Maryland
The state’s Public Information Act was amended in 2002 to shorten the turnaround time for requests. The new law requires custodians of state records to designate specified public records that will be available immediately upon request and to maintain a list of those public records. Items on the list will be available without a formal written request. If a custodian determines that a requested record does not exist, he must notify the requestor within 30 days of the request. All grants and denials of requests must be made within 30 days of receipt of the request under the new law.
A custodian may
not routinely deny a request based on the requestor’s identity, affiliations
or reasons for the request but may ask for identity, affiliations or reasons
if he determines that inspection of a part of the public record is against the
public’s interest. In a dispute between the custodian and the requestor,
the custodian must prove by clear and convincing evidence that he did not knowingly
or willfully fail to disclose any part of a record required to be released.
The law. The
Public Information Act defines a public record to include “a computerized
record,” a “recording” or a “tape.” Md. Code Ann.,
State Gov’t § 10-611. A records custodian must deny access to any
“part of a public record that contains information about the security of
an information system.” § 10-617(g). When the public is entitled to
examine a public record, a requester may obtain a copy or a printout. If the
custodian does not have facilities to make a copy or printout, the requester
may have access to make a copy, printout, or photograph using the requester’s
equipment. § 10-620.
A separate statute
addresses access to geographic information systems. § 10-901 to 905. These
systems, developed with public funds, “should not be unreasonably withheld
from private commercial users . . . but should not provide a public subsidy
to private commercial users.” § 10-902. An agency may set fees from
geographic information system products and services, but fees may be reduced
or waived if the products and services “are to be used for a public purpose.”
Reductions and waivers must be “uniformly” applied to similarly situated
people. § 10-904. Online access to geographic data may only be given to
someone who has contracted with an agency. § 10-905.
The PIA does not
grant the requestor the right to determine the format in which the copies are
made; rather, that right lies with the agency. PIA Manual, at 9. Thus, a requester
may not force the agency to provide the records in a computerized format when
the agency offers to provide the information in a printout. Id. However, the
attorney general’s office urges agencies to voluntarily accede to the requester’s
choice of format if doing so imposes no significant cost or other burden on
the agency. Id.
Cases &
opinions. The Open Meetings Act does not apply to e-mail communications
among members of a public body, unless a quorum of the public body is engaged
in a simultaneous exchange of e-mail on a matter of public business. The Public
Information Act applies to electronically stored e-mail messages or hard copies
of those messages in the custody and control of public officers and employees,
if those messages are related to the conduct of public business. As public records,
e-mail messages are subject to statutory restrictions on the destruction of
public records. Md. Op. Atty. Gen. 96-016 (May 22, 1996).
The public is entitled
to inspect records that reflect the earnings of government officers and employees,
whether those earnings consist solely of a regular salary or are augmented by
a bonus or performance award. Md. Op. Atty. Gen. 98-025 (Dec. 18, 1998)
Fees. The act requires
a records custodian to give requesters access to records at “the least
cost and least delay.” § 10-12(b). The statute allows “reasonable”
fees for searching, preparing and copying records. But “if another law
sets a fee for a copy, printout, or photograph of a public record, that law
applies.” The custodian may charge for supervising and providing facilities
where requesters make their own copies or printouts. The first two hours of
search time must be provided at no cost. The custodian may waive all fees if
providing the records is “in the public interest.” Md. Code Ann.,
State Gov’t § 10-621.
The PIA does not
create an obligation for an agency to create records to satisfy a PIA request,
or to “reprogram its computers or aggregate computerized data files so
as to effectively create new records.” PIA Manual at 7.
The original or
any copy of a public record in any form is covered by the PIA, including a computerized
record. § 10-611(g)(1)(2); see also 81 Op. Att’y Gen. 117 (1996) (printed
and electronically stored versions of e-mail messages are public records). However,
information concerning the security of an information system is exempt from
disclosure. § 10-617(g). On October 24, 1983, the governor issued Executive
Order 01.01.1983.18 establishing a State Data Security Committee regarding security
measures for the protection of state agencies maintaining computerized record
systems. Md. Admin. Code tit. 1, 01.01.1983.18.
E-mail.
Agency e-mail is a public record. 81 Op. Att’y Gen. 117 (1996) (Agency
printed and electronically stored versions of e-mail messages are public records).
Software.
Information systems are public records except for that part relating to system
security. § 10-617(g).
GIS.
A governmental unit may sell mapping system services and products to the general
public for a fee that reasonably reflects the cost of creating, developing,
and reproducing the product in whatever format is available. § 10-904.
Section 10-901 et seq. provides for the development, at public expense, of geographic
mapping information system services for use by the public. § 10-902.
Persons who have
entered into a contract with a governmental unit may have online access to the
geographic data in a system under the terms of the contract. § 10-905.
If copy privileges are granted, then the contract is to specify the circumstances
under which the data is to be copied and the amount of compensation that the
governmental unit will receive for the privilege. § 10-905. In addition,
the Maryland State Department of Assessments and Taxation provides on-line
dissemination of its corporation and partnership records. Likewise, Maryland’s
Code of Regulations (COMAR) is available on the Internet.
Resources. Maryland Attorney General opinions