The Digital divide

Openness in government can get pricey for the average resident who wants access to information

Friday, July 11, 2008

Click here to enlarge this photo Staff photo by REID SILVERMAN Karen Everett is the public information officer for St. Mary’s County government. E-Mail This Article | Print This Story

As e-mail and the World Wide Web have become fundamental to government communications and largely replaced postal and interoffice ‘‘snail mail” as the chief means of communications between Southern Maryland’s governments and their citizens, the rules on their transparency have been slow to catch up.

There is a wall growing between the increasing number of official e-mail communications and the ability of the public and the news media to monitor those communications. And government officials say that the wall needs to be higher in order to prevent them from being swamped by information requests.

Under Maryland law, all government e-mails are considered public documents, open to being viewed by the public, so long as they don’t contain sensitive personnel information or refer to ongoing legal actions or land transactions. Governments are obligated to provide copies of public communications if requested under the federal Freedom of Information Act.

However, there is a loophole.

Governments are allowed to charge a fee for information searches that last more than two hours, setting it as high as the per-hour cost of employee time. There is no fee scale dictating how long such searches should take.

A five-figure estimate

Recently, Southern Maryland Newspapers discovered how high government search fees could be calculated.

On May 9, the newspapers sent a FOIA request to Charles County’s government, requesting copies of all e-mails sent between the five county commissioners and a member of the Charles County Chamber of Commerce during a four-month period.

The letter specified six parties and a limited time period. It also requested that the county waive the fees for the search, as suggested (but not required) by case law for the public interest. The government had 30 days under the law to respond to the request.

On May 21, Richard A. Aldridge, the county’s chief information officer, produced a three-page memorandum estimating that the cost to search for the requested information would require 303 to 483 man-hours. Using an hourly rate of $35.62, Aldridge estimated that the cost of the search would range from $10,000 to $17,000.

Aldridge’s estimate asserted that his staff would have to find and load each e-mail backup file from the county’s system and then read each e-mail message to determine if it matched the FOIA request. His estimate claimed it would take at least three hours just to find the e-mail address of the chamber member in question.

Southern Maryland Newspapers received Aldridge’s estimate on the same day as it received printed copies of several requested e-mails collected by the county commissioners’ staff from the commissioners’ personal computers.

During a June 20 interview, Aldridge was asked why he asserted that his staff would have to search the county’s e-mail archive by hand. Aldridge said that the county’s system is not indexed for searching. When asked why he had not indexed the county’s e-mail archive, Aldridge replied that he was only required to archive the information in the event of catastrophic system failure, not make it searchable.

An official from Aldridge’s administrative services department later said that, in order to index the county’s e-mail archive, the department would have to purchase a $125,000 system. The purchase has not received high priority during the county’s recent budget cycles.

Patchwork of policies

Aldridge’s estimate is based on one of several different policies that govern the freedom of information responses of Southern Maryland’s local governments. Each county and municipality has a different one, if they have one at all.

This fact has not escaped Karen Everett, public information officer for St. Mary’s County. Everett said she has urged her fellow Maryland PIOs to take up the subject during August’s Maryland Association of Counties conference.

Both St. Mary’s County and Charles County have historically maintained logs of all snail mail going in and coming out of county offices. Everett said she takes the additional step each week of e-mailing the latest log entries to local media outlets. However, sheer volume prevents a similar system for e-mails.

‘‘E-mail is kind of a horse of a different color,” Everett said. ‘‘It’s harder. ... There’s a cost to the taxpayers.”

In addition to having the county’s information technology department find the e-mails, Everett said the county’s attorney must review the information before it is sent out in order to prevent the release of sensitive information. However, Everett said the county rarely charges media outlets for requests.

According to Danita Boonchaisri, spokesperson for Calvert County government, Calvert does not have a set policy or fee for information requests.

‘‘We don’t have any public access to our snail mail and e-mail,” Boonchaisri said. The county does honor requests for electronic information, but prefers specific requests. ‘‘There has to be some direction on what you’re looking for.”

Boonchaisri said that the county does not have a policy, because, up until now, it has not needed one.

‘‘We’re a small county, and we really don’t get many requests,” Boonchaisri said. ‘‘It’s never a big issue with us. ... People in Calvert County are happy.”

According to John J. Murphy, executive director of the Maryland-Delaware-D.C. Press Association, said that Maryland governments’ information policies are ‘‘all over the place right now.”

‘‘E-mails to public officials are intended to be public record,” Murphy said. ‘‘That’s been clearly spelled out by the attorney general and case law.”

Bob McDonald, chief of opinions for the attorney general’s office, agreed.

‘‘An e-mail is a public record,” McDonald said. ‘‘Whatever [governments] charge has to be related to the actual cost” of retrieving the information.

Both men said that, whatever policy a government has, it must do the first two hours of searching for an information request for free under the law.

Work overload

Government officials say that some sort of payment policy is needed to prevent overbroad FOIA requests from bringing their small staffs to a grinding halt.

Chesapeake Beach Mayor Gerald Donavan said he was reluctant to support the information policy and its $25 per hour search fee his council adopted in May, but finally agreed to it after a series of broad records requests.

‘‘You always have folks who see things that aren’t there,” Donavan said, explaining that a few members of the public strapped his five-member staff with a large volume of requests, looking for signs of corruption. ‘‘I’ve held off doing this for a long, long time. ... Hopefully, it will discourage some of the craziness.”

Donavan said it was not fair for the taxpayers and his volunteer planning and zoning staff to pay the bill and spend the hours to fulfill the requests of interest to a few people.

David Bliden, executive director of the Maryland Association of Counties, agreed.

‘‘The challenge is every time you have a position required to respond to public information requests, you’re denying another position,” Bliden said. ‘‘Any document request requires time.”

Bliden said that Maryland’s public information law needs to be rewritten to ‘‘import some reality into the process” and create a better balance between the public’s right to know and local government budgets.

‘‘Some of this [information requesting] is for sport, and how do you call that out?” Bliden asked.

Bliden said his association will be meeting with media representatives this year in an attempt to hammer out a better solution.