Baltimore County Executive Johnny Olszewski has opposed a handful of state bills designed to improve the media’s and public’s access to certain government documents obtained through Maryland’s version of the Freedom of Information Act (FOIA) which allows any member of the public to request them.
As a board member for the Maryland Association of Counties (MACo) – a non-profit and non-partisan organization consisting of elected officials and representatives from Maryland’s 23 counties and Baltimore City – Olszewski would not confirm whether he and members of his administration specifically reached out to legislators on the bills with his opposition, but instead conceded that his positions on some of the legislation are in alignment with those of MACo.
“The administration supports the admirable intent of the proposed pieces of legislation, but joins our colleagues across the state who believe that many of the bills could prove untenable in practice,” said Sean Naron, Olszewski’s spokesperson. “County Executive Olszewski continues to make increased transparency a priority, taking unprecedented steps to open up Baltimore County government for all residents.”
Access to public records – through Maryland Public Information Act (MPIA) or FOIA requests – is designed to keep citizens “in the know” about the government’s business.
The United States Supreme Court considers such access a vital part of democracy, stating that the “basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”
Enacted by the Maryland General Assembly 50 years ago – in 1970 – the MPIA was established to provide the public a broad right of access to records created or maintained by state and local government agencies in the course of carrying out their official duties.
MACo, which advocates for its government agency members, takes positions on legislation and drafts bill proposals through a legislative committee and an elected board of directors, on which Olszewski serves as treasurer.
However, only the legislative committee votes on positions that it recommends for legislation and its support or opposition of state bills. Olszewski and the board do not vote on MACo’s legislative positions.
But when asked about his views on his association’s opposition to some key legislation, the Olszewski administration expressed where it is in lockstep with positions taken by MACo which looks out for government employees to ensure local autonomy due to each area’s unique circumstances. Specifically, MACo has advocated on behalf of its members who say they are overburdened with public record requests, especially in departments that lack the staff to keep up with demand.
Specifically, Olszewski agreed with MACo’s opposition to a bill – HB 42/SB 67 – which aimed to reduce the time government agencies must produce public records to requestors from 30 to 15 days.
Currently, Maryland trails three quarters of the nation and the federal government when it comes to time requirements for when documents must be produced within a set number of days.
Roughly half the country requires that government agencies produce public documents in seven days or fewer, while one quarter of the country has no such time requirement, but instead is asked to produce documents as soon as possible.
(Republican State Sen. Chris West, who represents Legislative District 42B, pulled his senate bill from a committee on Monday due to fierce opposition his office said it faced from agencies – including from MACo – who stood opposed to the shortened time frame. Even The Baltimore Sun’s Editorial Board – whose reporters file public information requests – weighed-in last month, stating that the bill should fail.)
Of the bills MACo supported with amendments, there was specific opposition to HB 758 by MACo – and Olszewski – to fee waivers requested by inmates, the news media, and the indigent who cannot afford to pay fees assessed when requesting public documents.
A mandatory fee waiver for inmates invites more abusive requests, only serving to inundate counties with more burdensome requests.”
“Inmates can be a challenging population to serve when it comes to PIA requests,” said a MACo representative in his testimony to a senate committee. “While there are inmates deserving of fee waivers, which counties can and in many instances do grant, there are undeniably also abusive requests. A mandatory fee waiver for inmates invites more abusive requests, only serving to inundate counties with more burdensome requests.”
In MACo’s opposition to granting indigent people and the media the fee waivers – which the Olszewski administration also acknowledges it opposed – the association testified that the bill was too broadly defined and stated that it opposed making the records available for free, stating in its testimony on the bill that, “Counties are generous in granting fee waivers, but will charge fees for time-intensive and costly requests as they put a significant burden on limited county resources. Counties should retain the discretion to grant fee waivers.”
Olszewski also acknowledged his administration’s opposition to HB 502/SB 590, a revision to the MPIA which seeks to expand the authority of the Public Information Act Compliance Board (compliance board) which would allow the board to review cases where agencies deny record requests and could compel disclosure of the records to requestors if the board finds that a denial was improper.
As it stands, the compliance board is only able to review cases to determine if fees in excess of $350 charged to a requestor for public documents is excessive. While MACo – and Olszewski – support reducing the fee to $200 – they are specifically opposed to the expansion of the board’s role in handing cases when requestors are denied records by Maryland’s government agencies.
MPIA statute allows agencies certain exemptions which permits them to redact certain information or deny a request, altogether. But the public currently has only two options when contesting a denial or redaction of records when an agency deems it is exempt from disclosing the information.
The state’s MPIA ombudsman, who acts as a neutral mediator between those requesting records and government agencies, can mediate a disagreement, but cannot compel an agency to release the records. The only next step is for individuals or media companies to take an agency to court and request a judicial review.
If passed, the legislation would expand the board’s authority thus providing another option for those requesting public documents – but who are denied them – and who would prefer to avoid the cost and time it would take to bring their matters to court – and avenue which is usually avoided and often serves as a deterrent to those pursing public documents since most record denials go unchallenged without any type of review process.
A list of the MPIA and ethics bills opposed and supported by MACo can be viewed here.
The Olszewski administration would not elaborate on its specific opposition to the contents of the bills, but when asked why each bill was specifically opposed by Olszewski, his spokesperson echoed a previous response. “County Executive Olszewski continues to make increased transparency a priority, taking unprecedented steps to open up Baltimore County government for all residents,” spokesperson Sean Naron said, repeating that Olszewski agrees with his MACo colleagues “who believe that many of the bills could prove untenable in practice.”
However, Olszewski departed from MACo on other legislation the association specifically opposed or supported, something MACo policy associate, Alex Butler, says sometimes happens.
Not all counties necessarily take the same positions as MACo and its members, said Butler. But counties often agree with each other on maintaining local autonomy, he said.
For instance, Olszewski’s spokesperson, Sean Naron, said that the administration did not weigh-in at all with a position on a bill that MACo opposed which would broaden a prohibition of campaign contributions from developers – making it uniform for all county executives and county council members from charter counties in the state – including Baltimore County – during times when the counties’ and the city’s administration and legislative bodies are considering zoning changes to properties which could benefit developers. The legislation is based on Prince George’s County’s current law which is unique to the area.
MACo’s opposition to the bill asserts that the legislation “unnecessarily imposes ethics requirements on county elected officials and candidates for county office,” while also not specifically defining what is deemed a gift, which could be misinterpreted and limiting to even MACo and its members when they participate in events with government employees.
Currently, Baltimore County has such a prohibition during its quadrennial Comprehensive Zoning Map Process which disallows the county council – but not the county executive who signs off on the legislation that establishes the zoning maps – from receiving campaign donations as it deliberates zoning decisions.
But, if passed into law, the bill would expand the restriction to county executives and the mayor, while standardizing the restriction for other counties so that the leaders who seek election for other offices – such as governor – abide by the same campaign finance restrictions so to not to give one candidate a financial advantage over another.
But while the Olszewski administration would not speak in specifics on any of the legislation it opposes, in a letter obtained by this publication between David Plymyer, former county attorney for Anne Arundel County, and Chuck Connor, the Olszewski administration’s chief legislative officer, Connor said, “The County supports a top to bottom look at MPIA law with all of the stakeholders at the table, and that’s what we’re advocating for in Annapolis.”
Such an endeavor – completed last year – produced a 57-page report written by the MPIA Compliance Board and the ombudsman. The report included recommendations for improvements to the current public records statute for the state.
In April 2019, chairmen from two committees – Senate Budget and Taxation and House Appropriations –requested a look into the public information act and asked the compliance board and Office of the Public Access Ombudsman to collect data from 23 State cabinet-level agencies concerning their PIA caseloads, dispositions, and practices over a 15-month period from July 2018 to September 2019, and to make recommendations relating to enforcement of public information responses and compliance monitoring.
The board and the ombudsman provided recommendations which included giving the two offices more authority in reviewing disputes between those requesting public documents and agencies that choose to withhold them, essentially giving MPIA more “teeth.” Currently, the board and the ombudsman cannot compel an agency to produce records or deem record denials unfounded.
But the report concluded that “An agency’s application of exemptions to either fully or partially deny the requested record is a constant source of disputes” in the state.
In a letter written to Olszewski, Plymyer challenged the county executive on his campaign promise to have an open and transparent administration while he is simultaneously opposing legislation designed to improve such transparency and access to public records.
Plymyer urged Olszewski to reconsider his opposition to the proposed legislation surrounding what could be a faster and cost effective resolution of disputes when access to records has been denied, saying that doing so would be “consistent with (Olszewski’s) campaign promise to make Baltimore County government more open and transparent.”