Md. Code Regs. 36.01.02.01

Current through Register Vol. 51, No. 24, December 2, 2024

Section 36.01.02.01 - Public Information Act Requests

A. Scope. This regulation sets out procedures for filing and processing requests with the Agency for the inspection and copying of public records under the Public Information Act.

B. Policy. It is the policy of the Agency to facilitate access to the public records of the Agency, when access is allowed by law, by minimizing costs and time delays to applicants.

C. Definitions.

(1) In this regulation and in Regulation .02 of this chapter, the following terms have the meanings indicated.

(2) Terms Defined.

(a) "Act" means the Public Information Act, General Provisions Article, §§ 4-101 - 4-601, Annotated Code of Maryland.

(b) "Applicant" has the meaning stated in §4-101 of the Act.

(c) "Application" means a request for access under the Act for a public record of the Agency.

(d) "Board" has the meaning stated in §4-101 of the Act.

(e) "Copy" means any form of reproduction using a photocopying machine or other reproduction technology, including a paper copy, an electronic copy, a printout, or an image.

(f) "Custodian" means:

(i) The official custodian, as defined in General Provisions Article, § 4-101, Annotated Code of Maryland;

(ii) The Director;

(iii) The PIA Coordinator; or

(iv) Any other authorized individual who has physical custody and control of a public record of the Agency.

(g) "Indigent" has the meaning stated in §4-206 of the Act.

(h) "Metadata " has the meaning stated in §4-205 of the Act.

(i) "PIA Coordinator" means the Agency employee who is responsible for accepting requests for public records.

(j) "Public Access Ombudsman" means the official appointed, under Title 4, Subtitle 1B of the Act, to resolve disputes under the Act.

(k) "Public Record" has the meaning stated in §4-101 of the Act.

(I) "Reasonable fee " has the meaning stated in §4-206 of the Act.

D. Who May Request Public Record. Any person may request to inspect or copy public records of the Agency.

E. Necessity for Written Application.

(1) Except as otherwise provided in this regulation, an applicant that wishes to inspect a public record of the Agency shall submit a written application to the PIA Coordinator.

(2) An applicant need not submit a written application if:

(a) The applicant seeks to inspect a public record designated by the official custodian as available to any applicant immediately on request; or

(b) The PIA Coordinator waives the requirement for a written application.

F. Application to Inspect a Public Record.

(1) An application shall be addressed to:

(a) The PIA Coordinator; or

(b) If the PIA Coordinator is not known, the Director.

(2) An application shall:

(a) Reasonably identify, by brief description, the public record sought; and

(b) Provide an address or other means by which the custodian may respond to the applicant's request.

G. Response to Application.

(1) If the individual to whom the application is submitted is not an Agency custodian, within 10 work days after receiving the application the individual shall give the applicant:

(a) Notice of that fact; and

(b) If known, the name of the custodian and possible location of the public record.

(2) f the custodian decides to grant an application for inspection, the custodian shall produce the record for inspection:

(a) Notice of that fact; and

(b) Within a reasonable period, not to exceed 30 days from the date of the application if that period of time is needed to retrieve the public record and conduct any necessary review.

(3) If the custodian reasonably believes that it will take more than 10 work days to search for, retrieve, prepare, and produce the public record for inspection, the custodian shall indicate in writing or by electronic mail within 10 work days after receipt of the application:

(a) The amount of time that the custodian anticipates it will take to produce the public record;

(b) An estimate of the range of fees that may be charged to comply with the application for public records; and

(c) The reason why it will take more than 10 work days to produce the public record.

(4) If an applicant requests to inspect a public record and a custodian determines the record does not exist, the custodian shall notify the applicant of this determination:

(a) Immediately, if the custodian determines this on initial review of the application; or

(b) If the custodian determines this after a search for responsive records, promptly after the search is completed but not more than 30 days after receiving the application.

(5) If the custodian denies an application for inspection:

(a) The custodian shall do so within 30 days after the request; and

(b) Immediately notify the applicant of the denial.

(6) If an application is denied, the custodian shall provide the applicant, at the time of the denial or within 10 work days, a written statement that gives:

(a) The reason for the denial including, for records denied under §4-343 of the Act, a brief explanation of:

(i) Why denial is necessary; and

(ii) Why the harm from disclosure of the public record would be greater than the public interest in providing access to the information in the public record such that disclosure of the public record would be contrary to the public interest;

(b) The legal authority for the denial;

(c) Without disclosing the protected information, a brief description of the undisclosed records that will enable the applicant to assess the applicability of the legal authority for the denial; and

(d) Notice of the remedies available for review of the denial

(7) A time limit imposed by §G(2) and (3) of this regulation may be extended:

(a) With the consent of the applicant, for an additional period of up to 30 days; and

(b) For the period of time during which a dispute initiated by the applicant is pending before the Public Access Ombudsman.

(8) The Agency is not required to create a new record in response to an application.

H. Notice to and Consideration of Views of Person Potentially Affected by Disclosure.

(1) Unless prohibited by law, the custodian may provide notice of a request for inspection or copying of any public record of the Agency to any person who, in the judgment of the custodian, could be adversely affected by disclosure of that public record.

(2) The custodian may consider the views of the potentially affected person before deciding whether to disclose the public record to the applicant.

I. Electronic Records.

(1) Except as provided in § 1(3) and (4) of this regulation, the custodian shall provide an applicant with a copy of the public record in a searchable and analyzable electronic format if:

(a) The public record is in a searchable and analyzable electronic format;

(b) The applicant requests a copy of the public record in a searchable and analyzable electronic format; and

(c) The custodian is able to provide a copy of the public record, in whole or in part, in a searchable and analyzable electronic format that does not disclose information that is exempt from disclosure under the Act.

(2) The custodian shall provide a portion of the public record in a searchable and analyzable electronic format if:

(a) Requested by the applicant; and

(b) The custodian is able to do so by using the existing functions of the database or software program that contains the searchable an analyzable data.

(3) The custodian is not required to:

(a) Create or reconstruct a public record in an electronic format if the public record is not available in an electronic format; or

(b) Release an electronic record in a format that would jeopardize or compromise the security or integrity of the original record or any proprietary software in which the record is maintained.

(4) The custodian may remove metadata from an electronic document before providing the electronic record to an applicant by:

(a) Using a software program or function; or

(b) Converting the electronic record into a different searchable and analyzable format.

J. Review of Denial.

(1) If the custodian denies an application to inspect or copy a public record of the Agency, the applicant may, file an action for judicial enforcement under §4-362 of the Act without pursuing the remedies set forth in §J(2) and (3) of this regulation.

(2) If the custodian charges a fee of more than $350 under §L of this regulation, the applicant may, within 90 days after the date the fee is imposed, file a written complaint with the Board under General Provisions Article, § 4-1 A-05, Annotated Code of Maryland.

(3) The applicant and the custodian each may contact the Public Access Ombudsman to resolve, under General Provisions Article, Title 4, Subtitle 1B, Annotated Code of Maryland, a dispute relating to requests for public records.

K. Temporary Denial.

(1) If the act authorizes inspection of a public record but the custodian believes inspection would cause substantial injury to the public interest, the custodian may temporarily deny inspection.

(2) Within 10 work days after the denial, the custodian shall petition a circuit court to authorize continued denial of inspection.

(3) The petition shall be filed in:

(a) The circuit court for the county where the public record is located; or

(b) The Circuit Court for Baltimore City.

(4) The custodian's petition shall be served on the applicant as provided in the Maryland Rules.

L. Fees.

(1) The fee for a photocopy of a public record of the Agency is 25 cents per page.

(2) The fee for a certified true copy of a public record is an additional fee of $ 1 per page.

(3) There is no charge if the total fee for copies is $10 or less.

(4) Notwithstanding §L(1) of this regulation, if another law sets a fee for a copy, printout or photograph of a public record, that law applies.

(5) The custodian may charge for the cost of providing facilities for the reproduction of a public record if the custodian does not have the facilities.

(6) Before searching for, retrieving, reviewing, preparing, or copying a public record of the Agency, the custodian shall estimate the cost of reproduction and notify the applicant of the cost, and may:

(a) Obtain the agreement of the applicant to pay the cost; or

(b) Demand prepayment of the cost from the applicant.

(7) Search and Preparation Fee.

(a) Except as provided in §L(8) of this regulation, the Agency may charge a reasonable fee to:

(i) Search for and retrieve requested public records;

(ii) Review requested public records for potential disclosure; and

(iii) Prepare public records for inspection and copying.

(b) The custodian shall determine the fee by multiplying the staff's or attorney's salary, prorated to an hourly basis, by the actual time attributable to the search for, retrieval of, review of, and preparation of public records for inspection and copying.

(8) The custodian may not charge a fee for the first 2 hours spent searching for, retrieving, reviewing and preparing a public record for inspection.

(9) Waiver or Reduction of Fee.

(a) The custodian may waive or reduce any fee set under this regulation if the applicant requests a waiver, and:

(i) The custodian determines that the waiver or reduction is in the public interest; or

(ii) The applicant is indigent and submits an affidavit verifying the facts that support a claim of indigency.

(b) In determining whether a fee is in the public interest, the custodian shall consider, among other relevant factors, the ability of the applicant to pay the fee.

Md. Code Regs. 36.01.02.01

Regulation .01 amended effective 42:6 Md. R. 515, eff.3/30/2015; amended effective 43:5 Md. R. 387, eff.3/14/2016; amended effective 46:1 Md. R. 13, eff. 1/14/2019