MPIA training powerpoint

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MPIA training powerpoint

  1. 1. 1 The Maryland Public Information Act Edward B. Lattner Office of the County Attorney
  2. 2. 2 Introduction  Don’t Confuse With FOIA  FOIA applies only to federal agencies  State and local governments not subject to FOIA
  3. 3. 3 Scope  Public bodies and officials covered.  Includes instrumentalities of government (Revenue Authority, maybe Bethesda Urban Partnership).  Public Records Defined  Original or any copy of any documentary material made or received in connection with the transaction of public business.
  4. 4. 4 General Rule: Public Access  A custodian shall permit a person to inspect a public record at any reasonable time  Broad access  MPIA generally construed in favor of permitting inspection  exceptions narrowly construed  Reason for request is irrelevant (cf. fee waiver issue - whether public benefit v. private/commercial interest).  Identity of requestor irrelevant (cf. person in interest)
  5. 5. 5 Privacy: Required and Permissible Denials  Broad Public Access, But MPIA Also Functions As A Privacy Act.  Important difference from FOIA.  MPIA has required denials (§§ 10-616 and 10-617) and permissible denials (§ 10-618).  Person In Interest. Generally person in interest (person who is subject of the record) can inspect his or her own records (personnel records).
  6. 6. 6 Required Denials  Custodian must not disclose certain specific types of records and certain specific types of information.
  7. 7. 7 Required Denials: specific records  Specific records (§ 10-616)  adoption and welfare records  personnel records  letters of reference  retirement records  student records  library circulation records  MVA records  arrest warrants  Police reports sought for marketing legal services  miscellaneous records
  8. 8. 8 Required Denials: specific information  Specific information (§ 10-617)  medical, psychological, or social information  confidential commercial or financial information (salary of public employee excepted)  public employee’s home address or telephone number  an individual’s finances  occupational and professional licensing records  investigatory procurement information  miscellaneous information
  9. 9. 9 Permissible Denials  Custodian may withhold the following if disclosure would be contrary to the public interest (§ 10-618)
  10. 10. 10 Permissible Denials: executive privilege  Inter and intra agency memoranda and letters.  applies to records containing confidential opinions, deliberations, advice or recommendations made to a public employee.  exemption is intended to preserve free and frank discussion and the internal deliberative process.  doesn’t apply to purely factual data.
  11. 11. 11 Permissible Denials: investigative records  MPIA allows custodian to deny inspection of investigatory file compiled for law enforcement purpose  but person in interest (subject of the complaint) can inspect investigatory file, subject to various exceptions, such as . . .  custodian can deny inspection by person in interest to extent would interfere with valid and proper law enforcement proceeding, but that’s only while the issue is pending  custodian can deny inspection by person in interest to extent inspection would disclose identity of confidential source, even after investigation is closed, if information given under express or implied assurance of confidentiality.
  12. 12. 12 Temporary Denial  If official custodian believes disclosure of record that must otherwise disclose would do “substantial injury to the public interest,” custodian may temporarily deny and apply to circuit court within 10 working days for an order permitting denial.
  13. 13. 13 Other Laws  Other Law May Make Record Privileged Or Confidential.  MPIA recognizes that custodian must deny inspection where record is privileged or confidential by other law (attorney client privilege) or inspection contrary to state or federal law (federal Buckley Amendment re: student records)  Other Law May Compel Disclosure.  Federal court order  Court subpoena
  14. 14. 14 Procedure  Necessity Of Written Request  Generally custodian should make records available without written request  Custodian must require written request if  reasonably believe MPIA will require denial  written request will materially assist Department in responding  request may involve substantial cost or time in making records available
  15. 15. 15 Don’t Create Records  MPIA does not require custodian to create records; only allow inspection of existing records  Custodian not required to reprogram its computers (creation of new instructions to the database to access linked data) or aggregate computerized data files to satisfy request.  It’s not “reprogramming” if clerical employee with standard computer skills could generate report by following pre- existing instructions.  Example:  List of all dog owners in 20850 zip code  May not be categorized by zip code  Applicant can inspect all dog owner records and copy selected records
  16. 16. 16 Response  If you’re not the custodian – notify within 10 work days and direct to proper custodian, if known.  If custodian, deny of provide within 30 days.  Scope of search. Custodian must conduct search reasonably calculated to uncover all relevant documents.
  17. 17. 17 Response: Denial  If denied, within 10 working days of denial, custodian must give applicant written statement of reasons for denial, legal authority for denial, and appeal rights.  county attorney’s office must review denial before sent to applicant.  must give all reasons that support denial; otherwise could be limited on appeal  2 year statute of limitations to challenge in court CJ § 5-110
  18. 18. 18 Response: Redaction and Extension  Redaction and Severability. Custodian must permit inspection of any part of the record that is subject to inspection and is reasonably severable.  Time Extension. Custodian may extend any time limit 30 days with applicant’s consent.  Good idea – keep requestor informed of progress of request.
  19. 19. 19 Fees – search, preparation and copying  Government can recoup its actual costs for search, preparation, and copying.  Copies. $.15/page; more for large size or certified copy; no charge if total copying charge less than $1.00.  Search and Preparation.  First two hours are free  After that, may charge actual cost for search and preparation (e.g., cost of outside contractor or hourly rate of employee assigned to do work)
  20. 20. Electronic Records  Must provide record in a searchable and analyzable electronic format upon request if it is in that format, subject to mandatory and permissive redactions.  Don’t have to give electronic copy if it “would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.”  Government can remove all metadata, regardless of whether metadata could otherwise be redacted.  can remove metadata by using software program, or convert into a different searchable and analyzable format.  Effective 10/1/11 (sunsets 9/30/13) but maybe extended (HB 70). 20
  21. 21. 21 Fee Waiver  Official custodian can waive or reduce fee upon request.  Custodian must consider:  Public interest v. personal or commercial interest  Ability of applicant to pay
  22. 22. 22 Notification of those potentially affected  Notification. Custodian may notify person who could be adversely affected by disclosure and solicit their views on disclosure  Opportunity To File “Reverse MPIA Action.” If custodian decides to disclose contrary to that person’s request, custodian may first provide that person opportunity to file appropriate action to prevent disclosure.
  23. 23. 23 Judicial Review  Requestor may bring suit within 2 years to challenge denial.  Government has burden of sustaining decision to deny.  Court can order government to disclose.  Government liable for actual damages if finds by clear and convincing evidence that custodian willfully and knowingly failed to disclose.  Court can assess attorney’s fees if plaintiff substantially prevails.
  24. 24. 24 Civil liability for unlawful disclosure  A public employee who willfully and knowingly discloses records in violation of MPIA is liable for actual and punitive damages. Plaintiff must prove by clear and convincing evidence.
  25. 25. 25 When to call county attorney  Problem. Whenever there’s a question about construction of MPIA.  Litigation. If custodian knows the applicant is a party (or acting on behalf of a party) in litigation with the County or a County employee  Litigants must discovery documents following procedural rules governing court cases  We want to know what they’re seeking; maybe objectionable’  Denial. If you’re going to deny access to portion or entire record, must first consult County Attorney.  Temporary Denial.
  26. 26. 26 Other resources  Attorney General’s Public Information Act Manual http://www.oag.state.md.us/publications.htm

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