Saturday, February 18, 2012

Keep Your Promise, MDTA

In “Groundhog Day,” the movie, poor Bill Murray does the same thing again and again and again until he figures out what he has to do right.

Just in time for Groundhog Day 2012, the Open Meetings Compliance Board – again – told the Maryland Transportation Authority – again – that it can’t use Maryland’s Public Information Act to block public access to meeting minutes. (The Public Information Act allows an agency to set a price for documents; in some cases the amount of money may simply be too much to pay).

The ruling stems from a Nov. 3 visit to the MDTA office on Broening Highway, Baltimore.

The three-member OMCB wrote Jan. 30: “We state, again: (1) a public body may not treat an ... in-person request for inspection as a PIA request and (2) a person’s right to inspect documents under the Act is not extinguished by the fact that the public body has retained minutes for longer than the retention period required by the Act.” Not only is the MDTA repeating its old mistakes and its old arguments, but its public records vortex has made regular complaints to the Compliance Board necessary.

Back in June 2010, in a complaint filed because the MDTA blacked-out large portions of minutes, the Compliance Board shot down the same MDTA arguments – that anything older than one year could be censored as it saw fit.

The Open Meetings Act is clearly worded: anyone who goes to a government office is entitled to read meeting documents then and there, without delay.

Delegate Mike Smigiel of the 36th District said Tuesday, “It takes a lot of gall to say, ‘yes, we have them, but the time has run out, so we don’t have to give them to you.’ That’s outside the spirit and
intent of the law. Agencies should not be able to thwart that access to documents intended by the legislature.”

Efforts Monday to reach MDTA chairwoman Beverley Swaim-Staley, secretary of transportation, for comment were unsuccessful. A message left with her Customer Service Manager, Karen Saab, was not returned. Instead, Maryland Department of Transportation spokesman Jack Cahalan sent an e-mail to say inquiries should be directed to the MDTA.

In this case, visiting to read minutes involved a 180-mile, four-hour roundtrip to Baltimore.

As it turned out, some minutes couldn’t be gathered that day. The late executive assistant, Cindy Taylor, was asked for minutes for 2005 and 2006 MDTA Board meetings, and of 2007-08 Capital and Finance Committee meetings.

Old board minutes were in binders right on a shelf, and they were able to be read and notes taken. But the other papers would take some time to find, said Taylor. She said she would send paper copies free.

A few weeks later, the Maryland Transportation Authority said copies wouldn’t be sent, and to get them electronically would cost $307 to cover the salary, health benefits and pension of an unidentified person who would have to work for six or seven hours to prepare everything.

That triggered the written complaint from the newspaper.

As in the past, the MDTA’s legal staff responded. A Dec. 20 e-mail said: “Clearly, Mr. O’Donnell is making another attempt to have the OMCB review alleged OMA violations relating to the Capital and Finance Committees ... However, this particular issue is a PIA issue and not an OMA issue as Mr. O’Donnell is now attempting to allege.”

That is wrong, said the Compliance Board. If the minutes aren’t on hand, there has to be a mutually satisfactory way to get them.

The e-mail said the “November 3, 2011 request and subsequent follow-up email request for electronic copies was treated as a PIA request. ... Mr. O’Donnell was sent a cost estimate letter detailing the cost related to the retrieval and preparation of the documents in response to his request. At no time did MDTA advise Mr. O’Donnell that it did not have copies of the documents that he was seeking but instead advised him that his request for copies of those documents was subject to the PIA and would be treated as such.”

Meanwhile, after filing the complaint, the newspaper asked for the $307 fee to be waived. That is often done for news media. MDTA Executive Secretary Harold Bartlett repeated in a Jan. 9 letter that the Public Information Act permitted them to charge and demanded $307. He denied the waiver, since he could not see how the Kent County News would use the information.

He wrote, “neither you nor the Kent County News has shown any connection between the documents sought and matter of genuine public concern or how the production of those documents will primarily benefit the public. Additionally, during the last couple of years, you on behalf of the Kent County News have made voluminous PIA requests ... and have received countless numbers of documents.”

“Genuine public concern” apparently doesn’t include censored meeting minutes, minutes never prepared, meetings held without public notice or minutes, and closed sessions that should have been open.

That view didn’t matter to the Compliance Board. A citizen can’t be sent away, then contacted with a demand for payment, the OMCB ruled.

Smigiel said, “It’s clear the agency’s been rather obstreperous about providing documents. It’s important that the press can come in (and look them over) and explain to the citizens how the government works.”

The paper’s investigation has resulted in 14 articles over two years; caused a decision by the MDTA to post its minutes on its website; and its formal declaration in November 2010 that the Capital and Finance committees would hold meetings in public with adequate notice.

When Taylor agreed to send paper copies free, the OMCB said, that was fair – as long as the MDTA had kept its word: “When a public body cannot fulfill a person’s request for on-the-spot inspection of old minutes, it may agree with that person to accommodate the request by providing copies reasonably promptly ... And, as we explained to the Authority in 2010, when a public body has transferred meetings documents to storage, ‘we would expect that the public body would agree to retrieve such records if still in its custody within a reasonable period.’“

But, “Such arrangements do not turn a person’s request into a PIA request.”

The Compliance Board concluded that the MDTA should supply Capital Committee minutes since March 2007 (the date of a formal resolution giving it approval powers).

MDTA spokeswoman Cheryl Sparks wrote in a Tuesday e-mail, “MDTA has received the advisory opinion from the Open Meetings Compliance Board .... MDTA has considered its findings, and in accordance with the Open Meetings Act, will provide you with copies of the Capital Committee meeting minutes from 2007-2008. Additionally, we will provide you with a revised cost estimate for copies of the 2007-2008 Finance Committee minutes.”

The OMCB again said the Finance Committee was probably acting on matters serious enough that it too would pass the court test, known as “Andy’s Ice Cream,” which determines when a committee is a public body because of the business it conducts, and suggested its “Meeting Notes” be released.

The MDTA Board has eight members. Only seven seats are filled. Kent County resident Art Hock was appointed to the board in October. According to the MDTA website, other members are Peter J. Basso, Rev. Dr. William C. Calhoun Sr., Mary Beyer Halsey, Michael J. Whitson, Walter E. Woodford Jr. and Bradley Mims.

Sidebar: Anyone can file a complaint

The Open Meetings Compliance Board meets several times a year to decide whether public bodies have held illegal meetings or have done something that isn’t in line with the Open Meetings Act.

There are thousands to public bodies statewide, such as county commissions, Department of Natural Resources committees, planning andzoning bodies, legislative committees, task forces, or school boards with at least two members.

Citizens, including news organizations and elected officials, can file a written complaint at no cost whenever they suspect the Open Meetings Act has been violated. Sometimes a violation is as simple as
failing to approve minutes for many months. Other times an alleged violation involves fine points in the law.

Legislation introduced this year by Delegate Anthony O’Donnell, District 29C, will require an online training program for officials and staff. The compliance board is working on web-based training program, according to OMCB staff attorney Ann MacNeille. It will be available in the spring and accessible to everyone.

She can also answer questions anyone has about the law, though the attorney general’s office does not give out legal advice to citizens.

MacNeille can be contacted at 410-576-6327. The OMCB’s address is Office of the
Attorney General, 200 St. Paul Place, Baltimore, MD 21202.

Panel rules MDTA can’t withhold old minutes
February 9, 2012 / Kent County News
By Craig O’Donnell

Sunday, February 5, 2012

... And for 2012 --

The newest volume of OMCB Opinions has been started online. See for the latest four. Two involve the MDTA and their ongoing battle to keep a much of their meeting documents out of public hands as possible.