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Mobtown Beat

Legal Limits

Proposal to Limit Public-Records Access Draws Fire

By Chris Landers | Posted 3/5/2008

A bill blocking access to some information requested under the Maryland Public Information Act will be referred to a subcommittee for amendments. The bill, introduced at the request of Baltimore City, would require anyone seeking information from a state or local government agency related to a pending lawsuit, to obtain a court order.

David Ralph, chief of the city Law Department's Litigation and Claims Division, testified Feb. 27 before the House Health and Government Operations Committee that the city was overwhelmed by requests from attorneys trying to circumvent trial-discovery laws by gaining access to further information under Maryland's Public Information Act. Ralph told legislators that the bill had "nothing to do with the limitation of public information. The only thing we care about is requests that were meant to be abusive."

The Public Information Act, which became law in 1970, governs the release of state documents and provides instances in which documents cannot be released, such as where the information could compromise trade secrets or medical information.

The bill as introduced drew fire from lawyers and media groups, which described it as overly broad and pointed out that under current law the onus is on the state to prove that the information is exempt from release under the act. Stephen Sachs, a former Maryland attorney general, says the city's proposal "turns the Public Information Act on its head." "The Public Information Act is a carefully balanced act," he says. "Balancing the public's right to know with privacy, security, all the exemptions. The burden is always on the government to show why the request can be denied." Here, Sachs says, the requester would have to show a judge why the information should be released.

In a letter to the House committee, current Maryland Attorney General Douglas Gansler called the proposed changes to the act "troublesome."

"For example," he wrote, "because some agencies are continuously involved in litigation, this provision could apply to vast quantities of records and effectively reverse the [Public Information Act]'s policy of access to one of non-access. Moreover, the exemption would apply to requests made by persons who have no involvement or interest in any litigation with the agency."

In a memorandum submitted to legislators the day of the hearing from Demaune Milliard, the city's director of government relations, Mayor Sheila Dixon's administration supported the bill with some amendments, including a requirement that the government office involved in the litigation file a petition to stay release of information with a judge. The amendments had not been made a part of the bill by Feb. 29. Sachs, who had looked over the city's memorandum after the hearing, says that "the bill as originally drafted was a catastrophe. This is merely a disaster."

City lawyer Ralph says he has consulted with opponents of the proposed changes, and that the city is working to narrow the scope of the amendment. He says the city receives an average of two such requests a month, but they add up to hundreds of pages on multiple subjects. He says one compromise in the amendments would force the city to go to court to petition against each request it deems abusive, placing the burden of proof on the state. Previous attempts to block requests based on a last-resort provision in the existing act have failed, he says, because judges in civil cases are reluctant to become involved in public-information law. Ralph hopes the city's proposal would force the courts to examine the issue, which he says places an unfair burden on state agencies and creates an uneven playing field in the courtroom.

Baltimore Del. Nathaniel Oaks (D-41st District), one of the sponsors, says amendments would be hashed out by the House Government Operations Subcommittee. Those hearings have not been scheduled. Baltimore Del. Curtis Anderson (D-43rd), the lead sponsor of the bill on behalf of the city, could not be reached for comment.

Sterling Clifford, spokesman for the Dixon administration, says the city hopes to amend the bill in the subcommittee.

"Anytime you're talking about an adjustment to the Public Information Act," Clifford says, "you go into it expecting an uphill battle."

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