Correspondence Summary

J.H. Snider sought from the Open Meetings Act Compliance Board legal guidance concerning when public reports must be made public before, during, and after public meetings when the reports are on the public meeting’s agenda. The immediate context was when the Open Meetings Act Compliance Board itself claimed the exemption regarding its “draft” annual report to be discussed and approved at its Sept. 14, 2020 annual meeting. The Compliance Board made token additions to its draft report at its Sept. 14 meeting–the primary agenda item for the meeting–and then unreasonably delayed making its report both public and meaningfully accessible.

This and worse barriers to both open government and meaningful public participation are common problems with Maryland public bodies. But it should be especially alarming when the Compliance Board models bad behavior for those it oversees, including denying and covering up its own bad behavior. This is partly because it loses moral authority to fulfill its compliance mission and thus becomes even more susceptible to regulatory capture.

After the Compliance Board failed to provide the requested information within the 30 days mandated by the Public Information Act, Snider filed a complaint with the Maryland Public Access Ombudsman. The Public Information Act’s 30-day deadline is itself irrelevant to the key public policy issue raised here because if the public must use the Public Information Act and wait 30 days to access public documents either up for discussion or approval at a public meeting, then a primary goal behind the Open Meetings Act, to foster meaningful and timely public participation, becomes a farce.

The staff support for the Ombudsman and Compliance Board overlap, which creates a double conflict of interest: the conflict of interest the Compliance Board has in being a referee in its own case, and the conflict of interest the Ombudsman has when its administrative officer, who does much of the Ombudsman Office’s day-to-day work, is simultaneously the Compliance Board’s administrative officer.

The correspondence, listed in reverse chronology, begins on Sept. 9, 2020 and ends on Jan. 29, 2021.

Correspondents

  • Janice Clark, Administrative Officer, Office of the Public Access Ombudsman, and Administrative Officer, Open Meetings Act Compliance Board
  • Lisa Kershner, Maryland Public Access Ombudsman, Office of the Public Access Ombudsman
  • Sara Klemm, Maryland Assistant Attorney General, Office of the Attorney General
  • Fritz Schantz, Director of Multimedia Services, Office of the Attorney General
  • J.H. Snider, Public Information Act requester

Abbreviations

  • PIA: Public Information Act
  • OMCB and OMACB: Open Meetings Act Compliance Board. Ms. Clark users OMCB and Ms. Kershner OMACB. Depending on whom I (J.H. Snider) am corresponding with, I use either OMCB or OMACB.

Correspondence

From: ‘J.H. Snider’
Sent: Friday, January 29, 2021 5:01 PM
To: ‘Klemm, Sara’ <sklemm@oag.state.md.us>
Cc: ‘Kershner, Lisa’ <lkershner@oag.state.md.us>
Subject: RE: Your request for PIA mediation with the Open Meetings Act Compliance Board

Dear Assistant Attorney General Klemm:

Thank you for your prompt and thoughtful legal opinion dated Jan. 29, 2021. My comments below focus not on the substance of your legal argument, just the factual context in which you make your argument:

  • I requested the OMACB annual report in writing on Sept. 15, 2020 and the claimed exemption for not providing the report on Sept. 16, 2020.  The draft report was approved on Sept. 14, 2020 with minor additions that should have taken only a few minutes to incorporate into the report.  All I did on Nov. 28, 2020 was submit a PIA request—something I prefer not to do when requesting what I consider to be routine, background, or timely information. For example, many local reporters with longstanding relationships with Maryland PIO officers have gotten lots of useful information without submitting a PIA request, which in any case would likely produce information long after it was useful. The culture in some PIO offices is only to require PIA requests from citizens/reporters who they don’t trust to write positive stories. Given how awful the PIA works for citizen journalists like myself, I should never have been forced to resort to the PIA to get the information I requested via the PIA request to OMACB on Nov. 28, 2020.
  • Jan. 7, 2021 was more than 30 days after the deadline mandated by the PIA, which would have been approximately Dec. 28, 2020. Jan. 7 was also approximately 120 days after I initially requested the report in writing. I alerted the OMACB that it had violated the PIA on Jan. 5, 2021.
  • I requested three items on Nov. 28, of which the report itself was only one of them and of the least interest to me, partly because I already heard the report presented at OMACB’s Sept. 14 meeting. I have made it abundantly clear in my correspondence that what primarily interests me is the inconsistent application and apparent misuse of the draft report exemption, which is part of OMACB’s bailiwick; that is, the second and third requests in my Nov. 28 PIA request.
  • Use of the PIA is extremely poorly suited to access “draft” documents shortly before, during, or shortly after public meetings because the 30-day rule means they will be provided after the report has lost news value.  Public bodies are happy to provide the documents either under or without use of the PIA after the relevant news cycle has ended, which is my point.  By focusing on the letter rather than the intent of the PIA, you are actually making a mockery of the PIA, which in its specific rules doesn’t appear to address the problem I have raised.  I’ve begged the OMACB every way I know how—including indirectly via the Public Access Ombudsman—to provide me with the law, including advisory opinions, concerning public access to “draft” reports prior, during, and after public meetings.  For whatever reason, they have not only refused to answer my question but refused to acknowledge that I have even asked the question in a way they have a duty to acknowledge, let alone answer. Thank you for providing a very helpful citation in your legal opinion; I wish I had gotten that months ago. But it still doesn’t address the question, given the imperatives of a news cycle, how long a public body has to release a report after it approves it at a public meeting. Nor does it address the incentives a public body has to abuse the draft report exemption. Note that I have requested final reports before a public meeting and still not gotten them, suggesting that your “PIA might require disclosure, upon request” hedge is either incorrect or not effectively enforced.
  • In an ideal world I might have submitted a complaint to the OMACB rather than the Public Access Ombudsman.  But the OMACB would have even more of a blatant conflict of interest in responding to it than the Public Access Ombudsman.  The general theory behind having the OMACB or Public Access Ombdudsman adjudicate public information disputes is that they can be a neutral arbiter.  That universally accepted good governance principle completely broke down regarding the problem I raised.
  • For the record, the Public Access Ombudsman lacks the power to “compel” the release of any information from an agency—or so I’ve been told—so that is a straw man legal argument.
  • • Regardless of the merits of your legal opinion, the most appropriate response might have been to recuse yourself from issuing one because of the blatant conflict of interest involved. Janice Clark is not someone with whom the Ombudsman has an arms-length relationship. Nevertheless, I agree that your conflict of interest is less than the OMACB’s, which, as noted above, is why I approached the Ombudsman.

Having said the above, I agree that the Public Access Ombudsman is not the ideal entity to provide information concerning the problem I raised. But other than hiring an attorney, which I cannot imagine any average citizen would do in such a situation, there is no other executive branch entity in Maryland—and certainly not the OMACB, despite its official job function–both able and willing to help me.  Thus, it would appear that approaching the General Assembly is indeed the only recourse left to me.

Again, I appreciate your thoughtful response, especially its brief discussion of exemptions. For your information, the apparent links in your letter did not work.

Sincerely,

J.H. Snider

From: Klemm, Sara <sklemm@oag.state.md.us>
Sent: Friday, January 29, 2021 2:36 PM
To: ‘J.H. Snider’
Cc: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: Your request for PIA mediation with the Open Meetings Act Compliance Board

Dear Mr. Snider:

Attached please find a letter regarding your recent request for PIA mediation with the Open Meetings Act Compliance Board. 

Sincerely,

Sara Klemm


Sara Klemm
Assistant Attorney General
Office of the Attorney General
Public Access Unit
200 Saint Paul Place
Baltimore, Maryland 21202
p: 410-576-7034 | f: 410-576-7004
sklemm@oag.state.md.us
www.marylandattorneygeneral.gov

From: ‘J.H. Snider’
Sent: Thursday, January 28, 2021 1:00 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: Your PIA Request to AACPS

Dear Ms. Kershner:

An agency doesn’t have to make a formal exemption claim in writing in response to a Public Information Act request to claim an exemption from disclosing certain public records; the act of non-disclosure can itself be an exemption claim.

I did not start by making a PIA request to Ms. Clark partly because I knew she was your most important staff assistant and a far more important relationship to you than I am. If my relationship to you was important, it seemed politically risky and not worth the hassle to formalize my request. But I was concerned enough about Maryland public bodies inconsistently using the draft report exemption, that I thought it was worth seeking clarification from OMACB on where it draws the line on this potential abuse.

This business of having to submit a formal PIA request for even the most trivial of information requests is, in my judgment, not only inconsistent with the spirit of Maryland’s right-to-know laws but a public policy disaster because of its gross inefficiency and the needless harm it causes to personal relationships.  The people of Maryland should be able to find out from Maryland’s Open Meetings Act Compliance Board the laws under which public reports, including OMACB’s own reports, will be made available to them in a timely way without having to endure the type of obfuscation, politics, and denial that OMACB has exhibited in this case.

I look forward to receiving the legal opinion from your legal counsel.  When do you expect to be able to send it to me?

Sincerely,

J.H. (“Jim”) Snider

From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Thursday, January 28, 2021 11:45 AM
To: ‘J.H. Snider’
Subject: Re: Your PIA Request to AACPS

Jim,

I have already responded to the best of my ability to your request for assistance regarding the November 25th record request you made to the Open Meetings Act Compliance Board, a request that was answered by the Board’s production of the requested record without any redaction on January 7th, shortly before you submitted your complaint to my office.  

I also understand that production of the document on January 7th was accompanied by an apology for not getting you the document sooner.  

While I do sometimes make inquiries of agencies to obtain information as opposed to records, this is always done for the purpose of resolving a live PIA dispute within the jurisdiction of the Ombudsman program or in order to prevent a forseeable repetition of that dispute.  None of these circumstances are present here. The Open Meetings Act Compliance Board cannot identify any PIA exemption applicable to the record it produced to you because it does not now and never has asserted any exemption with respect to it.    Moreover, the unintended delay you experienced in obtaining the record – for which Board staff apologized – was not due to the assertion of any exemption.  In these circumstances, there is no dispute under the PIA within the jurisdiction of my program that I can mediate.  Because I understand you are dissatisfied with this assessment, I have asked the Ombudsman program’s legal counsel to respond more formally to your most recent inquiry. 


From: ‘J.H. Snider’
Sent: Wednesday, January 27, 2021 2:22 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: Your PIA Request to AACPS

Thank you for this update concerning the AACPS open case. If I don’t hear back from you by early next week, I may request another status update.

I also hope you’ll respond to my last email concerning the OMACB open case. Needless to repeat, I’ve disagreed with OMACB’s preferred framing of the issues.

From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Wednesday, January 27, 2021 2:02 PM
To: ‘J.H. Snider’
Subject: Your PIA Request to AACPS

Jim,

This is a quick note to let you know we have asked Bob Mosier for a status update concerning your request to AACPS.  He has promised to look into this and get back to us.

We will give you an update as soon as we have further information.

Lisa

From: ‘J.H. Snider’
Sent: Tuesday, January 26, 2021 5:46 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: two open cases

Dear Ms. Kershner:

Nowhere in my correspondence with you have I disputed that OMACB didn’t belatedly get around to providing me with its annual meeting report.

My complaints submitted to you in this matter (e.g., see my January 25, 2021 email below) have addressed the Maryland PIA exemptions OMACB and other Maryland public bodies claim when they belatedly provide such reports to the public. 

I have relatively little interest in OMACB’s last or next annual report. But I have a lot of interest in how it interprets the law regarding when it and other Maryland public bodies must make their public reports accessible to the public before, during, and after a public meeting where a written report is the topic of discussion and action.

I initially sought the OMACB’s report and its claimed legal exemption for its delay in providing its report without recourse to Maryland’s PIA, which I consider an awful mechanism to get answers to simple information requests. It was only after that much preferred less formal approach failed that I resorted to the PIA and then your office to get my questions answered.

I consider it unspeakably sad that even now the OMACB, which is responsible for issuing formal opinions about such questions, refuses to answer my presumably simple and mundane question concerning when public reports must be made available to the public in the context of a public meeting when a report is on the agenda.

Again and again when I have dealt with your office, we have operated on the assumption that your office has no real power to secure documents an agency doesn’t want to provide, regardless of what the law says.  So instead we have often focused merely on requesting clear written statements as to the exemption the agency is claiming to refuse my PIA request.  It’s a second-best solution, but I consider it helpful information and you have in the past agreed to ask for it.  And, in the case of, say, my recent MSDE PIA request, when MSDE couldn’t justify its claimed written exemption, this indirect strategy helped me get some of the information I requested.  Here I am also asking for the exemption OMACB claimed in acting with what I believe was an unreasonable delay after its annual report should have been made publicly available.

The law recognizes the principle that information delayed is information denied.  That’s one reason the PIA has ten- and thirty-day deadlines for providing information.  It recognizes that agencies have strong incentives to find excuses to delay providing information as a way to effectively deny providing it.  If an agency provides a public document only after an unreasonable delay, then the delay should be viewed as a denial that requires on both normative and legal grounds an explicit, claimed exemption. Such a principle should also apply to OMACB.

Please confirm that OMACB will not provide me in writing with its view of the law regarding when Maryland public bodies, including itself, must make public reports available in the context of a public meeting; specifically, OMACB’s annual report at its September 14, 2020 annual meeting.

Also, please let me know how it went after you reached out to Bob Mosier (see January 25 email below). Were you successful in communicating with him yesterday as you had hoped?

Sincerely,

J.H. (“Jim”) Snider

From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Tuesday, January 26, 2021 3:21 PM
To: ‘J.H. Snider’
Subject: Re: two open cases

Jim,

I’ve reviewed your below email including the red highlighted text and for the reasons mentioned, don’t believe there is any live records dispute I can mediate.

This is because you were provided the record you requested; no responsive record has been withheld from you; and thus, there is no exemption that is claimed or that can be identified to you.  

To the extent there was “delay” in disclosing the draft report produced to you, neither I nor the OMACB can turn the clock back and arrange retrospectively for you to have received it earlier.  Your point about delay has been noted and hopefully, you will be able to obtain the OMACB’s draft annual report in the future more quickly. 

If you should encounter a problem in the future in obtaining documents that you believe are being withheld improperly, I will be happy to try to assist based on the particulars of any such record request and/or denial, as applicable.

Lisa Kershner


From: ‘J.H. Snider’
Sent: Monday, January 25, 2021 5:35 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: two open cases

Dear Ms. Kershner:

Thank you for your willingness to follow up on the AACPS open case.

OMCB has persistently misread my PIA request and subsequent complaint to your office. 

As I’ve described in multiple emails to OMCB, the part of my November 25, 2020 PIA request that OMCB has not complied with concerns items 2) and 3). The fact that OMCB has long since provided me the report I requested has nothing to do with my requests 2) and 3). I’ve marked the passages relating to 2) and 3) in red.

Under the Maryland Public Information Act, State Government Article (SG) §§ 10-611, et seq., I request: 1) OMCB’s annual report adopted at its last annual meeting, 2) the precise, written exemption you claim in withholding a draft annual report immediately after it is approved by a public body (e.g., it is now over two months since it was officially adopted and it still has been neither emailed to me nor posted on the Attorney General’s web page for such documents), and 3) the precise, written exemption you claim in withholding a draft annual report immediately after it is placed on a public body’s meeting agenda for formal approval. Please email me the legal text regarding 2) and 3) regardless of any claim you might make about the status of OMCB’s annual report, as I have observed different practices among Maryland public bodies regarding their claims about publicly disclosing so-called “draft” reports and other documents that have been noticed and are on the agenda to be approved at their next legally designated public meeting.

OMCB refused to make its draft annual report available to me a) before, b) during, or c) immediately after its annual meeting last September, when there was no question the report was not only final but approved.  That led me to recall the many other experiences I’ve had with Maryland public bodies where important and potentially controversial public documents are sometimes and seemingly arbitrarily not made available to the public under similar circumstances. Other than my OMCB experience, two other recent ones come to mind:

  1. After AACPS negotiates its teachers union contract, it must be approved by both the union’s members and the school board. The latest contract was approved in Nov. 2020. Year after year I’ve requested a copy of the negotiated settlement after the teachers’ union and BOE reps have approved the deal, the union members (some six thousand) have approved the deal, and it is already on the official BOE agenda for formal approval by the BOE.  When I’ve asked for a copy of the negotiated settlement after it’s on the BOE’s printed public agenda, I’ve invariably been told it’s not available to the public for one reason or another. It has also not been made available to the public at the meeting when the BOE formally approves it or even for days after that meeting. Given that there may be no more important policy and budget document that the BOE approves during a given year, I find this secrecy to be a concern, especially because the entire negotiating process leading up to this supposedly public part of the process is also secret.  I also don’t understand why many thousands of  teachers are able to see the public but not members of the public. Indeed, if the local reporter wants to see the contract, she must beg to see it from a teacher who is willing to act as a leaker.
  2. Last August the BOE was set to approve its long-awaited external Performance Audit for the Anne Arundel County Public Schools. It was a multi-year effort by a team of consultants that cost the district something like a million dollars. For years when BOE members heard complaints about AACPS performance, they would tell their constituents that this report should address their concerns. After the report was placed on the BOE’s agenda for BOE approval, I asked for a copy and was refused. At the several hour meeting where the report was presented to the BOE and for hours afterward (e.g., after the news cycle had already expired) I was also told I couldn’t see it, even after I bitterly complained.  The argument, as with the OMCB report, was that the BOE/superintendent should be entitled to make edits before it was released to the public.  Sure enough, it was accepted as is and a glitzy pre-printed report was indeed made available to the public after the relevant news cycle was already over.

Other documents on the BOE’s agenda, such as some proposed budgets, are made available to the public before public meetings, so I’m unclear where the dividing line is when the subject of the report doesn’t include personnel or other obviously confidential matters.  I should also add that when I served on a school board in Burlington, VT, the local reporter would get all documents on the public agenda at the same time as BOE members, with the exception of a separate, clearly distinguished packet for items to be discussed in executive session.

So, please, I’ll ask for the nth time: I want to understand what the precise law is regarding the type of secrecy claims made by OMCB and AACPS regarding the timing of public access to obviously public documents. Right now I’m inclined to think that the claimed law is that as long as a public body claims a report is still a “draft,” regardless of whether any edits are likely to be made to it, a public body can withhold public access to it a) after it posts its public agenda, including the report on the agenda for approval, b) at the meeting after the report is approved, and c) for an indeterminate time after the meeting that the report is approved. But I’m genuinely confused by Maryland’s law and would like a clear answer.

My impression right now is that the real dividing line is not a legal one. One type of explanation is just laziness and sloppiness; sometimes it’s simply inconvenient to meet public meeting related deadlines that no one has any genuine interest in enforcing anyway.  Another type is political: newsworthy reports that might contain controversial information are likely to be withheld from the public based on one excuse or another.  The claimed “draft” exemption—assuming it exists as claimed—may then function as a loophole in the law to hide the real laziness or political reasons.

If the OMCB wants to reply: “we cannot provide the requested information because we have no idea what the actual law is” or “we cannot provide the requested information because the law is unclear and there are inconsistent rulings,” that would be fine with me. I just want an answer to my PIA request. In various public settings, politicians may routinely answer questions they would have preferred they had been asked, not the question actually asked. While Maryland PIO officers may routinely engage in the same type of game when they want to pretend to have responded to a PIA request when they haven’t done so and want both legal and political cover, I don’t think the OMCB should be playing that type of game.

I don’t expect the OMCB to ever admit to either violating or abusing the law, any more than a Maryland PIO would. But when I attend a so-called public meeting such as the OMCB’s annual, legally required public meeting, I expect to be able to know the contents of the documents that are being discussed.  If a member of the public isn’t allowed to see the contents of the documents its representatives are discussing and voting on, then I consider the public participation claims of Maryland’s Open Meetings Act, including the supposed opportunities for public participation on the public agenda, to be fundamentally misleading and even fraudulent.  Some years ago I published a related article, Deterring Fake Public Participation, in The International Journal of Public Participation.

Sincerely,

J.H. (“Jim”) Snider

From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Monday, January 25, 2021 11:28 AM
To: ‘J.H. Snider’
Subject: Re: two open cases

Jim,

I spoke with counsel for the OMACB who advised that the draft minutes you requested were produced to you via email on Jan. 7th (approximately 1 hour before you submitted your complaint to me); in any event, given the production of the draft minutes you requested, it’s clear that no exemption is asserted by the Board in response to your PIA request.

With respect to your request to AACPS, we will reach out to AACPS today and attempt to find out the status of your matter.  I’ll give you an update as soon as I’m able.

Lisa

From: ‘J.H. Snider’
Sent: Monday, January 25, 2021 10:16 AM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: two open cases

Dear Ms. Kirshner:

Please let me know where I stand in your “queue” regarding two separate and open cases concerning: 1) Janet Clark, OMCB, and 2) Bob Mosier, AACPS.

Sincerely,

J.H. (“Jim”) Snider

From: Clark, Janice <jclark@oag.state.md.us>
Sent: Friday, January 15, 2021 5:02 PM
To: ‘J.H. Snider’; Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: Public Information Act Request

Dear Mr. Snider,

The Office of the Public Access Ombudsman (Ombudsman) has received your request for assistance with the Open Meetings Compliance Board regarding your Maryland Public Information Act (“PIA”) request. We have received the information you sent and do not need any additional information at this time. This matter was been placed in the Ombudsman’s queue on January 7th. The Ombudsman’s Office makes every effort to resolve matters in the order in which they are received. The Ombudsman will contact you regarding this matter as soon as she is able.

INFORMATION ABOUT THE OMBUDSMAN’S OPERATIONS DURING COVID-19 STATE OF EMERGENCY
The Ombudsman’s office is teleworking to the fullest extent possible as part of the statewide effort to contain or mitigate the spread of the covid-19 virus. Given the nature of our work, progress is contingent not only on our own remote work connectivity, but also, on the level of access and remote capacity that is in place in the many other government offices with which we are required to deal regarding PIA issues. Thus, we appreciate your patience as we attempt to work through all of the necessary issues.

OMBUDSMAN ROLE
For your information, the Ombudsman does not have any enforcement authority under the Public Information Act (“PIA”) and cannot compel any action by any party. Specifically, the Ombudsman cannot compel an agency to provide its public records, nor can she require a particular outcome or issue penalties for noncompliance with the Act. Rather, the office is entirely dependent on the good faith willingness of both parties to try to reach a mutually acceptable outcome by agreement. Additionally, the process is completely confidential. See COMAR 14.37.03.01 (attached).

In our experience, effective mediation requires the parties to abide by certain ground rules or standards of conduct that facilitate candid and respectful communication throughout the process including:

  • Approaching the process with an open mind and willingness to consider the other party’s point of view;
  • Maintaining the confidentiality of all communications in the process;
  • Respecting the Ombudsman’s role as a neutral facilitator;
  • Understanding that the process is entirely voluntary and can be terminated by either party, or the Ombudsman, at any time.

Please also be aware of the ground rules that apply to the Ombudsman and the parties to the mediation. These are set forth in the attached Ground Rules Applicable to Mediation.

ADDITIONAL RESOURCES
For more information on the Ombudsman’s process, visit our website at http://piaombuds.maryland.gov.

Please feel free to contact me or the Ombudsman at pia.ombuds@oag.state.md.us or jclark@oag.state.md.us if you have any questions.

Sincerely,

Janice Clark
Administrative Officer
Office of the Public Access Ombudsman

From: ‘J.H. Snider’
Sent: Friday, January 15, 2021 4:38 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Cc: OpenGov <opengov@oag.state.md.us>; Clark, Janice <jclark@oag.state.md.us>
Subject: RE: Public Information Act Request

I have yet to receive an acknowledgment letter from Janice Clark. By the end of this weekend, it will be more than ten days.

Ms. Clark, please let me know when you intend to email me that letter.

From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Thursday, January 7, 2021 1:49 PM
To: ‘J.H. Snider’
Cc: OpenGov <opengov@oag.state.md.us>; Clark, Janice <jclark@oag.state.md.us>
Subject: Re: Public Information Act Request

Jim,

I just received your below email, which I am interpreting as a request for mediation through my office with the Open Meetings Act Compliance Board (OMCB ).  In light of this request, I have asked Ms. Clark to open a file on this matter.   Per our usual procedure, you will be receiving an acknowledgment letter and further information from Ms. Clark shortly and your matter will then be in our queue.

Be advised there is no relationship between me or my office and the Open Meetings Act Compliance Board.    I will be reaching out to the Board through its legal counsel for an appropriate contact with whom I can discuss any substantive issues involved in the mediation.  I will also reach out to you to discuss your matter according to the same process I have followed in working on the many other matters you have submitted to my office over the past several years.

If I have misunderstood your email as being a request for mediation, please let me know.

The mediation process depends upon a mutual willingness to engage in good faith discussion and exploration of options by the parties.  I expect both parties to engage that process in good faith and I reserve the right to terminate the mediation at any time if I conclude that further effort or discussion through my office is unlikely to be productive.

Thank you for getting in touch regarding your PIA matter and I look forward to working with you and the OMCB to resolve this.

Sincerely,

Lisa

Lisa Kershner
Public Access Ombudsman


From: ‘J.H. Snider’
Sent: Thursday, January 7, 2021 12:44 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Cc: OpenGov <opengov@oag.state.md.us>; Clark, Janice <jclark@oag.state.md.us>
Subject: RE: Public Information Act Request

Dear Ms. Kershner:

I am filing a complaint against the Open Meetings Compliance Board for repeatedly and willfully violating Maryland’s Public Information Act.  The correspondence leading to this complaint is copied below.

While it has been common for Maryland public information officers to play all sorts of games while effectively denying a Public Information Act request to citizen journalists, it is surprising when such behavior comes from an entity supposedly designed to enforce those laws.  To be sure, the Open Meetings Compliance Board routinely winks at such behavior when it is brought to its attention. To be sure, too, functioning as a paper tiger is exactly what the General Assembly and MACo designed OMCB to do when tasked with holding powerful public officials accountable.  But it is still shocking when OMCB copies the type of evasive tactics it was nominally designed to condemn and sanction.

I recognize that this complaint will put you in a difficult position. Ms. Clark provides you essential staff support and OMCB constitutes a far more important relationship to you than I ever could. And I would no more expect you or Ms. Clark to apologize for OMCB’s self-serving and inadequate response than I would expect President Trump to apologize for mobilizing the Proud Boys.  Still, I do expect someone to reply to the 2) and 3) items in my actual November 25, 2020 Public Information Act request, if only to find some plausible excuse for denying them. Belatedly providing me with the OMCB’s draft annual report certainly does not comply with any reasonable reading of my 2) and 3) requests. 

Sincerely,

J.H. Snider

From: OpenGov <opengov@oag.state.md.us>
Sent: Thursday, January 7, 2021 11:37 AM
To: ‘J.H. Snider’
Subject: RE: Public Information Act Request

Mr. Snider,

Attached please find the draft of the Open Meetings Compliance Board’s Annual Report that it discussed, modified, and adopted at its Annual Meeting.

With this response, I believe the Board has fulfilled your request for,

“2) the precise, written exemption you claim in withholding a draft annual report immediately after it is approved by a public body (e.g., it is now over two months since it was officially adopted and it still has been neither emailed to me nor posted on the Attorney General’s web page for such documents), and

3) the precise, written exemption you claim in withholding a draft annual report immediately after it is placed on a public body’s meeting agenda for formal approval. Please email me the legal text regarding 2) and 3) regardless of any claim you might make about the status of OMCB’s annual report, as I have observed different practices among Maryland public bodies regarding their claims about publicly disclosing so-called “draft” reports and other documents that have been noticed and are on the agenda to be approved at their next legally designated public meeting.”

Please let me know if you have further questions. I apologize for my confusion in thinking that the final, adopted draft, which was produced to you in November, was the document you were interested in. Should you disagree with this finding, you have remedial options available. First, you may seek judicial review of this decision in accordance with GP Section 4-362. Second, you may seek assistance from the Public Access Ombudsperson under GP Section 4-1B-01 et seq.

Sincerely,

Janice Clark
Administrator
Open Meetings Compliance Board

From: ‘J.H. Snider’
Sent: Tuesday, January 05, 2021 2:16 PM
To: Clark, Janice <jclark@oag.state.md.us>
Subject: RE: Public Information Act Request

Please read my November 25 Public Information Act request, including items 2) and 3), and your response to it, including a promise to provide 2) and 3) within 30 days.

From: Clark, Janice <jclark@oag.state.md.us>
Sent: Tuesday, January 5, 2021 2:10 PM
To: net@jhsnider.net
Subject: RE: Public Information Act Request

Mr. Snider, I am confused. I thought you received links to the documents on Nov. 30. See below. Is there something else you were supposed to receive?

From: Schantz, Fritz <fschantz@oag.state.md.us>
Sent: Monday, November 30, 2020 12:39 PM
To: ‘J.H. Snider’
Cc: Clark, Janice <jclark@oag.state.md.us>
Subject: FW: Public Information Act Request

The file has been located here https://www.marylandattorneygeneral.gov/OpenGov%20Documents/Openmeetings/28thAnnualReport_FY2020.pdf since Sept. 28,2020

It was posted on this exact page https://www.marylandattorneygeneral.gov/Pages/OpenGov/Openmeetings/default.aspx on Sept. 28, 2020.

Janice Clark
Administrative Officer

From: ‘J.H. Snider’
Sent: Tuesday, January 5, 2021 2:06 PM
To: Clark, Janice
Subject: RE: Public Information Act Request

Dear Ms. Clark:

In your email dated November 25, 2020 you said that you intended to comply with Maryland’s Public Information Act by emailing me within the required 30 days the information I requested in my November 25, 2020 Public Information Act request. It is now more than 40 days since that request. Please email me the requested information.

Sincerely,

J.H. Snider

From: Schantz, Fritz <fschantz@oag.state.md.us>
Sent: Monday, November 30, 2020 1:08 PM
To: ‘J.H. Snider’

Cc: Clark, Janice <jclark@oag.state.md.us>
Subject: RE: Public Information Act Request

Thank you for letting me know that I forgot to update that link. I will update it directly.

From: ‘J.H. Snider’
Sent: Monday, November 30, 2020 1:04 PM
To: ‘Schantz, Fritz’ <fschantz@oag.state.md.us>
Cc: ‘Clark, Janice’ <jclark@oag.state.md.us>
Subject: RE: Public Information Act Request

Very interesting, Mr. Schantz. The page I have gone to for such information is the AG’s Maryland Open Meetings Compliance Board web page, which claims to have your most recent annual report. I copied that page on November 25 via the Internet Archive, and the annual report it points to as the “most recent report” is for 2019, not 2020. The annual report is the featured/topmost link on the web page, the top of which I’m copying below:

Sincerely,

J.H. Snider

From: Schantz, Fritz <fschantz@oag.state.md.us>
Sent: Monday, November 30, 2020 12:39 PM
To: ‘J.H. Snider’
Cc: Clark, Janice <jclark@oag.state.md.us>
Subject: FW: Public Information Act Request

The file has been located here https://www.marylandattorneygeneral.gov/OpenGov%20Documents/Openmeetings/28thAnnualReport_FY2020.pdf since Sept. 28,2020

It was posted on this exact page https://www.marylandattorneygeneral.gov/Pages/OpenGov/Openmeetings/default.aspx on Sept. 28, 2020.

From: ‘J.H. Snider’
Sent: Monday, November 30, 2020 12:29 PM
To: Schantz, Fritz <fschantz@oag.state.md.us>
Cc: Clark, Janice <jclark@oag.state.md.us>
Subject: RE: Public Information Act Request

Dear Mr. Schantz:

Please tell me the exact web page URL where the report was publicly posted on September 28, 2020. And if it wasn’t posted on that date, please tell me the exact date when it was posted.

For your information, Ms. Clark had already emailed me a copy of the report as an attachment.

Sincerely,

J.H. Snider

From: Schantz, Fritz <fschantz@oag.state.md.us>
Sent: Monday, November 30, 2020 7:50 AM
To: ‘J.H. Snider’
Cc: Clark, Janice <jclark@oag.state.md.us>
Subject: FW: Public Information Act Request

Mr. Snider,

I have attached the report in question in case you don not have it yet. As for the sign in issue, I cannot replicate that on Chrome, Firefox, or Internet Explorer on my PC or my Iphone. Can you please tell me how you are attempting to access the report? https://www.marylandattorneygeneral.gov/OpenGov%20Documents/Openmeetings/28thAnnualReport_FY2020.pdf is fully open to the public on our webserver and has been since Sept. 28, 2020 at 10:21 am.


Fritz Schantz
Director of Multimedia Services
Office of the Attorney General

200 Saint Paul Place
Baltimore, Maryland 21202
p: 410-576-6580
fschantz@oag.state.md.us
www.marylandattorneygeneral.gov

From: OpenGov <opengov@oag.state.md.us>
Sent: Wednesday, November 25, 2020 2:46 PM
To: Webmaster <Webmaster@oag.state.md.us>
Subject: FW: Public Information Act Request

Fritz,

Any reason why people can’t access the annual report of the OMCB on its webpage. See below.

From: ‘J.H. Snider’
Sent: Wednesday, November 25, 2020 2:13 PM
To: Clark, Janice <jclark@oag.state.md.us>
Cc: OpenGov <opengov@oag.state.md.us>
Subject: RE: Public Information Act Request

Dear Ms. Clark:

Hmmm. You claim that the report is available online to the public. But when I look at the web page where a reasonable person would expect it to be posted it is not there. And when I click on the folder where the file is located I am told I must enter a user name and password to access the file:

There is a distinction between “public” and “meaningfully public.” I wouldn’t say that this type of disclosure qualifies as meaningfully public in the sense implied by your response below, which is that the annual report has been “posted” since September 28, 2020. Your reply reminds me of the opening scene from the Hitchhiker’s Guide to the Galaxy, which I presume that someone in your position is familiar with.

But I want to thank you for acknowledging that you didn’t keep your promise in sending me the annual report. My guess is that not one in ten public information officers in Maryland would have the same decency to acknowledge such a mistake even it was staring them in the eyes and incontrovertible.

I look forward to your complying with my Public Information Act request for items 2) and 3).

Sincerely,

J.H. Snider

From: OpenGov <opengov@oag.state.md.us>
Sent: Wednesday, November 25, 2020 1:47 PM
To: ‘J.H. Snider’
Subject: RE: Public Information Act Request

Dear Mr. Snider:

This acknowledges your Public Information Act request as stated below.

In partial response to your request, on September 28, 2020 we posted the Board’s Annual Report. It is available here

https://www.marylandattorneygeneral.gov/OpenGov%20Documents/Openmeetings/28thAnnualReport_FY2020.pdf. I have also attached it for your convenience. I’m sorry that you had difficulty finding it on the website and that I lost track of my promise to send it to you as soon as it was in final form.

We do not expect our response to the rest of your request to exceed the two hours that the State of Maryland provides to requesters at no cost. We will provide a response as promptly as our workload permits, and, in any event, within 30 days.

Please let me know if you have any questions.

Janice Clark
Administrative Officer

From: ‘J.H. Snider’
Sent: Wednesday, November 25, 2020 11:33 AM
To: Clark, Janice <jclark@oag.state.md.us>
Subject: Public Information Act Request

Dear Ms. Clark:

I’m following up on my email to you from September 21, 2020 and your offer to email me a copy of OMCB’s annual report within a week of that date. More than two months have expired since then. Please note that the substance of the draft annual report was verbally summarized at OMCB’s September 14 annual meeting (from at 8:40 to 27:00) and then adopted by the Board with some minor approved modifications (from 26:58 to 27:15). Given the widespread and endemic violations of both the spirit and letter of Maryland’s Open Meetings Act by Maryland public bodies responding to Covid-19, the delay in making OMCB’s report publicly available is especially disturbing.

Under the Maryland Public Information Act, State Government Article (SG) §§ 10-611, et seq., I request: 1) OMCB’s annual report adopted at its last annual meeting, 2) the precise, written exemption you claim in withholding a draft annual report immediately after it is approved by a public body (e.g., it is now over two months since it was officially adopted and it still has been neither emailed to me nor posted on the Attorney General’s web page for such documents), and 3) the precise, written exemption you claim in withholding a draft annual report immediately after it is placed on a public body’s meeting agenda for formal approval. Please email me the legal text regarding 2) and 3) regardless of any claim you might make about the status of OMCB’s annual report, as I have observed different practices among Maryland public bodies regarding their claims about publicly disclosing so-called “draft” reports and other documents that have been noticed and are on the agenda to be approved at their next legally designated public meeting.

Please email me the requested documents.

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

If you claim that it will take more than two hours to fulfill my Public Information Act request, please break down the time to fulfill it for each of my separate 1), 2), and 3) sub-requests that constitute this Public Information Act request.

Your prompt and good faith fulfillment of this Public Information Act request would be appreciated. I hope that the OMCB in its approach to dealing with this Public Information Act request will decide to comply with both the spirit and letter of Maryland’s right-to-know laws and in doing so serve as a model for other Maryland public bodies to do so as well.

Sincerely,

J.H. Snider

From: ‘J.H. Snider’
Sent: Monday, September 21, 2020 11:17 PM
To: OpenGov <opengov@oag.state.md.us>
Subject: RE: Recording of yesterday’s OMCB Annual Meeting

Hi Janice—

Thank you for this information. I look forward to receiving the report as well as the 2020 minutes.

Please email me the URL address where the link to the 2019 minutes you sent me—as well as the minutes from previous years—have been made publicly available on a Maryland government website.

Sincerely,

J.H. Snider

From: OpenGov <opengov@oag.state.md.us>
Sent: Monday, September 21, 2020 2:31 PM
To: ‘J.H. Snider’
Subject: Re: Recording of yesterday’s OMCB Annual Meeting

Mr. Snider,

The OMCB is not denying your request for records. Staff to the Board are incorporating the Board’s comments to the draft report, per the instructions given at the meeting. We expect that the final version of the Annual Report will be available by the end of the week. I will send a copy to you then.

Regarding your request for the minutes of the 2019 Annual Meeting of the OMCB, they can be found at https://www.marylandattorneygeneral.gov/OpenGov%20Documents/Openmeetings/min082219.pdf.

Finally, regarding your request for the minutes of the 2020 Annual Meeting, they have not been prepared yet. We are you not denying your request for this document. We expect the written minutes to be available by the end of the month and will send them to you then. As you know, the live-stream video, which is also serving as a record of the meeting, has been posted at https://www.marylandattorneygeneral.gov/Pages/OpenGov/OpenMeetings/default.aspx#meetings.

Thank you for your interest in the Annual Meeting of the OMCB

Janice Clark
Administrative Officer

From: ‘J.H. Snider’
Sent: Wednesday, September 16, 2020 1:28 PM
To: Clark, Janice <jclark@oag.state.md.us>
Subject: RE: Recording of yesterday’s OMCB Annual Meeting

Thank you for this information.

Please state the PIA exemption by which an approved report by a public body (including one dedicated to open government) is not public information.

You didn’t address my request for the minutes from the 2019 OMCB Annual Meeting. Please do so.

Please also email me either 1) the minutes for the 2020 OMCB Annual Meeting, or 2) when you plan to post them online.

Sincerely,

J.H. Snider

From: Clark, Janice <jclark@oag.state.md.us>
Sent: Wednesday, September 16, 2020 7:54 AM
To: ‘J.H. Snider’
Subject: Re: Recording of yesterday’s OMCB Annual Meeting

Mr. Snider,

There were no documents disseminated to the observers of the meeting other than the agenda. The agenda is attached per your request. The adopted annual report will be submitted to the legislature by October 1. It will be available to the public at that time.

Thank you.

Janice Clark
Administrative Officer
OMCB

From: ‘J.H. Snider’
Sent: Tuesday, September 15, 2020 5:30 PM
To: Clark, Janice <jclark@oag.state.md.us>
Subject: RE: Recording of yesterday’s OMCB Annual Meeting

Hi Janice—

Thank you for the link.

If possible, please include the documents, including the adopted annual report, that were the subject of the meeting. Please also email me (either a link or attachment would be fine) the minutes for the 2019 OMCB Annual Meeting.

Sincerely,

J.H. Snider

From: Clark, Janice <jclark@oag.state.md.us>
Sent: Tuesday, September 15, 2020 4:59 PM
To: ‘J.H. Snider’
Subject: Re: Recording of yesterday’s OMCB Annual Meeting

Mr. Snider,

The video is too big to email to most. You can access the video on the Board’s website at https://www.marylandattorneygeneral.gov/Pages/OpenGov/OpenMeetings/default.aspx#meetings. I hope this helps.

Janice Clark
Administrative Officer

Visit the Public Access Ombudsman on twitter @MPIA_Ombudsor visit the new Ombudsman website at http://news.maryland.gov/mpiaombuds/.

From: ‘J.H. Snider’
Sent: Tuesday, September 15, 2020 4:56 PM
To: Clark, Janice <jclark@oag.state.md.us>
Subject: Recording of yesterday’s OMCB Annual Meeting

Hi Janice—

Please email me a copy of a recording of yesterday’s OMCB Annual Meeting.

Thank you in advance.

Sincerely,

J.H. Snider

————

From: OpenGov <opengov@oag.state.md.us>
Sent: Wednesday, September 9, 2020 1:55 PM
To: Clark, Janice
Subject: Link to Observe OMCB Annual Meeting on September 14 at 3:00

Dear OMA Stakeholder,

Thank you for registering to observe the Annual Meeting of the Open Meetings Act Compliance Board which will be held as a Microsoft Teams meeting on Monday, September 14, 2020 at 3:00 pm. The agenda for the meeting has been posted at https://www.marylandattorneygeneral.gov/Pages/OpenGov/OpenMeetings/default.aspx#meetings

Here is the Link to observe Annual Meeting of the OMA Compliance Board

Please feel free to contact me at jclark@oag.state.md.us, or opengov@oag.state.md.us if you have any questions. Thank you again.

Janice Clark
Administrative Officer
Open Meetings Act Compliance Board