SENATE OF MARYLAND

ANNAPOLIS. MARYLAND 214O1-1991

By Sen. Roy Dyson

By state law you have a right of access to public information. You also have the right to attend public meetings. Those two sentences appear to state the obvious what with the definition of "public." But it is in that definition that there occurs disagreement over and sometimes outright subversion of the law.

A few years ago the legislature created the State Open Meetings Compliance Board. That board hears citizen complaints about meetings closed to the public. There are exceptions to the rule requiring openness, such as dealing with personnel issues or matters subject to litigation. The Open Meetings Compliance Board rules on whether the closing of the meeting was for a legal reason or not and issues and opinion.

There also are reasons why access to information in the hands of government should be denied under law. Personnel matters is one such reason. That's why notes in a government employee's personnel file are not considered to be public information. That's also why correspondence between government agencies and their lawyer regarding a pending court case is considered to be privileged information.

But unlike with the issue of open meetings, there is no forum for average citizens to pursue if they disagree with a decision to deny access to information in the hands of a government agency. A private citizen's only recourse is to use his or her own money to challenge the decision in court. I think there should be a place for citizens to go to get an unbiased answer in matters of disagreement over access to public information.

This issue was brought to my attention when several citizens complained about the withholding of information by the St. Mary's County Attorney. The county's lawyer ruled that attorney-client privilege was at issue and was reason for denying access. We felt there was an honest disagreement and sought a legal opinion from the Maryland Attorney General's office.

This is an issue which could come up anytime and anyplace in St. Mary's and Calvert counties. The answer to the question posed to the attorney general intrigued me but a red flag immediately was raised about the larger issue of the public facing a costly legal challenge.

The answer on the specific question didn't entirely clarify the issue. It is clear that a specific piece of information would have to be reviewed to determine whether attorney-client privilege could be invoked. So the answer we got back was that it depends on the circumstances.

In a seven-page opinion the attorney general wrote, "The privilege, however, is no absolute; it does not restrict disclosure of every aspect of what occurs between the attorney and the client." He goes on to say: "At times a government lawyer may be assigned the role of articulating an agency's view of the law. If, for example, an agency lawyer provides ‘neutral, objective analysis of agency regulations' these documents may fall outside the privilege." And further: "When the attorney in effect becomes the decision maker for the agency, the documents embodying the decision are not privileged."

As you can see it is quite possible that access can be denied when it should be granted. This is not an isolated instance. I would expect it happens quite often. For that reason this past legislative session I introduced Senate Bill 512, which would have expanded the authority of the Open Meetings Compliance Board to include this issue. The Senate Economic and Environmental Affairs Committee was intrigued with the issue but felt some additional study was needed.

On June 10 the committee appointed a subcommittee to look at the issue and hold hearings. The subcommittee consists of myself and Senators Frosh, Conway and Stoltzfus. We decided to begin the hearings sometime in September. In addition to giving the responsibility to the Open Meeting Compliance Board, Jack Schwartz of the attorney general's office has offered two alternate suggestions: expanding the jurisdiction of the Office of Administrative Hearings and setting up a local review board in each county.

I would be most interested in hearing whether you have had problems in getting information from a government agency. I also would like your ideas on how to address this issue. Please call my district office at 301-994-2826 or the Annapolis office at 1-800-492-7122, extension 3673. Or you can write to P.O. Box 229, Great Mills, MD 20636. I'll let you know when the hearings have been scheduled.