Parked in a file in the Courthouse are ten (10) emails and eight (8) text messages that at least three of the Members of the Talbot County Council really, seriously, do not want you to see.
Who is that majority? I do not know. It is a secret.
Why do they not want you to see these ten emails and eight text messages? I do not know. That too is a secret, and we may never find out. What the Council has acknowledged (in its response to a Public Information Act (“PIA”) request) is that withholding these items is completely discretionary, completely the choice of three (or more) Council members.
Readers of this column will recall my claim that the Council violated Section 212(f) of our County Charter (“No business may be transacted…except in public session.”) when in February a majority (not unanimous) authorized Mr. Pack to send certain letters to the Legislature, and did so secretly, with no public notice or discussion. I raised that point to highlight a worrisome attitude on the Council regarding transparency and proper procedure, which are important issues.
(Curiously, just two weeks later the Council authorized similar letters on similar issues using normal procedures in a regular meeting. Why the different approach? Another mystery. The second round was problematic not procedurally, but only because the Council heard just one point of view from a particular special interest group before acting.)
Anyway, the Council could have responded to the accusation with something like this: “Sorry, that was on us. Just a procedural snafu or a matter of modest import; we were rushing to meet some Annapolis deadlines. We’re sensitive to these procedural issues and it won’t happen again.” End of kerfuffle. (The substance of the letters was not of great significance by the way, and soon became moot as the Legislature moved forward.)
The Council did not respond like that; in fact, no response was forthcoming at all. Instead came an instruction that any information would be produced only through a formal Public Information Act request, which was promptly filed. A few relevant documents were produced, but as previously reported, the County refused to make public ten emails and eight texts exchanged by the Members in the 24 hours before they voted (in secret) on authorizing the initial letters.
Under the PIA law, the County “may deny the right of inspection to certain records or parts of records, but only if disclosure would be contrary to the “public interest.” The PIA Manual says this about the public interest standard:
“Whether disclosure would be “contrary to the public interest” under these exceptions is in the custodian’s “sound discretion,” to be exercised “only after careful consideration is given to the public interest involved.” In making this determination, the custodian must carefully balance the possible consequences of disclosure against the public interest in favor of disclosure. If the custodian denies access under one of the discretionary exemptions, the custodian must provide “a brief explanation of why the denial is necessary.” [The custodian in our case is the County Attorney, who has advised he is acting as directed by the Council.]
The County failed to provide the explanation as to how disclosure would damage the public interest in its initial response to the PIA request, and has not responded to a follow up request to meet that requirement of the law. (The Council also declined a request to simply reconsider releasing the emails and texts, even in a redacted form showing the header: to whom, from whom, time and subject.)
Moreover, the Council went out of its way to expressly ask that two state bodies looking at aspects of this matter avoid commenting on anything to do with its decision to withhold these documents—or, for that matter, on the question of the Council’s violation of the Charter. (Complaints are currently outstanding with both the Open Meetings Compliance Board and the PIA Compliance Board, to be reported on at a later date. The Council is rigorously resisting both complaints, devoting considerable legal department time and raising numerous technical issues, including jurisdiction.)
In the final analysis, even after the involvement of the two Compliance Boards mentioned, the County Council still has the power to withhold whatever it wants to, without explanation; only through a lawsuit could disclosure be compelled.
I think we all just want to know why three or more members of the Council believe that disclosure of these emails and texts would so damage the public interest that that must be kept secret? And what do other members think? We’re not talking about the Pentagon Papers after all. My own guess is it’s all pretty insignificant, but politicians can get touchy when called to account.
Next Week: A report on the outstanding complaint under the Open Meetings Act …or perhaps an update on the requested refund of the County’s $616 charge for answering PIA request. Or maybe an examination of how these “discretionary decisions” are even getting made in the context of required County procedure. Stay tuned.
Dan Watson is the former chair of Bipartisan Coalition For New Council Leadership and has lived in Talbot County for the last twenty-five years.