Frustrated by the rising cost of obtaining government documents, three public interest groups have turned to the state’s highest court for relief.
The organizations want the Court of Appeals to interpret state law in a manner that would make most government documents available to the public free of charge. And in cases where fees are warranted, the groups say it’s time state and local governments stopped charging “exorbitant” rates.
The groups — the ACLU of Maryland, the Baltimore-based Public Justice Center and the Washington Lawyers’ Committee — filed their petition with the Court of Appeals earlier this month. Their plea came in the form of an amicus brief filed in support of the appellants in Baltimore City Police Department, et al. v. Open Justice Baltimore, a civil rights organization.
The groups’ lawyer noted that the General Assembly has instructed state and local agencies that they should waive document fees when doing so “would be in the public interest.” Despite that order, the public has seen “a disturbing pattern” emerge in recent years.
“[A]gencies are increasingly demanding that public interest organizations like [the petitioners] pay thousands or even hundreds of thousands of dollars to access records about the operations and activities of the government,” the groups wrote.
The ability of individuals and groups to hold governments accountable for their actions “begins to crumble if government agencies are permitted to erect barrier after barrier when nonprofit public interest organizations… seek access to public records in furtherance of their missions,” they added.
The groups pointed to one case, ACLU of Maryland v. Sheriff of Calvert County, in which the plaintiff was charged more than $12,000 for records of strip searches and body cavity searches.
The ACLU of Maryland has challenged that fee demand and the case is pending, their lawyer said.
Maryland’s open access to documents law, the Public Information Act, was adopted in 1970. It was modeled after the federal Freedom of Information Act, which took effect in 1967. The state’s law was amended in 1982 to allow agencies to impose heftier fees in cases where corporations were using PIA inquiries to ferret out information about competitors.
In most instances, public interest groups (and news organizations) routinely ask that document fees be waived, invoking the “public interest” clause to back their request.
The three groups petitioning the appeals court pointed to federal agencies, which they said “rarely charge fees.” FOIA activities are covered by fees less than 0.4% of the time, they said. And when fees are imposed, “any such charges are almost entirely limited to costs— such as photocopy costs, at low per-page rates. Where they do charge search or review fees, they are almost always limited to commercial business requesters.”
The high compliance rate “means federal agencies recognize that part of their job is to produce public records when FOIA requires,” petitioners claimed.
Maryland agencies, however, have a more mixed record, according to an analysis conducted by the state attorney general in 2019.
Although some agencies — the Departments of Commerce, Juvenile Services and Education — granted all of the waiver requests they received, the Department of Natural Resources “did not grant any” of the waiver requests it received. Eight of the thirteen agencies that received waiver requests granted at least half of them.
The notable exceptions, the AG’s office found, were the two agencies with the largest caseloads, the Department of the Environment and the Maryland State Police. They “granted a relatively small percentage of their waiver requests— 4% and 10%, respectively.”