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COVID-19 in Maryland Justice

Some State Agencies Pause Access to Public Information During COVID-19 Pandemic

Photo from the National Institutes of Allergy and Infectious Diseases Rocky Mountain Lab.

Do inmates in Maryland prisons have access to the hand sanitizer they’ve been making at their work training program?

Does the department overseeing the state’s prisons have enough COVID-19 tests to cover all inmates, correctional officers and other staff?

How are inmates screened before they are released?

These are among the questions that remain unanswered as confirmed cases of COVID-19 continue to climb in Maryland’s prisons and correctional facilities.

The questions may remain unanswered until long after the public health emergency is over. That’s because Gov. Lawrence J. Hogan Jr (R) suspended legal deadlines for  state and local governments — including the deadline to respond to public records requests.

Some state agencies have used the edict to shut down timely access to public information altogether, for the duration of the emergency. Others are struggling to meet public records requests in a timely fashion.

The Department of Public Safety and Correctional Services and the Department of Juvenile Services have suspended the processing of all public records requests until the state of emergency has been lifted.

In early April, a coalition of prisoners’ rights organizations sent the governor a list of demands, asking him to release medically vulnerable incarcerated individuals in the face of the public health crisis.

Also on the list were calls for the Maryland Department of Public Safety and Correctional Services to publish its COVID-19 emergency response plans with hopes that it would reveal how those who must remain incarcerated will be protected from infection.

Hogan issued an executive order weeks later allowing for the release of hundreds of eligible inmates across the department, around the same time that it was revealed that 2,000 inmates had been quietly released since the public health crisis began.

Advocates championed this as a win, but many questions remain regarding those who remain behind bars, especially as some attest that protocol varies from one facility to another.

Maryland Matters asked the Department of Public Safety and Correctional Services for access to emergency COVID-19 plans adopted by each of the department’s facilities in the face of the public health crisis.

In an April 20 Request for Public Information, Maryland Matters asked how the Maryland Department of Public Safety and Correctional Services has been protecting incarcerated individuals held at all 24 of its facilities during traditionally group events like mealtime. Other questions asked: Should they fall victim to COVID-19, what kind of care do inmates receive and where are they held as they recover? And how does each correctional facility report confirmed cases and deaths to the Maryland Department of Health?

In response, the department forwarded a document signed by Secretary Robert Green indicating that the Department of Public Safety and Correctional Services has suspended the processing of all public records requests until the state of emergency has been lifted, consistent with an executive order issued by the governor on March 12 that extends legal deadlines.

When asked if requests are being processed at all, a spokeswoman for the department said that all requests are being held at this time.

Maryland Matters asked Hogan spokesman Michael Ricci about the policy of all state departments and agencies in responding to requests for Public Information.

“Not every agency has adopted this policy,” Ricci said in an email, adding that teleworking has left “scant resources” to compile and complete requests.

“It is hugely time intensive,” he wrote. “We will address this in the course of our recovery plan, and work to ensure requests are being fulfilled in good faith.”

‘Respond…fully and promptly’

Generally, public records requests are made by citizens, attorneys, advocates and journalists to state agencies with the expectation that they will be notified within 10 days of sending that their inquiry was received and will be either approved or denied.

If requesters are denied access, the department is to provide an explanation.

According to the Office of the Attorney General, if a records custodian agrees that the requested data is not privileged, the department or government entity is to send the records “immediately” or within 30-days of receipt of the request.

Department officials can ask the requester to approve an extension should the aggregation of documents warrant one, but often requests are fulfilled before the 30-day time period is through.

Attempts to alter the way that Public Information Act requests are handled in the state, including a reduction of the 10- and 30-day time limits, were proposed during the truncated 2020 legislative session. One bill passed the Senate chamber before dying in the House, while most were defeated after their initial bill hearings.

The office of the Maryland Public Access Ombudsman published guidance on its website in late March saying that while the situation at hand may present its challenges, state agencies should make “make good faith efforts to respond to all PIA requests, and should respond promptly to those that can be handled readily and/or remotely.”

“To the extent practicable, agencies should evaluate each incoming or pending request in order to respond as fully and promptly as it can and explain to the requestor its inability to respond more completely or within statutory timeframes when necessary and as needed,” the office website reads. 

Late last month, Maryland Matters surveyed a small slice of state agencies to see how they are handling public access to records under the state of emergency. 

Of the nine departments that inquiries were sent to, five provided responses indicating that, to the best of their ability, they are honoring the state-mandated deadlines.

“Responding to Public Information Act (PIA) requests in a timely manner is a priority for the Maryland Department of Transportation (MDOT) in our commitment to transparency and in fulfillment of our duty as a steward of public records,” the Maryland Department of Transportation said in a statement. “MDOT has continued to honor this commitment throughout the COVID-19 state of emergency. Every PIA request that can be addressed under the traditional process and response time frame has been.”

The department did add that in instances where the requested records may not be immediately accessible to custodians because of circumstances surrounding the state of emergency, officials will work to fulfill the request to the fullest extent possible. 

“For requests either partially fulfilled or put on pause because of the COVID-19 emergency, MDOT will work with the requestor once the emergency order is lifted to provide new deadlines,” they said.

The State Department of Education issued an almost identical statement — after this article went to press.

The other good-faith responders include the Department of Housing and Community Development, the Maryland Stadium Authority and the Department of Commerce.

‘We need more transparency, not less’

The Department of Health, which has been at the center of many information inquiries during the pandemic, and the Department of Agriculture, acknowledged Maryland Matters‘ inquiry but did not offer a response. The Department of Natural Resources was also contacted but did not reply to the media request.

Ricci, Hogan’s spokesman, provided updates for these three agencies on Wednesday, after this story initially published.

The Health Department reports that it has received 127 requests for information since March 5, and with only two people on staff to answer them, has been struggling to fulfill Public Information Act requests. The agency said that many of the requests for information have been “extremely broad” and often request emailed correspondence between members of the agency and other state officials.

The Agriculture and Natural Resources departments said they are aiming to fulfill most requests in a timely fashion and on the few occasions when they have been unable to do so, the people requesting the information have been understanding.

The Department of Juvenile Services told Maryland Matters that Secretary Sam Abed had enacted the same order as the Department of Public Safety and Correctional Services, allowing officials there to respond to all public records inquiries at the end of the state of emergency.

Asked if they were still attempting to process records in the meantime, a department spokesman did not deliver a response.

The Maryland Public Service Commission, which has also adopted this policy, noted so on its website’s homepage.

Upon inspection of more than 100 of the state’s government websites, a handful addressed potential delays to records requests, including the Maryland State Police and the Natalie M. LaPrade Maryland Medical Cannabis Commission, which has been the recent subject of multiple investigations regarding transparency within its department.

“For any request relating to on-site records, MMCC will respond fully within 30 days from the date the state of emergency is terminated,” the Cannabis Commission’s website reads. “MMCC will make every effort to contact each requester within the statutory deadline to provide a more complete assessment of when and/or how the agency anticipates it will be able to provide a full and final response including the production of disclosable records that are requested.”

The situation surrounding access to public records has First Amendment rights advocates across the country concerned.

Gunita Singh, a legal fellow at the Reporters Committee for Freedom of the Press, has been regularly updating a database that tracks how federal, state and local governments are adjusting their records request policies and open meetings laws during the public health crisis. 

In an email exchange, she said that for the most part, she’d like to think that governments are trying their best to meet the needs of the public.

However, Singh did acknowledge a few governments in particular that have imposed more opaque processes, including neighboring Washington, D.C., where the City Council voted to amend their Freedom of Information Act policy to suspend the processing of requests under the state of emergency.

Singh said in a phone interview with Maryland Matters that “the uncertainty with how long this public health crisis is going to go on for is part of the reason” that these newly imposed practices are so problematic. 

She said these policies that “harm the free flow of information” are “going to be much harder to undo when the crisis starts winding down.”

“During times of crisis and uncertainty, we need more transparency, not less,” Singh said.

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Some State Agencies Pause Access to Public Information During COVID-19 Pandemic