Wednesday, March 18, 2009

Maryland Public Information Act

This post began in two other posts if you have been following the saga...

Letter delivered at 11:30 a.m.

Dear Mr. Richmond

This is a request under the Maryland Public Information Act, State Government Article §§10-611 to 628. I am making this request on behalf of myself. I wish to inspect all records in your custody and control pertaining to the Board Poll regarding Board Member’s Request for Information dated March 12, 2009, including the individual responses of each board member for each item.

If all or any part of this request is denied, I request that I be provided with a written statement of the grounds for the denial. If you determine that some portions of the requested records are exempt from disclosure, please provide me with the portions that can be disclosed.

I also anticipate that I will want copies of some or all of the records sought. Therefore, please advise me as to the cost, if any, for obtaining a copy of the records and the total cost, if any, for all the records described above. If you have adopted a fee schedule for obtaining copies of records and other rules or regulations implementing the Act, please send me a copy.

Please note that the Public Information Act affords you only 30 days in which to approve or deny my request. If you are not the custodian of these records, the law gives you ten days to identify to me the proper custodian and the location of the documents.

Jennifer Abell


LegalBeaglette said...

Just read the related article in today’s local newspaper. The article stated: “According to the Maryland Public Information Act, Wade has 30 days to comply with or deny the request.” [Agenda survey rankles Abell, Maryland Independent, 3/20/09]

It is not quite that simple.

From the Maryland Attorney General’s Public Information Act Manual:

Chapter 4

B. Time for Response

Under SG §10-614(b)(2), if a record is found to be responsive to a request and is recognized to be open to inspection, it must be produced “immediately” after receipt of the written request. An additional reasonable period “not to exceed 30 days” is available only where the additional period of time is required to retrieve the records and assess their status
under the PIA. A custodian should not wait the full 30 days to allow or deny access to a record if that amount of time is not needed to respond. If access is to be granted, the record should be produced for inspection and copying promptly after the written request is evaluated. Similarly, when access to a record is denied, the custodian is to “immediately”
notify the applicant. SG §10-614(b)(3)(i). Within ten working days after the denial, the custodian must provide the applicant with a written statement in accordance with SG §10-614(b)(3)(ii). This 10-day period is in addition to the maximum 30-day or (with an agreed extension) 60-day periods for granting or denying a request. Stromberg Metal Works, Inc. v. University of Maryland, 382 Md. 151, 158-59, 854 A.2d 1220 (2004). However, in practice, the denial and explanation generally are provided as part of a single response.

D. Written Denial
When a request is denied, the custodian must provide, within 10 working days, a written statement of the reasons for the denial, the legal authority for the denial, and notice of the remedies for review of the denial. SG §10-614(b)(3)(ii); City of Frederick v. Randall Family, LLC, 154 Md. App. 543, 841 A.2d 10 (2004) (denial letter was legally deficient as
it that failed to explain reason for denying access under SG §10-618(f)(1) in connection with closed investigation). A sample denial letter is contained in Appendix B. An index of
withheld documents is not required at the administrative denial stage, so long as the letter complies with SG §10-614(b)(3)(ii). Generally, a denial letter should be reviewed by the agency’s legal counsel before it is sent out to ensure that the denial is correct as a matter of law and to ensure that the three elements in SG §10-614(b)(3)(ii) are adequately and correctly stated in the letter.

LegalBeaglette said...

Mr. Wade’s response that the poll was anonymous is curious. Why the stealth? Do the board members want to be placed in this “I have an opinion, but I don’t want the public that elected me to know what it is” position?

My understanding was that with regard to the alternative scheduling item, Mr. Cunningham had long ago stated that he had already researched it. There was no follow through, by Mr. Wade or by Mr. Cunningham...and that’s not Ms. Abell’s failure.

The other three items proposed for discussion by Ms. Abell are (at least in my opinion) tied to school safety. The Maryland Independent article refers to “disciplinary actions,” which generally refers to the discipline imposed for conduct. What Ms. Abell has sought, I believe, refers to the incidents themselves, not the disciplinary action taken by the school system in consequence of them.

LegalBeaglette said...

The article also includes the statement: Wade might be protected by an exception to the act which allows "advice or recommendations" to remain off the public record.

That has raised some eyebrows today. A citation for that legal exception, anyone? [The PIA is included in Appendix “C” of the Maryland Public Information Act Manual, available online. Happy hunting!] Ms. Phillips?