Computers and databases have revolutionized how public information is created and stored. But the technology has not necessarily translated into better access for the media.
Many journalists across the country are discovering that getting digital records has become more of an obstacle simply because of the format, not the content.
“A lot of agencies seem to think that electronic databases are a category in and of themselves that aren’t subject to open records law,” said Jim Lee, SPJ’s Maryland Sunshine chairman and editor of the Carroll County Times.
In a 2003 state-level public records audit organized by the Maryland-Delaware-District of Columbia Press Association’s Freedom of Information Subcommittee, seeking 25 types of records from 15 agencies, none of the agencies was willing to provide requested records in database form. In fact, none of the agencies contacted for a public record in the audit was willing to provide a record in any electronic format, with the exception of one. Its records were already available online.
The Maryland Public Information Act’s definition of a public record clearly includes records stored in databases, such as those related to courts and crime. Yet, getting these records, along with 911 information, has been the biggest problem for Maryland journalists, Lee said.
The state’s information act goes on to define the term “public record” as including “computerized records.” Yet many agencies still deny requests for public records in database form.
This has prompted Lee and the Maryland Foundation for Open Governance to work with the Maryland attorney general’s office to compile a “best practices” guide for state agencies.
Reasons for denial
Public officials and agencies have a variety of lawful reasons for denying digital public records, which parallel those for paper documents. For example, public agencies do not have to create a record if what is requested does not exist, nor are they obligated to reprogram data to meet the requester’s needs. But in Maryland, these reasons seem to be frequently applied in a questionable manner.
Maryland public agencies often cite in their denials that a database contains some information that is not releasable, such as Social Security numbers. They say removing that information constitutes “programming,” which agencies are not obliged to do under law. However, the requester often sees this as the equivalent of redacting a paper document, Lee said.
The state attorney general’s Public Information Act manual defines programming as “the creation of new instructions to the database so that access to data linked in certain ways becomes possible” and “requiring the expenditure of significant time by an individual with specialized knowledge of computer or electronic databases.” The attorney general’s manual goes on to state that redaction of material from an existing report, or a report that could be created by a clerical employee with basic computer skills, do not constitute programming under the law.
Nonetheless, if the agency is willing to accommodate a request, costs assessed for programming and formatting the database can be thousands of dollars, Lee said.
The programming clause goes hand-in-hand with the commonplace clause that agencies do not have to comply with requests that would require the creation of a new record — a rule found in Maryland’s Public Information Act as well as the Freedom of Information laws of many other states.
Agencies have maintained that removing data fields from a database that are not subject to disclosure constitutes creating new records; the other side would argue again that this is simply the electronic form of redaction.
A third reason agencies have cited in their refusal to give out public information in database form is that they have contracted out their database management to a private entity. This is not a legal reason to withhold records, Lee said.
The state attorney general’s Public of Information Act manual uses an example of such a database in showing how broad the scope of public records is, stating that “a database set up by a private vendor for us by a public agency for risk management purposes is a ‘public record.’”
The practices of contracting database management to outside providers and using copyrighted software may be making it easier for public agencies to manage their information, but in Maryland and other states, they are also giving agencies new reasons to refuse to comply with records requests.
However, not all database-related public records request denials in Maryland can be neatly pigeonholed into a list of reasons that even reference state statute.
On one occasion when Lee requested a database from an agency, the head of the agency refused to comply, saying that his employees do not always enter the information correctly. The agency head subsequently sent along paper documents instead.
The state attorney general recommends that agencies furnish public records in the form requested, but the statute does not specifically address what formats records must be provided in, leaving the ultimate decision up to the agency.
While database records in Maryland may still be as sticky an issue as ever, case law in other states is helping to clarify exactly how freedom of information laws should be interpreted for these forms of electronic records.
A recent decision by the Wisconsin Court of Appeals may have quelled some of the difficulties presented by public records stored in databases maintained by outside providers. The decision was the latest in a six-year series of litigation and conflicting lower-court decisions stemming from civil suits filed by WIREdata, a subsidiary of the Multiple Listing Service that compiles public information to provide property data to real estate agents.
Though the case did not involve a media entity directly, its considerations addressed questions important to journalists, such as who maintains responsibility for furnishing public information when the process has been contracted to a database provider; and whether agencies are obliged to provide electronic information in database form when the requester asks for it.
“Generally speaking, we feel there are some important open-government issues at stake: whether it is possible for a government entity to shirk its responsibilities under open government law by claiming the records belong to an outside contractor,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “You can’t play a shell game with public information.”
Bob Dreps, an attorney with the law firm Godfrey & Kahn who regularly represents the news media, filed an amicus brief on behalf of the Wisconsin Freedom of Information Council when the WIREdata case was being considered by the appellate court.
“The Court of Appeals actually invited the Freedom of Information Council, and I believe the newspapers and broadcasters associations, to participate, which is certainly a rare occurrence. But I think recognizing the public interest in the case, the court reached out to invite amicus participation,” Dreps said. “It was a solicitation from the court that brought it to our attention, and that makes it unique.
“Of course it did present some pretty dramatic public access issues.”
WIREdata sought property assessment databases, which are public records, from the Wisconsin communities of Port Washington, Thiensville and Sussex. The communities all refused to provide the records in database form, with the explanation that the databases used copyrighted software and their release would reveal trade secrets.
It was also argued that because the records were held by an outside provider, they were not subject to the Wisconsin Public Information Act.
The appeals court decision asserted that the records had to be released “in the format created and maintained by the municipalities’ independent contractor assessors,” regardless of any copyrighted software involved, and that only providing WIREdata with PDF files constituted a violation of the state’s open records law.
The court also affirmed that despite claims to the contrary, the municipalities are the custodians of these records, not firms who maintain or created the databases.
“The fundamental question is who has to respond to one of these requests?” Dreps said. “Was it sufficient for the government involved to say ‘Go talk to our contractor?’ On that issue, we parted company somewhat with the plaintiff — (WIREdata) wanted to hold the contractor liable as well.”
The Wisconsin Freedom of Information Council did not want to take that position, because “it invites the custodians to say ‘I’m not the right person to talk to, go talk to so-and-so.’”
“Our position is that the authority who’s responsible for the records is responsible for providing them, whether the records have been delegated to a contractor or not,” Dreps said.
In Port Washington and Thiensville, district and circuit court decisions had been in favor of the municipalities and the database firm.
In the case of Sussex, the computer programming firm that licensed the database software, Assessment Technologies, had assessed WIREdata charges of $6,600 for “programming,” plus 50 cents per parcel of land included in the records. The company also asserted that WIREdata’s request was not a public records request to which state laws applied because the data was held by a private company, not the municipal government.
“I think it’s ironic that computerization of records somehow makes them less accessible to the public,” Dreps said.
The circuit court, in its findings, determined that these records were indeed public information and found that the company was “trying to use its copyright to sequester uncopyrightable data, presumably in hope of extracting a license fee from WIREdata.” After the circuit court’s decision, which required that the database be furnished in an electronic format, WIREdata received the records as a PDF, which the appeals court later found was an improper response and deemed noncompliance.
While some of these determinations may be promising to freedom of information advocates concerned with database secrecy, they fall short of becoming judicial precedent because the case has been accepted for review by the Wisconsin Supreme Court.
In addition to addressing some of the major legal questions examined in the case so far, the Supreme Court may also address “concern that the decision was overbroad in how much right to access it gave citizens,” Dreps said.