"Go Away" Access to Records Refusals

© Alice Neff Lucan 2007

The summer of 2007 has been a bad summer for records access in Maryland and these same "go away" refusals happen elsewhere frequently. There seems to be a brief catalog of reasons commonly used to refuse records. When these particular refusals are used, it gives the impression that the agency records officer really doesn't want to produce the documents and that the agency hopes you will just go away. Here are some of the useful ways to respond when someone tells you to "go away." (We should hasten to say that this behavior isn't universal, maybe not even statistically common. But these are the kinds of refusals that make for the most notorious problems.)

Response 1. "We don't keep records in the format you requested." This is an answer from which you should infer that records are kept, somewhere. The response has just not revealed the helpful information you need, agreeing that they do keep the records, but formatted differently. Most of the time, it is apparent on its face that the agency must have a record. So ask, what format is it in, how is it indexed. Ask the direct question: "Tell me how to phrase my request so that I can get the public information that we're seeking."

Response 2. "It will cost you $X000." This will come most frequently from the agency that regards answering requests for public information as extracurricular activity, apparently not budgeted for, though it is part of the required performance of every state government agency where there is a records access law. (And there's story for you; how much money have the agencies on your beat budgeted to cover requests for public records?)

You, the journalist, must remember to request a fee waiver in your initial letter and say something specific about why the public should know the information. For example, if you are asking for something as simple as budget numbers or the cost of some specific program, your explanation can be fairly straightforward. Remember that you do not have to reveal the nature of the story that you're writing, only that the public would benefit from knowing "what the government is up to."

Having made the fee waiver request and been refused, there's no need to give up. First look to see whether you can cut down on the volume of documents you've asked for. Discuss why your request response would require so much volume with someone who knows. Next, consider whether the agency's claim that tedious redactions must be done is a valid claim. If the redactions become simpler, the cost of staff time should come down. Point out (if it is true) that the state law requires that information be provided to requesters at the lowest possible cost. And emphasize again, that fee waivers are to be considered one by one, not according to how many previous fee waivers have already been given to your newspaper. Sometimes the law will say that the access officer should consider whether the requester can afford to pay the fee - but the fact is, there is no procedure for telling a government agency officer the size of the newspaper's budget, so the financial ability to pay is nothing more than a guess. Of course the primary issue here, were the question in court - is whether the agency even has the power to review a publisher's budget and make such a decision.

Response 3. "This is exempt under the police investigatory exemption. " This is the deep and wide trench dug by law enforcement agencies that purportedly allows them to put any conceivable document into an "investigative" file and not reveal it. The Maryland Attorney General has given journalists some help on that point recently. In an opinion written in after a newspaper had been refused access to all mug shots, the AG said that the police agency had to spell out the reason why release of a particular mug shot (or document) would actually create a harm. There are surely other opinions, other authority making this same point. Stone walls and blanket refusals are not permitted.

"Thus, if a request is made under the PIA to a police department for mug shot, it should be disclosed unless the custodian can articulate a reason why it would be "contrary to the public interest" to allow inspection of the photograph. SG §§ 10-618(a). In many, if not most instances, there will be no public interest justifying a refusal to disclose a photograph. Indeed, as explained above, the practice of taking mug shots began in anticipation that they would be circulated to the public to help apprehend a fugitive."

This is found at 92 Md. Op. Att'y 26, 48-49. The opinion was issued in June of this year and should be easy to find on the Maryland Attorney General Web site. The impact of this decision goes way beyond mug shots. It means that when any denial is based on an exemption related to law enforcement investigatory records, the law enforcement agency should be required to say exactly why the document cannot be revealed by explaining why it is contrary to the public interest.

Response 4. "No we're too busy to answer you and please don't come back." This may be the response from an agency or an access officer who does not have much experience with newspaper requests and hopes not to have to deal with it. Or, it may come from an access officer who makes him/herself hard to reach. Ways to deal with this have more to do with reportorial and personal skills than with the law. Make friends with the poor secretary who has been designated the official stonewall. Go to the access office. Find the person who actually has the documents and talk about the nature of your request for access. And see below.

The final piece of advice is legal and professional. The journalist has the responsibility to know what he or she is asking for and to make the request as precise as possible. The old mythology suggested that you ask for the barn if you wanted to get the barn door. That really may not be the best approach and some reporting work should be done to identify what the document looks like, what it says and who has it.