Rules allowing state agencies to charge for public records received a surprising endorsement last month from the Wyoming Press Association, a traditional advocate for transparency that had previously opposed the fees.
The rules crafted by the Department of Administration & Information charge taxpayers for public employee time used to complete a public records request. Opponents — including the WPA — have argued the rules hurt transparency in Wyoming. Recently-retired WPA director Jim Angell testified before A&I in 2016 that fees could be used as an “obstacle in the way of someone searching for public documents.”
But WPA lobbyist Bob Bonnar told a legislative committee in Lander on May 22 that such rules make sense. The WPA is an association of 43 daily and weekly newspapers. WyoFile is an associate member of the organization.
“I think what A&I came up with last year is a pretty good start,” Bonnar told lawmakers on the Joint Corporations, Elections & Political Subdivisions Committee. The committee held a wide ranging discussion on Wyoming’s public records laws, that included testimony for and against the new rules.
Bonnar, who is the editor and publisher of the Newcastle News Letter Journal, told lawmakers he understood that producing electronic public records cost money. He compared his costs as a publisher to the costs incurred by state agencies compiling public records
“There is a cost to compiling, producing and distributing,” he said. “What [newspapers] do is distribute public records so when I hear that fees are unacceptable on the digital front … as a businessman we charge a dollar for our newspapers, we charge for the advertisements. There is probably something there.”
In an interview Friday, Bonnar said the Press Association has chosen to focus its lobbying efforts on pushing for increased publishing of public notices in newspapers for agency meetings and government expenditures. The notices are a revenue source for newspapers, but Bonnar also said they increase transparency and make government more accountable to citizens — particularly with its finances.
“I think that’s the urgent battle to fight right now,” he said. “I think public notices and transparency and Wyoming newspapers in particular have a very important role to play in controlling state spending.”
Bonnar’s views aligned with the organization’s, new WPA director Darcie Hoffland said.
Though Wyoming’s most prominent association for journalists has chosen to endorse the fees, others in the state’s media environment remained concerned. A Wyoming First Amendment attorney and the editor of the state’s largest newspaper both told WyoFile the rules would cause problems for Wyoming journalists and members of the public seeking information about their government.
“It’s just a detriment to the public access,” attorney Bruce Moats said. “You can’t say that it isn’t.”
Though it seems counterintuitive, the increasing prominence of electronic records has presented new challenges for transparency advocates. Physical records were always available for free review at agency offices, though fees may have been charged for copies. Now as records move online, agencies want to charge for taking them out of electronic databases and email inboxes and making them available for inspection.
State agencies can now charge for public records that surpass $180 to compile. The rules establish a fee schedule for producing electronic public records — for example, emails between public officials. Emails and other electronic records are often reviewed by legal staff to ensure anything that is not public record — such as confidential employee information or proprietary business data — is redacted.
It’s up to the agency to estimate the costs for producing the records, and the rules do not appear to create a process for appealing the price tag. If the estimate is more than $180, a payment must be made before the agency begins completing the requests.
The rules give government agencies a means of discouraging requests and obscuring information through fees, said Joshua Wolfson, editor of the Casper Star-Tribune.
“There’s an incentive for an agency that if they don’t want to compile the documents for a reason other than costs, to turn around and charge the requestor,” Wolfson said. “How do you dispute an estimate as an editor?”
“There’s obviously a chilling effect,” he said.
Bonnar also acknowledged that the new rules create potential for abuse. “At some point, someone is going to manipulate this,” he said. When they do, the WPA will consider involvement, he said.
“Transparency is always going to be at risk,” he said. “[Reporters and publishers] are always going to have to fight those fights.”
Still, he said, “we don’t go rattling on the door of the Supreme Court and the Wyoming Legislature every time one of us gets in a fight over those things.”
About-face for WPA
A&I wrote the new rules in response to Senate File 67, passed by the Wyoming Legislature in 2014. The bill was sponsored by the Legislature’s management council and covered various aspects of rulemaking under the title “Administrative rules-streamlining.”
Only the bill’s last paragraph deals with public records requests, directing A&I to adopt “uniform rules” for state agencies establishing “fees, costs and charges for inspection, copies and production of public records.” The bill does not dictate the rates A&I should charge for public records, whether some requestors should get waivers, which if any types of records should be exempted, or any of the other questions raised by objectors to the rule.
Those amounts were set by A&I through its rules-making process, which included taking public comment. At that time, then WPA director Angell argued strongly against the fees.
“I am writing today to express the WPA’s serious concern over the proposed rules for the inspection, copying and producing of public records,” Angell wrote to A&I in May 2016.
“We understand that A&I is responding to legislative mandate that appears to have been prompted by large public document requests,” he wrote. “However we feel the proposed solutions would place too heavy a burden on the average member of the public asking to look at a document that he or she, after all, owns.”
Although rules said the first $180 in fees would be waived, that limit would not be written in law but in agency rules, Angell wrote. “We believe it would be easy for future administrations to reduce or simply eliminate that threshold,” he said.
Indeed, the public comments show several government agency leaders think the $180 waiver is too high. High-level administrators from the Wyoming Board of Certified Public Accountants, the Department of Revenue, the Game and Fish Department, the Department of Agriculture, the Department of Corrections and the State Treasurer’s office all said the waiver should be reduced or simply eliminated.
Angell retired earlier this year. The WPA also saw changes in its board of directors.
Other opponents to A&I’s public records rules — namely environmental organizations — have asked that policy makers consider creating exemptions for requests made in the public interest, as opposed to those made for commercial reasons. Under federal law — the Freedom of Information Act — groups like media organizations, academic researchers and public-interest groups can apply for waivers from most records fees when making requests of federal agencies.
Bonnar told the lawmakers in Lander he opposed the inclusion of exemption categories for requests in the public interest.
“I’ve never been comfortable being classified as anything other than a member of the public,” he said. “Anything that I can get as a reporter I think anybody in my community should be able to get ahold of.”
In an email, WPA director Hoffland echoed that sentiment. “It would be unrealistic to expect the Legislature to determine which person requesting a public notice would be operating ‘in the public interest’ and draft language accordingly,” she wrote.
One commenter, Suzanne Lewis, who wrote to A&I in response to the proposed rule said she opposed the fees because she relied on the press to watchdog government for her.
“I rely on members of the press and other media outlets to keep me informed of news events and the workings of our government,” Lewis wrote. “I strenuously oppose any rule-making which would hinder their free access to public documents they deem necessary to obtain.”
Broad versus targeted requests
The specter of large records requests gumming up government was raised at the Lander meeting, where state employees and their representatives bemoaned an out-of-state request for spending records of more than 800 government entities.
“I personally, and the Wyoming Press Association, don’t feel like spending political capital and spending the political capital of the people we represent on out-of-state battles,” Bonnar said. “If it’s a legitimate battle and I and the board of the WPA feel there’s a legitimate fight to make, we’ll make it for the public interest and the people of Wyoming that read our papers.”
As such, reflexively fighting any efforts to charge for public records won’t be a priority for WPA, Bonnar said.
“It’s the group shoot that we’re not going to do anymore at least not while I’m the lobbyist for the Wyoming Press Association and while we have the board we have right now and they’re supporting me,” he said.
Good reporters don’t file massive records requests, Bonnar said, instead narrowing their requests by doing their job — speaking with sources, asking officials questions, etc.
“Reporters are supposed to dig not fish,” he said.
Still, Wolfson from the Casper Star-Tribune named at least one incident in which the newspaper had to file a sweeping records request to expose local government malfeasance.
The news staff had received a tip following a 2015 fire that escaped a landfill 20 hours after the Casper Fire Department responded to it, burning homes and killing livestock and pets. The tip suggested the fire chief had asked in an email that a fire inspector eliminate “bad parts” of a video from the fire. To find the email, the newspaper made several records requests and eventually received more than 1,000 emails, according to the resulting article.
“The documents, combined with hours of interviews, give the clearest picture yet of how firefighters responded to the fire at the landfill, which began one year ago Monday,” the 2016 article said. “They also suggest city officials may have been concerned the fire would spark legal action and took steps to limit discussion and review of what had taken place.
The fire chief told the newspaper his request for doctored evidence was made jokingly.
The newspaper paid the city to compile those records, Wolfson said, but smaller papers or individual members of the public might not have the resources to either pay or to hire an attorney to contest records fees.
In the face of such obstacles, records requestors may just give up. “It’s a bigger issue than journalists,” Wolfson said. “If I call my police officer because my neighbor is running his lawnmower at night,” Wolfson said, “he doesn’t drop me a bill after he comes over and checks it out.”
The month after Wolfson broke the fire-chief story, the Casper Star-Tribune’s editorial board weighed in against the new A&I rules. The new rules came after a “very large blanket public records requests” from Cindy Hill, a former superintendent of public instruction, the editorial said. The Legislature attempted to strip Hill of much of her power as an elected official in 2014, an episode that caused considerable bad blood between some Wyoming political factions.
Today, Wolfson is skeptical that large records requests are coming in at such volume that the new rules are warranted.
“And I think there’s other options you can take if [requestors] are acting in bad faith,” he said. “Most of the time people are more than willing to work things out. I have a hard time believing that [government] is grinding to a halt.”
Moats, the attorney, also cautioned against writing policy based on a few large requests alone, as it would affect more homegrown public records seekers as well.
“I don’t want to get into that if it’s a broad request it’s a bad request,” he said. “Sometimes those are necessary and useful.”
Better, more targeted rules could be written to allow an agency to manage or contest overly time-consuming records requests or charge for completing them, Moats said.
“If the real problem is these horror stories then let’s capture that at the top and leave the rest of it alone,” he said.
Wolfson said his paper would continue to pursue the public records it sees as necessary to inform the public. The paper can afford to pay for documents it needs, and if the fee structure seems abused, they’ll challenge the charges legally, he said. Comments from Bonnar indicated the WPA would support such an effort if need be.
But Wolfson worried about the general public.
“We’re going to fight for the documents we believe we should get,” he said. “I just believe the public documents are public documents and the [agencies] who possess them are custodians of those documents, they don’t own them.”