Lawmakers on Friday advanced a bill that would require state agencies to be more responsive to and accountable for public records requests, but declined for now to address associated fees.
The measure discussed by a subcommittee of the Joint Corporations Committee sets deadlines for agencies to fulfill requests, creates responsible parties in each agency and establishes means of recourse for when expectations go unmet.
The Corporations Committee began its review of public records laws in June, motivated in part by a conservative advocacy group’s difficulties securing state spending records. The review also coincided with the implementation of a controversial new rule allowing agencies to charge for completing some records requests and has taken on the broader question of if and how Wyoming public record law would evolve.
At a meeting of the five-member Public Records Working Group in Cheyenne on Friday, lawmakers focused on the government’s financial transparency and the timeliness of completing records requests. The group took no action on the rules written by the Department of Administration & Information that allow agencies to charge fees for completing records requests.
A series of agency officials testified in favor of the new fees rules and provided examples of burdensome requests they’d dealt with. None of the various public interest groups present — from conservation organizations to the small-government advocacy organization the Wyoming Liberty Group — mounted a forceful challenge to the fees.
The bill the working group decided to bring to the full Corporations Committee for sponsorship would create a 10-day time limit for producing the records, unless “good cause” exists to prevent meeting that deadline. Today, agencies have seven business days from receiving a records request to tell the requestor if records are available. But after that deadline, there is no time limit for the agency to complete a request.
The bill would also require state agencies and other public bodies to designate a staff person as a record custodian. The idea is to create a single point of contact between the agency and the record-requesting public and ensure requests don’t fall through the cracks.
Lawmakers also asked Legislative Service Office staffers to rewrite the bill before the Corporation Committee’s Nov. 26 meeting to include a clear chain of grievance a requester could follow if an agency wasn’t forthcoming with public records. Ultimately a requestor could have to turn to a district court, but lawmakers directed LSO to include possibilities to complain to the state’s Chief Information Officer or the Wyoming Attorney General before reaching that point.
The bill would also create sanctions for public employees who fail to comply with a records request, ranging from a fine of $750 to termination.
The lawmakers set aside, at least for now, two other bills on the subject. One would have made the public records act applicable only to Wyoming residents. Another would have created a state website where public records — which records was left undetermined — would be compiled for public viewing.
Records fees questioned
Government officials have said the records fees rules were created at the behest of the Legislature. Transparency advocates disagree, claiming state agencies went well beyond what lawmakers intended and largely ignored public comment to put their desired rules in place.
The legislative mandate at question came in 2014, when lawmakers passed Senate File 67. The wonkily named “Administrative rules-streamlining” bill was sponsored by the Legislature’s powerful Management Council.
The Senate Majority Floor Leader at the time, Phil Nicholas, introduced the bill to that chamber as part of an effort to streamline agency rules and make them friendlier to the public, according to an audio recording from the time. He did not mention public records.
The bill asked agencies to come up with rules for various aspects of state government, including contested case hearings and rule-making. The final paragraph of the bill contained a single sentence on public records:
“The Department of Administration and Information shall adopt uniform rules for the use of state agencies establishing procedures, fees, costs and charges for inspection, copies and production of public records.”
The rules A&I wrote established a new policy enabling all state agencies to charge the public for any records request that would cost $180 or more to fulfill.
The fees apply only to electronic records. The public can still enter agency offices and review records in person, where they’ll only be charged for making copies, officials maintain. Though the fee is designed to reimburse the state for staff time — charges are calculated using the pay rates of staffers involved — the money paid does not reimburse the agency whose staff time is used. The money is instead returned to Wyoming’s general fund, which lawmakers appropriate from when they write the state’s budget.
At the crux of officials’ justification for the fees is the requirement that all requests be reviewed by a staff attorney so that any confidential information can be removed before they’re made public.
On Friday, Senate Corporations Committee Chairman Cale Case (R-Lander) questioned various agency heads about the rules, including Todd Parfitt, the director of the Department of Environmental Quality. His agency fields a large number of requests, and that number has been increasing each year, Parfitt said.
Parfitt’s agency has 265 employees, he said. Case asked him how many employees could be working on public records request at that moment. Eight to 10, Parfitt answered. “But not full time,” he said.
“My whole point would be it’s not very big, out of 265,” Case said. Parfitt agreed.
Case also questioned officials on the reasoning behind charging for electronic public records but not for a review of physical copies.
“What if I said I want to come in and look at your emails?” he asked Joe Franken, an administrator at the DEQ. “I’ll just stand there and look at your emails.”
Franken said the rules apply only to producing electronic records, not paper ones. Parfitt said staff review paper records for confidential information as well, but would not charge the public for that time.
“It is kind of fascinating that an electronic record that might be accessible by a click we have to pay for,” Case responded. “Whereas when I come to your office and say ‘oh I want to look at that,’ and then you need to send people to spread it out at the table… that’s free.”
Broader discussion is fiscal, political
During an election season in which multiple candidates have included scrutiny of state spending in their platform, the Corporation Committee’s look at public records has joined a statewide conversation about transparency, particularly of the fiscal variety.
Conservative advocacy groups like the Liberty Group and “Foster’s Outriders” — a new group formed by gubernatorial hopeful Foster Friess after his primary loss — are demanding better access to government accounting to parse through spending. Their case has been buoyed by a lawsuit that two groups — Wyoming organization the Equality State Taxpayers Association and the national group American Transparency — have filed against the Wyoming State Auditor over records they’ve been pursuing for years.
Friess was an early large donor to American Transparency, according to a letter from the Jackson investor which was read to lawmakers by Parker Jackson, a former Friess campaign staffer.
In the most high-profile example of the records fees in action, the two groups paid nearly $8,000 for a year and a half’s worth of spending records from the auditor. They later sued when the agency failed to produce the records. The lawsuit is ongoing, Kevin Lewis with the Equality State Taxpayers Association told lawmakers.
Broad messages about increasing government transparency were also brought by representatives of the Wyoming Press Association, the Wyoming Outdoor Council, the Wyoming Liberty Group and the Powder River Basin Resource Council. There was little direct opposition to the fee rules, however.
Phoebe Stoner, executive director of the Equality State Policy Center, asked lawmakers not to lose sight of why the Wyoming Public Records Act exists.
“There are individual citizens of Wyoming out there who are trying to access records that are rightfully theirs,” she said. “We just hope that fees will never be a barrier to someone who has the public interest in mind.”
The state should adopt a fee waiver system like that in place under the federal Freedom of Information Act, said John Radar, an attorney with the Wyoming Outdoor Council. Under federal law, groups operating in the public interest — be they journalists, academic researchers or advocacy groups — can ask for production fees to be waived.
“Public-interest exceptions have been in place since 1986 and there’s a whole lot of case law,” Radar said. “We can apply that.”
Still, when it came time for the lawmakers to consider draft legislation, they punted the fee question. “Can we bow out for the [waiving] of fees?” Case asked the assembled public.
No one objected to Case’s question, and the lawmakers took no action on the fee rules.