Records quest for 800 Wyo. agencies drives open records review

Lawmakers are eyeing changes to public records law after a national group dedicated to government transparency flooded 800 Wyoming agencies with records requests last spring.

Openthebooks.com, a project of Illinois-based 501(c)(3) organization American Transparency, filed the requests to collect Wyoming data for an online repository of spending by state, local and federal governments. Its requests went to more than 800 agencies, districts, boards and other municipal and state government entities, Wyoming Liberty Group executive director Jonathan Downing said. His organization, a conservative think tank in Cheyenne, assisted Openthebooks.com with the requests.

The inquiry has sparked a review of public records law by the Legislature’s Joint Corporations, Elections & Political Subdivisions Committee, even as the state implements new rules to charge its citizenry for accessing public records.

Broad records requests gum up day-to-day operations for some government offices in the Equality State, particularly rural ones with only one full-time staff member, public officials told legislators on the Corporations Committee in Lander last week.

Some meeting attendees pointed to Openthebooks.com’s request in defense of the current rules that allow the government to charge for completing public records requests if they cost more than $180 to produce. But opponents of record request fees sought to separate the two issues, saying 2016 rules written by the Department of Administration and Information weren’t in the public’s interest and will hurt transparency.

The committee concluded by asking for testimony on the 2016 rules from A&I and from the Wyoming Attorney General’s office at its next meeting in September. The committee also passed a motion instructing Legislative Service Office attorneys to redraft a failed bill from the last legislative session that addresses how long agencies have for completing records requests. The bill could serve as a template for broader changes to record law, lawmakers said.

In a 2015 study on state government, the Center for Public Integrity ranked Wyoming dead last for access to public information. The state was ranked 49th for integrity of state government overall.

Broad requests slow agencies, officials say

Openthebooks.com’s requests focused on expenditures and salaries of government employees, Downing told lawmakers.

A year later, Openthebooks.com reports that only 12.5 percent of Wyoming government entities have responded to the requests, Downing said. “That was pretty dramatic,” he said.

Downing urged the committee to draft legislation to clearly define how long agencies have to complete a records request and the procedures agencies can use to deny a request. The bill lawmakers revived last week would have established a two-week deadline for compliance — no mandatory timeline exists currently. It died without consideration in the House of Representatives.

But a variety of officials from small government entities came to the committee meeting to testify that Openthebooks.com request was confusing to them and overwhelming to their small staffs.

Bobbie Frank with the Wyoming Association of Conservation Districts said Openthebooks.com requested employee salary information from the state’s conservation districts. Wyoming has 34 conservation districts, which are often staffed by only one or two part-time employees.

After its initial request, Openthebooks.com asked for the names and addresses of vendors along with the amounts of expenditures the conservation districts had made, Frank said.

“If you’ve got a 20-hour-a-week district employee who is managing emergency watershed protection and flood control projects and Clean Water Act projects and trying to do water quality monitoring…” Frank said. “Then they get [records] requests dumped on that, yea, it’s starting to be [burdensome].”

“I’d hate to see us spending taxpayer dollars doing only [records requests],” she said.

Frank would like to see the information that Openthebooks.com requested uploaded to an online database somewhere that is accessible to the public. Her agency didn’t have the staff to maintain such a database itself, but the state could do so, she suggested.

“It’s fair,” Frank said of Openthebooks.com’s request. “We’re not trying to hide anything. Our folks are responding, but I think they’re starting to get frustrated.”

Lawmakers said they would consider the idea of a central database as part of their review of records law.

SmartProcure is another organization that has filed broad requests with conservation districts, Frank said. Unlike Openthebooks.com, SmartProcure is a private corporation and a for-profit venture. It aggregates data to help businesses market their products and services to government entities, according to a profile from Bloomberg.

Charging for records contested

State agencies are beginning to 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 must be reviewed by legal staff to ensure anything that is not public record — such as confidential employee information or proprietary business data — is redacted.

The new fees would charge members of the public making the request $30 an hour for IT staff time, $15.50 an hour for clerical staff time, and $40 an hour for professional staff time — attorneys or administrators, for example.

The agency would estimate the total cost before compiling the records, and if the estimated total reaches $180, the requestor would have to pay the cost upfront. The rules do not appear to create a process for appealing the agency’s estimated costs.

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The new rules have already had a chilling effect on people and organizations that seek public records, said Shannon Anderson, an attorney with the Powder River Basin Resource Council and an opponent of the new rules.  Fees will make it prohibitive for a conservation organization like hers, that is funded by its members, to procure the records it needs to advocate for good government, she said.

At the Wyoming Department of Environmental Quality, she said, when a member of the public goes into agency offices to review public records an agency employee now looks over his or her shoulder.

Anderson asked lawmakers to consider creating fee-waiver categories for entities that operate in the public interest. The waivers would mimic those used by the federal government for requests made under the Freedom of Information Act, she said. Under federal law, groups like media organizations, academic researchers and public-interest groups can apply for waivers from most records fees.

“I think if you tweak the statute a little bit, sent some sunshine messages back to these agencies, the implementation might be a little bit better,” she said.

A&I wrote the new rule in response to law passed by the Wyoming Legislature in 2014.

“What DEQ staff have been telling advisory boards and the public is that the Legislature wants them to charge these fees and recoup these costs,” Anderson said last week.

But the Legislature’s directive was far from prescriptive. The bill, originally called Senate File 67, 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 use to charge a fee for public records, the threshold at which those fees should be imposed or whether some requestors should get waivers. Those decisions were made by A&I through the rule-making process.

The legislation was an about-fact from the law in force at the time, which prohibited charging fees to the public for inspecting public records.

The new rules went into effect in September 2016, but not every agency has implemented them. The Wyoming Department of Environmental Quality, where a citizen advisory board has thus far refused to vote in favor of the new rules, remains a hold-out.

In late April, DEQ officials and officials from the Wyoming Attorney General’s office failed to convince members of the Air Quality Advisory Board to approve the new rule. Though DEQ rules require various citizen advisory boards’ approval, officials told board members that in this case they had to comply — given the statewide nature of the new rules.

Board members bristled under the pressure and delayed a vote. A new meeting to complete the vote is still being planned, DEQ spokesperson Keith Guille told WyoFile this week.