’s annual report on waste, fraud, and abuse submitted to the Governor is protected as a pre-decisional document, because it presents the Governor with recommendations for correcting these problems that the Governor may approve or disapprove; it does not reflect agency policy or an agency’s final opinion. Specifically as applied to the records of the School Board Nominating Commission, internal communications such as those between the Chair and staff or between the Chair and other Commissioners would strike me as deliberative if they are pre-decisional.

As the custodian of the emails you requested, Ms. Davis is obligated to review each email and determine whether it falls within a mandatory or discretionary exemption to disclosure. As she mentioned, given the large volume of emails, this will take some time. To confirm the reasonableness of the time estimate, I personally reviewed a portion of the emails and I agree that it will likely take Ms. Davis approximately 15 hours to review them. As you know, under GP § 4-206, a custodian may charge reasonable fees for the search and preparation of records for inspection and copying. Search fees are the costs to an agency for locating requested records. Usually, this involves the cost of an employee’s time spent in locating the requested records. Preparation fees are the costs to an agency to prepare a record for inspection or copying, including the time needed to assess whether any provision of law permits or requires material to be withheld. Search and preparation fees must be reasonably related to the actual cost to the governmental unit in processing the request. GP § 4-206(a); see also 71 Opinions of the Attorney General 318, 329 (1986) (“The goal . . . should be . . . neither to make a profit nor to bear a loss on the cost of providing information to the public.”). Fees may not be charged, however, for the first two hours of search and preparation time. GP § 4-206(c).

I understand that you have not agreed to pay a fee, but would like to see what kind of documents you will receive. Ms. Davis is preparing to send you some emails free of charge, although more than two hours have already been spent searching for the records and preparing them for inspection. You could reduce costs if you limited the scope of the date range or identified a particular topic, either of which would reduce the number of emails that Ms. Davis must inspect. You might also consider letting her know what kinds of emails in which you have no interest. For example, from my inspection of the emails, it looks like a separate record is created for each person who signed up to receive the SBNC’s announcements. Perhaps you do not want a copy of each of those emails.

Once you have received and reviewed the emails provided to you at no cost, please let Ms. Davis know whether you would like to receive the rest of the emails or whether you want to narrow the scope of your request.

Sincerely,

Sandy Brantley
Counsel to the General Assembly
Office of the Attorney General
410-946-5600
sbrantley@oag.state.md.us

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From: ‘J.H. Snider’
Sent: Thursday, July 02, 2015 4:49 PM
To: ‘Davis, Michelle’
Cc: ‘Joshua Greene’
Subject: RE: Public Information Act Request

Dear Ms. Davis:

The close of business tomorrow, Friday, July 3, 2015, marks the effective 30th day under the Public Information Act.  If you cannot get the requested information to me by then, I hope you will get it to me by the close of business on Monday, July 6, 2015.

I’m cc’ing SBNC Chair Joshua Greene who has the responsive public records.

Sincerely,

J.H. Snider, Editor
eLighthouse.info

P.S. Earlier this afternoon I left a voice mail message for you at your direct office number, 410.946.5215, reminding you of this Public Information Act deadline.


From: ‘J.H. Snider’
Sent: Wednesday, July 01, 2015 10:40 PM
To: ‘Davis, Michelle’
Subject: RE: Public Information Act Request

Dear Ms. Davis:

In your June 30, 2015 response to my June 5, 2015 Public Information Act request, you didn’t need to let me know that you had received it.  I very briefly discussed it with you at the SBNC meetings on June 16, 2015 and June 24, 2015.  Admittedly, on those dates, you refused to provide me with any information about your concerns or how you planned to respond.  But you certainly made it clear that you had received the Public Information Act request.

SBNC Chair Greene previously said that letters of recommendation, like public hearing testimonials, were public documents.  Has he now decided that that is not the case?  Can you point me to any SBNC document or public statement that suggests that written testimony, unlike verbal testimony, is to be treated as secret communication?  I don’t believe such a document exists.  As far as I recall, submitting official written testimony to the SBNC outside the public hearing process is also a fairly new process and first came into significant use during the first 2015 SBNC nominating cycle, which occurred from January to February 2015.  Even if the written testimony were a valid exemption (and, again, under the specific circumstances in this case, I don’t believe it is), it should hardly be a substantial exemption given its limited duration and the relatively few written testimonials candidates provide to the SBNC.

Please also let me know how you define “personnel documents.”  As far as I know, the SBNC has always had a zero budget and does not hire any individuals.  Even its members are appointed by external sources over which it has no statutory control.  In this particular context, how exactly are you using the personnel exemption to exempt SBNC public records?

As for costs, AACPS’s current favorite tactic to avoid complying with the clear intent of Maryland’s Public Information Act is to ask requesters to sign essentially a blank check for thousands of dollars for public documents that take only a few seconds to identify and electronically distribute.  It appears that you have decided to adopt this non-compliance tactic (the bare minimum you quote—with no upper limit—is $615).  One reason to request records using a simple and broad query–a practice that you implicitly disparage–is so requesters don’t have to pay $41/hour and rely on government officials with a blatant conflict of interest in complying with the spirit and letter of the law to exercise their judgment in identifying responsive records.  Even worse, if a requester agrees to the outlandish, open-ended, financial terms, there is no guarantee that he or she will receive the responsive records, as there is a whole other set of games that can be played if the requester agrees to this initial financial hurdle (e.g., see my commentary, AACPS Superintendent Arlotto’s Speech to the PR Association of AmericaeLighthouse.info, April 7, 2015).

Under the circumstances, I request that my Public Information Act request be implemented in several stages.  For the first stage, which I ask that you to fulfill within the original 30 days required by the Public Information Act, please use the first two hours granted to me under that Act.  Please conduct the search for the requested records from January 1, 2010 to the time you fulfill this request.  The search itself should take only a few seconds.  Then, starting with the most recent e-mail, work back in time until you reach the two hour limit.

For emails that remain, please report to me the aggregate number of emails.  Various SBNC commissioners have indicated to me that the volume of emails per SBNC election cycle is small.  (To count emails in Outlook, I select the first to last email in a date range by holding down the shift key while selecting the first and last email. I then forward them—using the forward command on the ribbon—to myself, which creates a single email with a collection of small icons, one for each responsive email.  You can then either count the icons yourself, or, if you hover over the “message” icon, you will see the number of “attachments”/emails.   This whole process, if you use the automatic attachments counter, should take no more than fifteen seconds.)

I also request that you consider waiving the fee, which you are both allowed and encouraged to do under Maryland law.  The SBNC nominates individuals to an elected school board with a $1 billion plus budget, 78,000+ students, and 10,000+ employees.  My request is for a non-commercial purpose, and I am the only reporter who has consistently and thoroughly covered SBNC proceedings.  With the exception of Chairman Greene, I have attended more SBNC meetings during the SBNC’s history than anyone else, including the current commission members.  I have also published—free of charge, including in major local daily newspapers—far more coverage of the SBNC than any other reporter both this year and in prior years.  Under the purported logic of the Public Information Act, these should be reasons to waive the fee and otherwise seek to accommodate my request in a prompt and helpful manner.

Sincerely,

J.H. Snider, Editor
eLighthouse.info


From: ‘Davis, Michelle’
Sent: Tuesday, June 30, 2015 5:22 PM
To: ‘J.H. Snider’
Subject: Public Information Act Request

I have received your email dated June 5, 2015 in which you request certain records under the Public Information Act, Annotated Code of Maryland, General Provisions (“GP”) Article § 4-101 et seq. In particular, you seek to inspect all emails in my custody and control pertaining to the Anne Arundel School Board Nominating Commission “from January 1, 2010 to the present, sent to or from Joshua Greene, concerning the Anne Arundel School Board Nomination Commission.”

Because your request spans cumulative emails dating as far back as 2010, the resulting volume of records is extremely large and includes many documents that must be reviewed for possible confidential or privileged information. For example, State law prohibits disclosure of letters of reference and personnel documents. GP §§ 4-310 and 4-311.  The search and preparation of this request will exceed two hours and thus, you will be charged a fee for the time above two hours. GP § 4-206. As of now we estimate that additional time to exceed 15 hours at a rate of $41/hr. Please let me know whether you agree to pay these costs. In the alternative, you may also narrow your request to reduce these administrative costs.

My office will be reviewing AASBNC emails and forwarding copies to you on an ongoing basis until your request is satisfied.

Sincerely,

______________
Michelle L. Davis
Senior Policy Analyst
Maryland Department of Legislative Services
Office of the Executive Director
90 State Circle, Rm. 222
Annapolis, Md 21401
410.946.5215


From: ‘J.H. Snider’
Sent: Friday, June 05, 2015 4:29 PM
To: ‘Josh Greene’
Subject: Public Information Act Request

Dear Mr. Greene:

Under the Maryland Public Information Act, State Government Article (SG) §§ 10-611, et seq., I request a copy of the following information concerning public records of the Anne Arundel School Board Nominating Commission: from January 1, 2010 until this Public Information Act request is fulfilled, all emails sent to or from you, Joshua Greene, concerning the Anne Arundel School Board Nomination Commission.  To search for the responsive emails, please use the email address you use for SBNC correspondence.  All modern email programs allow you to search on an email address, and the search should take no more than a few seconds.  Once you have selected the emails, please forward them to me at ‘J.H. Snider’.  Again, this should take no more than a few seconds by using the email forwarding option in your email program.

As you may know, every major newspaper in the country has recently run stories about public access to public officials’ email.  It is widely regarded as an issue of great public importance, and there is a consensus that it is unethical for a public official to delete email correspondence in response to a Public Information Act request.

If you deny any part of this request, please cite each specific Public Information Act exemption that justifies your denial of the information.

I look forward to your timely response within the 30 days specified by law.

Sincerely,

J.H. Snider, Editor
eLighthouse.info