Baltimore County Executive Johnny Olszewski Jr.’s administration has erased data, missed deadlines, ignored requests and redacted information already available in other public documents, according to a Baltimore Banner review of responses to public records requests over the past three years.
In one instance earlier this year, the county’s Office of Law deleted information within a database tracking county compliance with public information laws without disclosing the records had been altered. One of the deleted columns showed whether the county was “compliant” or “noncompliant” with public records requests.
The Baltimore Banner’s review also found:
- The county failed to respond to records requests within the law’s time constraints 41% of the time over roughly three years, according to county data. Of the nearly 200 requests still incomplete near the end of last year, two-thirds were past due.
- Records requests have been completed by county staff and then withheld, sometimes for several months.
- The law office has redacted information in its response to record requests that could be viewed un-redacted by any member of the public by requesting hard-copy files, such as those held at the Department of Permits, Approvals and Inspections.
- The county has initially denied the existence of some public records, such as emails older than 18 months and detectives’ notes, before later releasing them after searching again.
Olszewski campaigned on bringing sunshine to local government and has repeatedly asserted that his administration is the most transparent in Baltimore County history. Under Olszewski’s leadership, Baltimore County has made more data and records available online and encouraged more oversight of county spending and operations.
Olszewski said in a statement that he inherited a government “where transparency was too often an afterthought.”
“My administration has made it a top priority,” he said.
But many of the county’s responses have not adhered to requirements of Maryland’s public records law, according to several attorneys who spoke with The Banner.
Under the Maryland Public Information Act, records custodians must disclose public records within 30 days of when requests are received, or 60 days at the latest, with approval from the requestor. An agency must redact privileged information, such as Social Security numbers, but the records custodian must notify the record seeker of all redactions and justify each one in writing. And the law should be interpreted to favor public access, attorneys said.
The county’s recent handling of public records has prompted at least one lawsuit, with a former county administrator suing the county over its refusal to release documents related to a retirement decision for a county firefighter.
Rignal Baldwin V, an attorney representing the former county administrator, has twice sued the the county for records access and shared some of those records with The Banner. The county has budgeted at least $380,000 to two law firms to defend it from the ongoing lawsuit.
“Do you hit timeliness benchmarks?” said Baldwin. “The answer is no. Are you disclosing information that is disclosable? No, they are not. Are you acting in accordance with the purpose of the law? No, they are acting contrary to it.”
“It is systemic,” he said.
Under the Public Information Act, anyone may submit a written request for specified information from government agencies. The law prohibits inspection of personnel, juvenile and medical records, and attorney-client privileged communications. It also gives local governments discretion to withhold documents if the custodian believes that disclosure would harm the public or if the records sought can be couched in “executive privilege,” meaning private decision-making communications between an executive and their close advisors.
Records custodians must then provide a letter within 10 days acknowledging receipt of the request and whether it is denied. Agencies may charge fees for the time and materials it takes to process the request, or may refuse to fulfill it if records aren’t immediately available and the agency determines compiling them is too cumbersome.
Custodians who “willfully and knowingly” release records rev protected information that could be used to identify someone are liable for damages determined by the court, according to the law.
But Baltimore County responded to public records requests from The Banner and others in ways not outlined in the state’s public information laws.
In February, the Banner sought to review an audit trail of requests submitted between January 2019 and November 2021that were tracked by Baltimore County using a third-party database. The application, NextRequest, is designed to centralize records requests, make it easier for the public to submit them, and help agencies track compliance internally.
The county’s law office, headed by attorney James Benjamin, deleted 11 columns with thousands of entries in a dataset from NextRequest before providing it to The Banner.
When questioned by a reporter, the law office — which said it “inadvertently” failed to disclose it altered the documents — explained that the columns were erased because they’re “not utilized by the county.” But one removed column indicates whether the county is “compliant” or “noncompliant” with the law on each request.
Weeks later, Benjamin provided The Banner an updated spreadsheet without the deletions.
The Banner confirmed the deletions with Baldwin, who had obtained the same dataset from the county months earlier with all columns intact.
County spokeswoman Erica Palmisano said the county did not intentionally hide public information.
Maryland public records law requires that privileged information be redacted, not deleted, from records, attorneys say.
“The MPIA does not empower the … agency to sort of selectively delete public records before producing them,” said Ballard Spahr attorney Maxwell Mishkin, speaking generally about the law.
“It’s truly unusual to hear of an agency doing that,” he said.
The county has been knocked for its handling of public records before. In 2019, the Baltimore County Police Department omitted crime statistics from records sought by Baldwin and has been faulted by the Public Information Act Compliance Board for overcharging requestors. A 2019 opinion by the board in one case found the department imposed unreasonable fees to reproduce certain records without justification.
The county also has used the executive privilege exception to justify some redactions, even if the redacted information — such as emailed correspondence between members of Olszewski’s administration and department staffers — is available in other county records. The county used the exception to deny a request for copies of department budget requests submitted to Olszewski as the administration drafted its spending plan.
The county says it doesn’t track how much it charges for public documents. The Office of Budget and Finance didn’t respond to the Banner’s request to review cost estimates in letters required to be sent within 10 days of getting the request.
Olszewski has made some progress in improving public access with several new initiatives. The Democrat has reeled in hundreds of constituents to speak at budget hearings that were long poorly attended. He created the county’s first Office of the Inspector General, although he later sought to restrict her investigatory authority.
He has invested in software to map most development projects and code enforcement complaints. He’s published a series of interactive data dashboards with statistics about police complaints, use of force and crime. He’s said he enabled the public to review the county’s “entire ledger” of payments “down to the individual check.”
Baltimore County’s spokespeople wouldn’t make Benjamin, the county attorney, available for interview. County Administrative Officer Stacy Rodgers says the county’s responses to public records requests have been slowed by people requesting the same records multiple times through separate agencies. But, the county’s own records database showed fewer than 3% of closed records requests were marked as duplicative or “made in error.”
“There’s really no way for, say, me or anyone else to know how many requests are coming and how many are duplicative,” she said.
“The departments do a good job in responding on the timeliness side, but we need to reduce duplication of effort,” Rodgers said.
She envisions a process by which one “gatekeeper” is assigned to field each request before sending it to a custodian. There should be training, she added, “to ensure that all staff understand what types of documents would potentially be restricted because of exemption.”
In his fiscal 2023 budget, Olszewski wants to fund a public information officer position within the law office for $75,000. He’s proposing to spend $141,000 to update its public records platform “to further streamline the PIA response process,” he said.
Public access a patchwork, watchdogs say
Public records management across Maryland is terribly inconsistent, according to audits from the state’s Public Information Act watchdogs and the MDDC Press Association. Larger jurisdictions tend to be more opaque than less populous counties, which process fewer requests.
The audits shine a light on issues across dozens of local and state agencies. Some weren’t willing to compile information altogether or delivered only a portion; many couldn’t or wouldn’t say how frequently they charged fees or how often they’d delivered records by the law’s 30-day deadline.
Only three departments — Caroline, Garrett and Allegany counties — provided the Press Association all requested information. Baltimore, Montgomery and Anne Arundel counties and Baltimore City either ignored the request altogether or declined to hand over data.
But just because a department fails to follow the law doesn’t always mean they’re attempting to hide something, experts say.
“It is a resource issue, I think it’s a records management issue,” said Rebecca Snyder, executive director of the Press Association.
For one, local leaders tend not to prioritize resources for public records management. Processing wide-ranging requests can take hours to fulfill. When records are delivered, custodians may have interpreted the law narrowly to avoid wrongful disclosure liability. And custodians across local agencies have myriad other work responsibilities.
“It’s always at the bottom of the pile,” Snyder said.
Compliance ‘largely optional’
Unless they have the cash to spare, Marylanders have virtually no recourse to compel government agencies to turn over public documents.
Outside of the courts, Maryland’s Office of the Public Access Ombudsman is the resource for those who want to challenge an agency over whether it has acted outside the law. Ombudsman Lisa Kershner received nearly 480 requests for help in 2020. Separately, the compliance board issues opinions only on fee complaints.
But neither the ombudsman nor the compliance board may sanction agencies that violate the law, rendering compliance “largely optional, not mandatory as the legislature intended,” according to a report released by the watchdogs in 2019.
Only recently has the General Assembly majorly updated the state’s sunshine law despite advocacy to bolster it over the years. A new law taking effect July will require Maryland’s public records custodians to develop a policy to proactively disclose records. That could include posting responses to Public Information Act requests publicly, like Montgomery County.
But one significant reform came in 2021, when state lawmakers passed Anton’s Law to make police disciplinary records disclosable. The Press Association reports, though, that police departments across the state continue to stonewall the public from reviewing them.
“I think you’re seeing this in Baltimore County — the culture of transparency is not always alive and well in every corner of the state,” Snyder said. “And I think that’s kind of because it’s so discretionary. It’s up to the whims of the custodians, in some ways.”