Tag Archives: Public Information Act

Elrich Extends Response Deadline for Public Information Act Requests

By Adam Pagnucco.

In a little-noticed executive order, County Executive Marc Elrich has indefinitely prolonged the time taken by the county government to respond to Maryland Public Information Act (MPIA) requests. Under the order, MPIA requestors may have to wait until after the pandemic emergency is over before the county will answer their requests.

The MPIA is a state law that is a counterpart to the federal Freedom of Information Act. Under the MPIA, individuals may request records in the custody of state and local governments subject to a number of exceptions. The time taken by governments to respond to requests is described by the state’s MPIA manual:

Under GP § 4-203(b)(1), if a custodian determines that a record is responsive to a request and open to inspection, the custodian must produce the record “immediately” after receipt of the written request. An additional reasonable period “not to exceed 30 days” is available only where the additional period of time is required to retrieve the records and assess their status under the PIA. A custodian should not, however, wait the full 30 days to allow or deny access to a record if that amount of time is not needed to respond.

That may not be the case anymore in Montgomery County for the foreseeable future.

On October 5, County Executive Marc Elrich issued Executive Order 119-20 on the subject of “Extension of MPIA Response Deadlines.” The order’s text states:

Section 1. Extension of Deadlines

The deadlines imposed under §§4-202, 4-203, and 4-358 of the Act are hereby suspended for any request for inspection or copies of records pending before or filed with any agency or unit of the Montgomery County Government on or after the date of this Order (regardless of whether that deadline has already passed). The deadlines contained in the above-referenced sections of the Act are extended until the 30th day after the Governor has terminated the state of emergency and rescinded the proclamation of the catastrophic health emergency.

Section 2. Directive to Departments.

Each custodian of records should provide a copy of this Order to a person requesting a record under the Act, and (if practical) a non-binding estimate as to when the custodian will respond to the request.

Section 5. Effective Date.

This Order shall take full force and effect immediately.

No one knows when the state of emergency will end. This executive order could conceivably postpone MPIA responses by a year or more. This is an unprecedented act by Montgomery County Government. Additionally, the reference to “any agency or unit” of the county government raises the question of whether it applies to MCPS, Park and Planning, Montgomery College and other affiliated entities.

County governments normally do not have the option of overturning state law, but Elrich cites an executive order by Governor Larry Hogan as his source of authority. That executive order says in part:

The head of each unit of State or local government may, upon a finding that the suspension will not endanger the public health, welfare, or safety, and after notification to the Governor, suspend the effect of any legal or procedural deadline, due date, time of default, time expiration, period of time, or other time of an act or event described within any State or local statute, rule, or regulation that it administers. The unit head shall provide reasonable public notice of any such suspension.

Elrich issued his executive order on October 5, when it took “full force and effect immediately.” Now here is an odd thing. According to the county’s MPIA response database, the county has answered 36 MPIA requests since October 5 as of this writing. This raises a number of questions. Do some county departments know of the executive order but not others? Or is there an interpretation of Elrich’s executive order that permits departments to decide whether to answer a request immediately or postpone it? Any disparate treatment of MPIA requests depending on their nature would be deeply troubling.

This screenshot of the county’s MPIA response database shows that it has continued to answer at least some requests since October 5.

Folks, I have been writing about state and county politics since 2006. I have used the MPIA countless times to obtain information of public interest, including information that would normally not be released by the authorities. The MPIA is among the most important tools available to residents to hold their government accountable. Indefinitely postponing answers to MPIA requests accomplishes nothing other than to allow county officials to behave as they will in the dead of night.

I respectfully ask the county council to summon representatives of the executive branch to justify this executive order in a public session.

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Jawando Ignored Public Information Act, Had Scant Evidence Before Filing Rent Control Bill

One may be the loneliest number, but apparently one documented claim of a rent increase was enough for Councilmember Will Jawando (D-At Large) to introduce rent control legislation that governs the entire county.

When he introduced his emergency rent control bill in response to the pandemic, I made repeated requests to Councilmember Jawando’s office for any evidence he had of rising rents that inspired him to file the bill.

I eventually received a public comment but not a scintilla of hard evidence, so I submitted a formal Maryland Public Information Act (MPIA) request on April 19 via his official email account: “Please consider this a request for any and all documents covered by the Public Information Act you have received related to rent increases during the pandemic. Thank you.”

Cecily Thorne, Jawando’s Chief of Staff, contacted me on April 21 after I wrote my initial post about the lack of evidence or logic “even from an amoral greed perspective” behind the rent control bill. She stated that “Councilmember Jawando asked me to forward some of the information we have been receiving from tenants related to rent increases” and included four redacted pieces of information.

Only one of these documents made a claim of a rent increase that was made both prior to the bill’s introduction and during the pandemic. (Another was notification given prior to the pandemic, while one involved late fees, not rent, and the last one was a somewhat complex situation sent after the bill’s introduction in any case.)

I spoke with Ms. Thorne shortly after receiving the information and told her directly of my MPIA request in the course of our discussion. Nonetheless, my request went completely ignored in violation of the law.

When I followed up on May 30 – after the mandatory 30-day disclosure deadline in state law had passed – Ms. Thorne remembered being made aware of a request (“You mentioned you made a request”), but also texted that “I have not seen one until now in writing” and “I did not receive a request formal from you” despite my having sent it to Councilmember Jawando’s official email and having mentioned it during our call.

The lack of response suggests that either (1) Councilmember Will Jawando’s office is highly disorganized, or (2) unaware of its legal responsibilities under the Public Information Act, or (3) willfully ignored the request in violation of the law. It could also be a combo platter.

Thanks to the efforts of Legislative Attorney Amanda Mihill, I received most, though not all, of the documents late last week. However, Jawando’s office excluded the unredacted copy of a previous document until I made mention that it was missing. Their response still excludes many documents attached to emails in violation of the law.

What’s Not in the Documents?

Despite Councilmember Jawando’s media claims, he had virtually no documentation that this was occurring before he decided to file the bill. Although Cecily Thorne stated that the emails she sent were only “some of the information,” the documents sent show otherwise. There was literally only the one claim mentioned above.

There are no copies of phone records listing people who called with complaints. Nor is there any evidence that the Councilmember’s staff contacted the landlord.

The only other evidence within the documents involves a few back and forth strategy emails with the Renters Alliance in which Councilmember Jawando says “as many examples as you can send will be helpful ahead of bill introduction.” The reply references only increases being seen in the same building as the sole complaint from a renter.

One case.

No wonder Councilmember Jawando was unresponsive to queries on this topic from not just myself but others despite the claims he made in the media.

Glass Bill Provides Meaningful Help

Fortunately, the Council took other action to address the larger problem, which is that many people who have lost their jobs, if only temporarily, cannot pay regardless of the level of rent.

The Council passed legislation introduced by Councilmember Evan Glass (D-At Large) that, among other provisions, appropriated an additional $2 million in rental assistance. This money helps people facing eviction directly. The county has also loosened the requirements to receive rental assistance in light of the ongoing crisis.

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Law Firm Client Requesting County Email Lists Identified

By Adam Pagnucco.

Earlier today, we published a piece noting that an associate with the law firm Sandler Reiff Lamb Rosenstein & Birkenstock, P.C. requested the county’s email lists.  The post contained an important error: the firm did in fact identify its client in its request letter to the county.   Law firm member Joseph E. Sandler wrote the following to us this morning:

Your piece in Seventh State regarding our law firm’s Public Information Act request for e-mail records, submitted to Montgomery County, is flat-out inaccurate.  County law requires that a lawyer submitting such a request on behalf of a client disclose the client—Empower Montgomery– and Ms. Krupke did so, in her letter, of copy of which is attached.  The County website did not list the client but Ms. Krupke’s letter did disclose it.  Apparently you didn’t bother to check the letter itself.  Please run an immediate retraction/correction.  Thanks for your prompt attention to this matter.

Sincerely,

Joe Sandler

When your author requested that Mr. Sandler cite the section of state or county law requiring attorney disclosure of clients when making Public Information Act (PIA) requests, he replied, “Our view is that we were required, by the rules of legal ethics, to disclose the client in these circumstances.  We do not believe it is required by state or county law.”

Sandler’s firm did in fact disclose the client in their PIA request.  The request itself did not appear on the county’s website.  We were wrong in implying that the firm intended to protect the identity of the client.  We reprint the request letter below.

Empower Montgomery, the client requesting the emails, is an advocacy group whose co-founders are real estate executives Charlie Nulsen and Chris Bruch, former health care executive David Blair and former County Council Member Steve Silverman.  Blair has been mentioned as a possible candidate for County Executive twice in the Washington Post.  Silverman was once the Director of the county’s Department of Economic Development and is now a registered lobbyist with both the county and the state.

We apologize to Mr. Sandler and his firm for implying in our original post that their Public Information Act request was intended to conceal the identity of their client.  That was clearly wrong.  Even so, the news that a rumored potential County Executive candidate and a registered lobbyist with business before the county are now in possession of the county’s email lists is interesting in and of itself.

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Law Firm That Has Represented Candidates Requests County Email Lists

By Adam Pagnucco.

Correction

The law firm in this post identified its client as Empower Montgomery.  Please read our follow-up and bear this in mind when reading further.

Original Post

After Westbard activist Robert Lipman requested electronic copies of the email lists possessed by the offices of the County Executive and the County Council, others including Robin Ficker and a supposed Nigerian prince requested them too.  But the most recent request for the emails is most interesting because it may protect the identity of the ultimate requester.

Jessica Krupke, an associate of Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., has filed a Public Information Act (PIA) request with the county asking for a “complete list of esubscription email addresses and paperless airplane email addresses.”  The county’s PIA website indicates that a response was posted on April 19 but it is not visible on opening.  Sandler Reiff is a law firm specializing in campaign finance and election law.  Why would they need more than 200,000 email addresses of county residents?

The PIA request on the county’s website.

It turns out that the firm, headed by former Democratic National Committee general counsel Joseph E. Sandler, has a long work history in Maryland.  Sandler has represented former Council Member Duchy Trachtenberg and her former aide, Dana Beyer, in the past.  State Board of Elections records show that Sandler Reiff has been paid by many campaign committees over the years, including those of former Governor Martin O’Malley, former Lieutenant Governor Anthony Brown, Baltimore Mayor Catherine Pugh, former Baltimore Mayor Stephanie Rawlings-Blake, State Senator Will Smith (D-20), Delegate Ben Kramer (D-19), Prince George’s County Council Member Deni Taveras, the Maryland Democratic Senate Caucus Committee, the Maryland House Democratic Caucus Committee and other committees associated with labor unions and gambling interests.  That may just scratch the surface of the firm’s relationships in Maryland.

Until now, while some candidates may covet the county’s email lists, the prospect of public condemnation has undoubtedly deterred at least a few of them from submitting PIA requests for the lists under their own names.  (The PIA requests themselves are public records and subject to disclosure.)  But if candidates can get a law firm like Sandler Reiff to obtain the emails on their behalf, they can dodge any scrutiny in obtaining the lists.

Pandora’s Box is now wide open.

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