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Advocates Decry "Pay to Play" for Public Information


In 1970, the Maryland General Assembly passed a law that requires government agencies to open most of their records to journalists or anyone from the public who wants to know what their government is up to.

The point of the Maryland Public Information Act is to make information freely available to all voters  and taxpayers – not only those with money or connections.

But increasingly, advocates of open government complain that state agencies have adopted a “pay to play” policy that has turned public information into a private commodity – or a political weapon. 

State employees are charging fees of hundreds or even thousands of dollars just for the public to look at public records that by law should be open to everyone. Critics assert the intent appears to be to discourage scrutiny of government agencies by environmental activists, reporters, community organizations, and others who are not in the administration’s favor.

“I think the frustration comes from the arbitrary nature of the way they apply the rules," said Bob Gallagher, co-chair of Maryland Clean Agriculture Coalition. He is part of a new network of nonprofit organizations and journalists pushing for reform of the state’s public information policies.

“If there’s information they want to get out, they’ll have it ready for you and won’t charge you anything," said Gallagher.  "But if the information is information they don’t want you to have, they’ll charge you to search for it, they’ll charge you to copy it. They’ll take as much time as they want to compile it for you.  They just do whatever they can to make it difficult.” 

Greg Smith is co-director of Community Research, a small nonprofit based in Montgomery County. He said the Maryland Transportation Authority told him it would cost him $97,000 for public records he requested about the Inter County Connector toll road.

“They tend to see these records as their own private property when in fact they are not," Smith said. "They are supposed to be holding these records in the public trust.”  

The Maryland Department of the Environment charged the Assateague Coastkeeper organization $70,000 just to look at – not even to copy-- 280 fertilizer management plans for large poultry operations. So the group had to back down. 

“These kind of fees are going to make public advocacy groups think twice about trying to do what they so desperately need to do," said Kathy Phillips, the Assateague Coastkeeper.

Ironically, the state environmental agency chooses to waive permitting fees for big poultry operations – but it does not waive fees for nearby residents seeking information into whether those farms are polluting their streams with manure.

The Maryland Department of the Environment warned another waterkeeper, Michele Merkel, it would charge between $21,000 and $85,000 just to examine stormwater control records for industrial sites around Baltimore Harbor.   She said she has also been frustrated by delays and fees trying to get public records about agricultural pollution.

“We’ve had a difficult time trying to get information – either because we’ve been charged a lot of money, or we’ve gotten incomplete information," said Merkel, the former Chesapeake Regional Coordinator for the Waterkeeper Alliance who is now co-director of the justice program at Food and Water Watch.  "Nowhere has this problem been more clearly illustrated than when we’ve been trying to get information about the agricultural industry, which is the number one source of pollution in the Bay and nationwide.

Betsy Nicholas, Executive Director at Waterkeepers Chesapeake, said fees for public records have a chilling effect on requests for public information, and are a form of “double dipping.” Public servants are paid and required, as part of their jobs, to provide public access to public records. And then they demand to be paid a second time for the same service.

“It’s a consistent problem throughout the state," Nicholas said. "On the whole, the general rule is if we submit a public information act request, we have to pay.  And it really impedes our ability to do our work and help find out information that is really vitally important to our mission to protect the waterways."

The Maryland Department of the Environment refused to discuss its public records policies for this radio program.  However, the agency did issue a written statement that said: "The Maryland Department of the Environment is committed to transparency and to complying with all provisions of the State’s Public Information Act. This includes compliance with provisions of the Act that allow the assessment of fees for (1) document search beyond the two hours of search time that is allowed without charge, (2) examination of documents to determine whether statutory exemptions for release apply and (3) duplication. Department staff assists requesters on matters that include providing estimates of potential fee costs and narrowing requests to minimize fees."

"The Department may grant a fee waiver if it determines the waiver is in the best interest of the public. The Department receives about 4,000 requests per year under the Public Information Act, which we believe to be the highest volume of any Maryland state agency. It is important to note that the Department simply does not have the financial resources to provide free staff time beyond two hours to fulfill Public Information Act requests for requesters with an ability to pay while still meeting the Department’s legal mandates to protect public health and the environment. Prioritizing resources to meet those legal mandates to protect public health and the environment is in the best interest of the public," the MDE statement says.

Of course, state agencies would likely receive fewer requests for public information if they simply maintained documents online in a digital form, open for everyone to see.

In the Google age, searches for public records should not require hours or weeks or months...heaps of paper…and high fees.  Web-based technology is available that would allow access to public records in seconds, with the click of a mouse.