Opinion: The General Assembly’s Make-Believe ‘Open Government’ Legislation

Open Government
George Becker/pexels.com.

With the same predictability as summer and winter, every year the Maryland General Assembly introduces and passes legislation to improve open government in Maryland. Many of those bills are sold as fixes to the “unanticipated” failures of previous bills.

But somehow open government does not much improve in Maryland and, as experienced by the average citizen, actually gets worse. Make-believe is common in Maryland General Assembly politics. But perhaps nowhere else is it more egregiously practiced than in open government politics.

True, the legislators who introduce the open government bills often have genuinely high ideals. But even with such good-faith cases, by the time their bills make it through the legislature — sometimes with last-minute shenanigans — they may be so riddled with exemptions and hidden secrecy fostering mechanisms that in practice they do more harm than good.

And that is a good case.

Sometimes even the first draft of a so-called “open government” bill bakes in a large net increase in secrecy, albeit masked with sufficient complexity and artistry that it can plausibly be passed off as an open government bill. A notable exception to the above account may occur when the legislative and state executive branches are held by different political parties and legislation is narrowly focused on making the executive branch more accountable.

Despite its grandiose and misleading title, one open government bill introduced this session has been drafted to improve open government. The Maryland Transparency Act of 2021 (HB344/SB72) amends the Open Meetings Act in large part by requiring a small subset of public bodies to webcast their meetings and make the documents discussed by them at open meetings available to the public in a timely way.

The webcast requirement codifies the current status quo caused by COVID-19, as public bodies have been forced to webcast most of their public meetings despite for years claiming that the cost of doing so, including administrative burdens, would be prohibitive.

The document provision would fix one of the biggest loopholes in Maryland open government, as Maryland politicians often prefer not to make potentially controversial public documents available to the public until after they are approved at a public meeting and no longer considered either newsworthy or politically salient.

Consider two examples from the Anne Arundel County Public Schools, the school district where I live.

In a given year, the agreement negotiated between the teachers union and the board of education is arguably one of the most important documents the board approves. But good luck getting a timely copy of the report not only after the board places it on its official open meeting agenda for board approval but even after it approves it.

There always is some plausible excuse for not making it publicly available in a timely way — such as due to unexpected delays in officially printing the report. All this is legal under Maryland law, so the excuse is just used for political cover.

Regardless of the excuse, the delay is a democratic travesty because that public document dictates more than 80% of my school district’s operating budget (assuming the other unions in my district piggyback on its terms) and a large fraction of its most important, carefully specified, and actually enforced policies regarding school operations.

The board’s excuse for not making the agreement public until after its meeting to approve it is especially grating because that excuse conflicts with the open government excuse the board previously uses to hide its months-long negotiations from the public: that it will vote on the results of its negotiations at an open meeting with full public participation. (And never mind that the teachers are kept up to date on the negotiations prior to board approval, will lobby public officials — sometimes in a mass action — if they’re unhappy with how they are going, and must by law vote to approve the contract before it reaches the board for the above-described final vote.)

A second example is the 150-page report containing the one-time external audit of the school district’s management.

The board had hired a team of consultants who spent hundreds of thousands of dollars and seven months writing the glitzy report. Whenever constituents complained to board members about the school district’s lack of accountability, they were often told, “Wait for this independent, external audit.” But when the board was finally asked to approve the report’s contents at its Aug. 12, 2020, meeting in the dead and secrecy of summer, school staff used the “draft report” exemption to prevent its contents from being released prior to the meeting.

By the time the report was released to the public a day after the meeting, public attention had already moved on to other matters. What might the board and staff have wanted to hide?

Surely, some minor criticisms of the district, but also that the consulting firm had apparently been crippled from the get-go in its permissible research methods and subjects; the board had used the consultant in part as an excuse to avoid doing its own meaningful and potentially controversial oversight.

At a Senate hearing Feb. 2, one senator complained of her similar experience with the Maryland State Board of Elections regarding an election report she was anxious to read: “[T]here were — and I’m not exaggerating — 86 pages of documents that were going to be discussed at the meeting and they were posted as the meeting was started. How could a reporter possibly synthesize and review all of that information, let alone a person or an advocacy organization in trying to get that in order to ask appropriate questions or participate and engage in a meeting.” Note that she is complaining that the election report was only made available during the meeting rather than when the meeting agenda was posted.

This is much better than my own experience, including with the Open Meetings Compliance Board’s annual public meeting, when the key reports are not made available until at least a day after the meeting.

So what’s not to like about a bill designed to reduce the amount of fake public participation at Maryland open meetings?

The bill’s sponsors knew their bill would never pass if it covered local county and school governments, which exercise great clout within the General Assembly. Nor does it cover the General Assembly itself.

Thus, it only applies to a small subset of relatively weak state public bodies and local election boards. Even then, if the past is any guide, the legislation is likely to be crippled before it has a chance of passing. It would be a miracle if the language requiring disclosure of public documents survives substantially intact after those made accountable by it have had a chance to lobby against it.

The Equitable Access to Records Act (HB183/SB449) deserves to be in the Hall of Shame for the discrepancy between its stated purpose and actual effect. The claimed purpose of this bill is noble: to strengthen equitable access to public documents, primarily by strengthening enforcement of the Public Information Act. Average citizens who have used the Public Information Act to seek controversial or sensitive information know that there is a great need for an enforcement fix, as the Public Information Act for them is not only an unenforced but unenforceable law.

The problem is that this claimed fix is not a fix at all but a wolf in sheep’s clothing: a cybersecurity bill masquerading as an open government bill — except covering information that no politician would ever dare publicly to claim should be kept secret from the public. In the name of fixing the enforcement problem, it would make it worse.

The proposed pseudo enforcement mechanism is to increase the funding and powers of the Maryland Public Information Act Compliance Board and the Public Information Access Ombudsman. But these entities have been designed in countless seemingly innocent and thus below-the-public-radar ways — and sometimes with a heavy dose of smoke and mirrors, especially the ombudsman — to ensure capture by the agencies they are supposed to hold accountable.

They do so, in part, by exhausting and discouraging average Maryland citizens who are foolish enough to think these supposed enforcers will champion their interests, not the agencies’ interests. Illustrative of the politics behind the bill is that the two trade associations that have been Maryland’s most inveterate and effective opponents of open government — often lobbying in secret on behalf of Maryland local public officials who publicly preach their love for open government but actually hate it — are given control of one of the five seats on the Public Information Act Compliance Board.

If there ever was a bill where the devil is hidden in the details, this is it.

One of the primary reasons the major trade associations that hate open government in Maryland support this bill is the new and seemingly benign power it gives their clients to reject requests by Public Information Act requesters that are “frivolous, vexatious, or in bad faith.”

This exemption is ripe for both agency and Compliance Board abuse — party because the terms aren’t defined in the legislation and partly because any request designed to hold powerful public officials accountable is, by definition, vexatious to them (that is, “causing or tending to cause annoyance, frustration, or worry”). It also gives agencies compelling incentives to employ their existing bag of tricks, including “Censorship by PIO” (discussed below), to turn simple and easily fulfilled requests for controversial information into months-long vexatious requests.

A decade ago I published an op-ed in The Washington Post,Maryland’s fake open government.” Alas, the problem of fake open government for average citizens in Maryland has gotten even worse since then, even though the technical obstacles and cost of posting potentially controversial public documents online have dramatically declined since then. This bill is a great illustration of the politics that has allowed that to happen.

If the General Assembly were serious about making public documents accessible to the public, it would focus on three reforms. First, mandate that public documents, including potentially controversial public documents such as contracts of all types, be placed online — and in a machine-readable format — so citizens must not even file a Public Information Act request to access them. This would include designing government software with a public interface so the public can access the information directly. The U.S. Census Bureau is a model of such public disclosure.

J.H. Snider

Perhaps in no other area of government has the discrepancy between technological and institutional capacity become so large as in open government.

In an era in which every print document up for discussion or approval at a public meeting across the entire state of Maryland during a given fiscal year could fit on a single $100 hard drive — about a billionth of Maryland’s annual budget for government — it should be a source of profound shame that Maryland politicians still contend that providing comprehensive and timely online public access to such documents is too expensive.

It’s also an era in which search engines, including Google’s and Microsoft’s, would be happy to provide free citizen-friendly access to such documents if only government would make all their “public” documents, including their potentially controversial documents, available online.

Second, require local governments to pay the litigation cost of requesters who successfully sue them for public documents that were illegally kept secret under the Public Information Act. Requesters who lost would still have to pay their own attorney costs. Whereas Maryland’s current open government enforcement system is designed to give the benefit of the doubt to government secrecy, this reform would tend to change the default position to government transparency — just like our politicians already claim it is.

To head off such embarrassing and costly suits, local governments would have a strong incentive to deliver on their otherwise insincere promises to make public documents — even potentially controversial ones — actually accessible to the public. States including Florida, Washington and a dozen others already employ this enforcement model.

Third, prevent the widespread abuse of what the Society of Professional Journalists, America’s leading trade association for journalists, labels “Censorship by PIO.”

This label is a shorthand way to describe the gag orders local governments routinely use to ban journalists, including citizen journalists, from talking to their expert staff outside the control and watchful eye of their local public information officers. Some states protect employees’ First Amendment right to confidentially share sensitive and controversial information with the public. Maryland is not one of them.

Among the awful effects of Censorship by PIO for government transparency and accountability is that it has made a mockery of Maryland’s Public Information Act for requests involving potentially controversial information when the documents containing that information are not known upfront.

Without the ability to talk to expert staff confidentially, requesters may have great difficulty finding out what relevant public documents exist, let alone the right questions to ask. Without that information, requesters may be forced to submit broad and vague PIA requests, which allows PIO officers to then accuse them of engaging in “fishing expeditions” (or, in the language of the “Equitable Access to Records Act, “vexatious” requests).

Requesters may then be forced to refine those requests in a series of follow-on requests spanning many months, as they attempt to ferret out what relevant public documents exist. If they ultimately succeed in nailing down the relevant document and the clock has not already run out on its newsworthiness — a rare occurrence — the PIO may then claim under the PIA that he is exempt from replying because he has gone along with the fishing expedition long enough.

All this, keep in mind, for a public document that could easily have been located by a quick call to the relevant staff expert who, if not restricted by Censorship by PIO, could have provided it electronically within seconds to the requester. Thus, a shrewd PIO — of which there are many in Maryland — can use Censorship by PIO to effectively gut the PIA.

The General Assembly is considering two open government bills with grandiose and misleading titles: a modest one that goes after some of Maryland’s politically weakest public bodies but that could indeed enhance open government if it is not first gutted, and a more ambitious one that appears to go after the strong but that in practice will enhance their corrupt capture of Maryland’s open government enforcement mechanism.

Sadly, because of its flaws and the General Assembly’s awful track record with such bills, I’d bet the latter bill will pass.

–J.H. SNIDER

The writer, president of iSolon.org, has written widely on open government policy and politics and is a former fellow of the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy.