When you contact the government, your communication is part of the public record

It was (gulp!) 15 years ago that I was covering corruption in Prince George’s County, Maryland as a reporter for The Washington Post. The scandal du jour was pretty remarkable. County Executive Jack Johnson (D) had been caught on an FBI wiretap telling his wife Leslie, an elected member of the County Council, to get rid of the evidence, which happened to be a lot of cash.

Here’s how the FBI put it in a press release about the bust:

“Just prior to his arrest on November 12, 2010, Jack Johnson and his wife Leslie Johnson exchanged a series of telephone calls. During one of those calls, as federal agents were knocking on the door of the Johnsons’ home to execute a search warrant, Jack told Leslie to destroy the $100,000 check provided to him by … [a local developer] and to hide cash that he had hidden in their home. Specifically, Jack Johnson told Leslie to flush the check down the toilet and hide the cash in her underwear. Federal agents entered the home and recovered approximately $79,600 from Leslie who had hidden the cash in her underwear.”On a recording released later, Johnson tells his wife to put money in her bra too.

The situation got very complicated very quickly. Leslie Johnson had just been elected to the County Council on November 2, a mere 10 days before the bust. But Maryland law at the time said that her arrest did not bar her from taking office.

She had to be convicted of a felony and sentenced before she could be forced to step down. And indeed she did take office. (A statewide referendum in 2012 changed the Maryland Constitution to suspend elected officials without pay and benefits upon a guilty plea – no need to wait for sentencing).

In June 2011 Leslie Johnson entered a guilty plea but still planned to stay in office. That meant she planned to collect nearly $28,000 in pre-tax salary and continue other benefits for the 3¹ / ₂ months that she hoped to stay on the Council. At the time, Council members were paid $96,417 and also collected pension credits.

So now there was a renewed public sense of outrage that Johnson would stay on the Council until October, nearly a year after her arrest.

So I asked for copies of the letters and emails the Council had received about Leslie Johnson, items that were clearly considered public records under Maryland’s public information act.

And this is where things got more complicated.

The Council had on staff a lawyer – who had previously worked in the Jack Johnson administration – who handled public records requests. Once a formal request is lodged with a public agency in Maryland, council or other public entity, the organization has 30 days to respond. This, by the way, is one of the longest response times in the entire United States. Even the notoriously slow federal government’s response time by law is 20 days; many states allow five to 10 days. Some, however, give vague guidance and say something along the lines of “as soon as practicable.” And unfortunately, in many states and the federal government, the response that is issued during the allotted time can be something like “we have your request and need more time to find what you are seeking.”

But it should not have to take a public records request for the kind of letters and emails I was seeking. They were flowing in quickly, from what I was hearing from several different people, and they were generally in favor of a quick exit for Leslie Johnson. And Council members were getting copies, or so I was told.

Photo by Jon Moore on Unsplash

Instead of getting the letters, I hit an information blockade. The lawyer said she had to check with each person who had written in to see if they were okay with members of the public getting copies of their letters or emails.

Nice idea, but not required by Maryland law or most other state’s public records laws.

Soon, my records request was essentially moot. Leslie Johnson’s fellow Council members stripped her of an office and staff, and she moved her resignation date to July 31. Bottom line, I did not get more than a handful of letters – and it took 30 days. The moment for the story, my editor thought, had come and gone.

The issue of releasing letters and comments from members of the public came up recently when the Montgomery County, Md. planning agency said it could not give out letters, emails and survey comments from the public without risking privacy concerns of commentators. The topic was a controversial plan to redo a small corridor where businesses and transit could get a refresh.

Here’s how it is supposed to work under Maryland’s public records laws and those of most other states: Any communication to the government from a member of the public – letter, email, response to a government survey – becomes part of the public record and the government can – and should disclose it. (If this communication goes to someone in the state legislature, unfortunately, disclosure is not often required, because most legislatures have conveniently exempted themselves from public records laws in most states. I will be tackling this issue in the near future).

Despite public records laws’ requirement that communications with a government agency are disclosable, government employees get all squirrely about these communications and often look for ways to hold them back. (And when lobbyists write in, that’s another controversy that I will tackle in a future Substack piece).

The squirrely move is what happened when the lawyer for the Prince George’s County Council said she had to contact the letter writers. A similar obstruction tactic was employed by the Montgomery County planning agency recently when Kevin Bromberg, as I recently wrote, tried to get copies of letters and survey responses about the corridor refresh and was told that it was impossible to redact identifying information, and therefore he could not have the letters, comments, and survey responses. And oh by the way, these responses, the agency said, did not have to be disclosed because they constituted “research” which the agency said could be withheld under Maryland law. Bromberg is challenging that assertion.

Here’s how state and local governments could and should handle these inquiries about public comments, letters, emails, and survey responses.

Make clear at the outset when the government is soliciting ideas from the public that there is a possibility that those emails, letters and survey responses could be released to the public. The government should then ask: If that happens, do you want us to redact (black out) your name and contact information? Or are you ok with attaching your name to the comments? The point is, the government has the ability to make this clear with boilerplate language, and allow people the opportunity to ask that identifying information be withheld. And tell people to sign their names at the bottom, and that the government is willing to black that out, along with their email address at the top. Simple, right?

And if the contact from the public is unsolicited – that is, someone is writing to a government agency seeking information or offering suggestions –when the governments lists the “How to contact us” item on the government website, clearly state that communications from the public may be subject to public release if someone asks for them.

Of course, if you are a big corporation like Amazon, you may get even more deference from the government about when and how to release information that involves you.

In Arlington, Va. where Amazon established its second headquarters after a secrecy-laden search across the United States, Amazon asked for, and got Arlington to notify the company when it received a public records request that might involve Amazon. Lots of public benefits to Amazon had been involved in the deal between Virginia and Amazon, and inquiring minds wanted to know if Amazon was holding up its end of the bargain, such as creating promised jobs. The advance notice – giving Amazon a chance to review the public records request and potentially oppose release of information -is in some way akin to what the Prince George’s County lawyer was doing when she sought to notify people who had written to the government about Leslie Johnson.

All of these situations involved public money or tax benefits, or both, the customary basis for releasing government information to the public. After all, the government is supposed to work for the people who are paying it, not the other way around.

Anyone out there have any experiences like this, either from the government side or the public side, or a company that has negotiated a deal that gives it notice of a public records request? I’d like to hear from you!

If you want to read more about state and local secrecy and the harm it inflicts on communities, my publisher The New Press is offering a 30 percent discount on my book Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back. You can order it here and use coupon code Backroom30.