After MSDE rejected my Public Information Act request for salary-related information, I filed a complaint with Maryland’s new Public Information Act ombudsman. As I expected, this was a waste of time, as she has no real power and the agencies know this and act accordingly. This correspondence illustrates how Maryland’s Public Information Act has become a joke when the public requests politically sensitive information that an agency doesn’t want to disclose.
From: ‘J.H. Snider’
Sent: Tuesday, May 2, 2017 5:53 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Cc: PIA.Ombuds <PIA.Ombuds@oag.state.md.us>
Subject: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Dear Ms. Kershner:
I am submitting a complaint to the Office of the Public Access Ombudsman regarding the Maryland State Department of Education’s response to my March 29, 2017 Public Information Act request, which was the culmination of a series of earlier Public Information Act requests to MSDE. The Public Information Act request sought three sets of documents, of which the primary one was the data fields MSDE collects on K12 public school employees. I requested all the data fields in the employee records it collects, excluding those that are exempt from disclosure under the Public Information Act.
MSDE responded by refusing to provide most of the requested fields, including the various salary fields, citing the Public Information Act Manual, §4-333—Licensing Records.
Please assess MSDE’s claims regarding data fields exempt from the Public Information Act. For example, I believe that PIA §4-333 does not in fact cover disclosure of K12 public school staff salary fields and many other related data fields essential for doing salary analysis, including FTEs (essential for calculating weighted salary statistics), dates (essential for measuring the effectiveness of compensation incentives related to deferred compensation), and subjects (essential for measuring the effectiveness of compensation incentives related to hard-to-fill positions).
I am providing you with a link to a web page with supporting backup information, including:
- The relevant Public Information Act correspondence with MSDE. I’ve also copied and pasted this information below.
- A table with a) a list of all the data fields in MSDE’s employee record system, b) MSDE’s response to each of the requested fields, and c) the page in MSDE’s Staff Reporting System Specifications and Procedures Manual–2013-2014 that describes each field. The fields the PIO provided no data for are marked “N.” I’ve also copied and pasted this information below.
In addition to my primary Public Information Act request for the data fields, I made two secondary requests.
First, a request that MSDE provide any advice Maryland’s Attorney General has provided to it concerning which employee data fields are exempt from the Public Information Act. MSDE provided no such document or acknowledgment of my request. Moreover, it cited a section of the Public Information Act Manual, §4-333—Licensing Records, that it claimed justified it in treating salary data as exempt from disclosure while ignoring the clear and precise citations in the same Manual stating that Maryland’s Office of Attorney General had ruled otherwise on the salary field question.
Second, a request for a clear definition of the salary field. MSDE has previously provided me with a definition of salary, but it was so vague as to essentially leave the definition in the hands of local school districts (called LEAs). For example, my reading of MSDE’s claimed definition is that LEAs are granted the option of deciding which pay codes, FTEs, work-years, and other parameters to include in its definitions of salary and average salary. It is hard for me to imagine that MSDE hasn’t at some point discussed and issued an opinion about how much leeway to grant LEAs in defining salary and average salary. Of course, I don’t know what I don’t know, so it is possible that MSDE has been as careless in defining such a core term as it implicitly claims. The definition of salary provided in the manual (p. 17) is as follows: “Report the portion of the annual salary for each part of the position to the nearest dollar. For staff who have multiple records (one Type I and one or more Type II records), the parts of the salary must add up to the total salary.” The entire definition of average salary MSDE provided to me in the form of advice to LEAs is completely contained within the following sentence: ““Please do not include fringe benefits, bonuses, etc.” (discussed in my December 8, 2016 correspondence with MSDE). Note in the data table that Record Type was an excluded data field.
Compensation typically covers more than 80% of local K12 public school budgets in Maryland. Clarity about what data citizens and taxpayers are legally entitled to know about those expenditures is of the utmost importance. On the one hand are concerns about privacy. On the other hand is the widespread recognition that transparency is the foundation of democratic accountability. Nor is it enough for democratic accountability if salary data per se is made public, as salary data per se is largely meaningless without accompanying fields, such as FTEs, dates, and subjects, that public officials, the press, and the public rely on for doing salary analyses.
Without clarity about what data fields relating to compensation are exempt under the Maryland Public Information Act, Maryland government officials’ current practice of making arbitrary and capricious decisions about what fields to disclose will persist (e.g., see Snider, J.H., Maryland should be truthful in reporting teacher pay, Washington Post, February 17, 2017 and my January 24, 2017 testimony presented to the Maryland State Department of Education’s Board of Education). The presumption, in keeping with the spirit of the Public Information Act, should be openness unless there is a clear and precise law stating otherwise.
Sincerely,
J.H. Snider, President
iSolon.org
Data Fields MSDE Claims are Exempt from Disclosure under the Public Information Act
| Data Field | Provided by MSDE?* | Page Number** |
| Record Type | N | 9 |
| LEA | Y | 9 |
| School Number | N | 9 |
| Unique Statewide Identifier | N | 9 |
| Local Employee Number | N | 9 |
| Last Name | Y | 9 |
| First Name | Y | 9 |
| Middle Name | N | 9 |
| Generational Suffix | N | 9 |
| BC-Maiden Last Name | N | 10 |
| Birth Date | N | 10 |
| Gender | N | 10 |
| Hispanic/Latino Ethnicity | N | 10 |
| Race Code | N | 10 |
| Social Security Number | N | 10 |
| Degree | Y | 10 |
| Years of Experience | Y | 11 |
| Tenure Status | N | 11 |
| Employment Date | N | 12 |
| Most Recent Date of LEA Separation | N | 12 |
| Cause of Separation | N | 12 |
| Contract Months | N | 13 |
| Full-Time Equivalency | N | 13 |
| Previous Year of Employment | N | 13 |
| Where Employed | S? | 13 |
| State Residence | N | 14 |
| Type of Experience | S? | 14 |
| Location | Y | 14 |
| Budget | N | 15 |
| Position | Y | 16 |
| Salary | N | 17 |
| Subject X (With X = 1 to 6, treated as separate fields) | N | 17 |
| Targeted Assistance School (TAS) Staff FTE | N | 18 |
| Title I Paraprofessional | N | 18 |
| Title I Qualified Paraprofessional | N | 19 |
| School Assign X (With X = 0 to 9, treated as separate fields) | N | *** |
| Location Assign X (With X = 0 to 9, treated as separate fields) | N | *** |
| Budget Assign X (With X = 0 to 9, treated as separate fields) | N | *** |
| Position Assign X (With X = 0 to 9, treated as separate fields) | N | *** |
| Salary Assign X (With X = 0 to 9, treated as separate fields) | N | *** |
| FTE Assign X (With X = 0 to 9, treated as separate fields) | N | *** |
* MSDE’s claim that a given data field is disclosable under the Public Information Act: Y=Yes, N=No, S?=Selectively disclosable? The claim is an implicit claim based on data fields for which MSDE provided data. Some data fields (marked S?) had highly selective disclosure. The most obvious explanation for this type of disclosure is that MSDE only selectively enters data for certain fields.
“** As described in Staff Reporting System Specifications and Procedures Manual–2013-2014, Maryland State Department of Education, June 2013.
*** Data fields not described in ** above but included in the employee record system.
Public Information Act correspondence with MSDE
From: ‘J.H. Snider’
Sent: Wednesday, April 26, 2017 11:31 AM
To: ‘William Reinhard -MSDE-‘ <william.reinhard@maryland.gov>
Cc: ‘samantha.foley1@maryland.gov’ <samantha.foley1@maryland.gov>
Subject: RE: Public Information Act request
Dear Mr. Reinhard:
Thank you for the USB stick with a fraction of the public information I requested. You claim in your accompanying printed letter that the “Salary information for teachers collected by MSDE is considered licensee information,” by which you presumably meant it is exempt under the Public Information Act. Please cite the specific exemption for salary data. Under Maryland law, raw salary data is public information; that is, not exempt under the Public Information Act.
I recognize that salary information is considered very politically sensitive information in Maryland. But politically sensitive does not mean secret. When I asked for salary data from my LEA, its leadership was furious and complained to Maryland General Assembly members that they shouldn’t be obliged to provide this information under the Public Information Act. General Assembly members were unresponsive to this complaint. The LEA’s leadership also sent an email to thousands of its employees, mentioning me by name and complaining that I had requested this information. But even then, the LEA’s leadership made no assertion that under Maryland law the public wasn’t entitled to see individual-level salary data.
In MSDE’s case, access to this individual-level data is especially important because of MSDE’s track record of publishing methodologically ambiguous, error prone, and unaudited salary statistical data that is widely reported as authoritative and a foundation for public deliberation over the approximately 80% of school budgets allocated to employee compensation.
Since there was no mention that you would withhold salary data until this belated response to my Public Information Act request, it is especially surprising to hear MSDE make this claim now.
If I understand your legal theory correctly, the salaries of licensed teachers would be exempt from disclosure but not the countless other LEA employees, such as custodians, long-term substitutes, coaches, cafeteria workers, and administrative secretaries, whose occupations aren’t licensed. Most county and state employees also would be exempt, as they, too, aren’t licensed.
In short, Public Information Act provision § 4-333 is not relevant to the salary disclosure question. The relevant opinion of Maryland’s Attorney General, as included in Maryland Public Information Act Manual (page I-5), is:
The term “public record” explicitly encompasses the salaries paid to public employees, including bonuses and performance awards. GP § 4-101(j)(2); Moberly v. He rboldsheimer , 276 Md. 211 (1975); Opinion of the Attorney General No. 81-034 (Nov. 23, 1981) (unpublished); 83 Opinions of the Attorney General 192 (1998).
The Public Information Act Manual (Appendix E-8) also includes this definition of a “public record”:
(2) “Public record” includes a document that lists the salary of an employee of a unit or an instrumentality of the State or of a political subdivision.
If you believe that the Maryland AG’s legal opinion is incorrect, please provide an exact citation to the legal authority on which you rely. I am copying below the entire section of the Public Information Act provision § 4-333 that you cited for your exemption claim and which makes no mention of salary data. As a matter of both common sense and legal precedent, it should be clear that disclosures appropriate for, say, licensed cosmetologists and landscape designers, would be less rigorous than those for government employees.
4-333. LICENSING RECORDS.
(a) Subject to subsections (b) through (d) of this section, a custodian shall deny inspection of the part of a public record that contains information about the licensing of an individual in an occupation or a profession.
(b) A custodian shall allow inspection of the part of a public record that gives:
(1) the name of the licensee;
(2) the business address of the licensee or, if the business address is not available, the home address of the licensee after the custodian redacts any information that identifies the location as the home address of an individual with a disability as defined in § 20-701 of the State Government Article;
(3) the business telephone number of the licensee;
(4) the educational and occupational background of the licensee;
(5) the professional qualifications of the licensee;
(6) any orders and findings that result from formal disciplinary actions; and
(7) any evidence that has been provided to the custodian to meet the requirements of a statute as to financial responsibility.
(c) A custodian may allow inspection of other information about a licensee if:
(1) the custodian finds a compelling public purpose; and
(2) the rules or regulations of the official custodian allow the inspection.
(d) Except as otherwise provided by this section or other law, a custodian shall allow inspection by the person in interest.
(e) A custodian who sells lists of licensees shall omit from the lists the name of any licensee, on written request of the licensee.
Please note, too, that in my Public Information Act request I requested all employee record data specified in MSDE’s Staff Reporting System Specifications and Procedures Manual that wasn’t exempt under the Public Information Act. Specifically, I specified: “The data fields for confidential information should be included in the header but left blank for the individual employee data records.” In your response, you did include the header field labels. But it is hard for me to imagine that not only the salary data fields but many of the other data fields, such as those relating to FTE status, are also legally exempt. Again, if you claim otherwise, please provide the specific legal citation justifying the exemption.
It is already long past the 30-day limit specified under the Public Information Act for fulfilling my Public Information Act request. I’d welcome your prioritizing the fulfillment of my overdue Public Information Act request.
Sincerely,
J.H. Snider, President
iSolon.org
From: William Reinhard -MSDE- [mailto:william.reinhard@maryland.gov]
Sent: Thursday, April 20, 2017 12:13 PM
To: ‘J.H. Snider’
Subject: Follow-up on your PIA
Good Afternoon Mr. Snider-
We’ve completed work on your most recent PIA. The data files are too large to send via email, so we’ve moved them onto a flash drive. Please let me know the best physical address to send this to.
Bill Reinhard
From: J.H. Snider
Sent: Wednesday, April 12, 2017 3:44 PM
To: ‘William Reinhard -MSDE-‘ <william.reinhard@maryland.gov>
Cc: ‘samantha.foley1@maryland.gov’ <samantha.foley1@maryland.gov>
Subject: RE: Public Information Act request
Dear Mr. Reinhard:
Please update me on your plans for fulfilling my March 29, 2017 Public Information Act request (copied below). Maryland’s Public Information Act specifies a ten-day reply period. If you don’t intend to respond to my request, it would be a courtesy and possibly save you time, too, to tell me so. Meanwhile, I will look forward to your fulfillment of my request within the thirty-day period required by law.
Sincerely,
J.H. Snider, President
iSolon.org
From: PIA.Ombuds [mailto:PIA.Ombuds@oag.state.md.us]
Sent: Wednesday, May 03, 2017 9:25 AM
To: ‘J.H. Snider’
Subject: RE: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Mr. Snyder,
Thank you for your request that the Office of the Public Access Ombudsman assist in resolving a dispute under the Public Information Act. We understand that you are seeking more information about the data on salaries that was not provided by the MD Dept. of Education (MDE). I understand that you have spoken with the Ombudsman regarding this issue and we have received the copies of your request and the agencies response.
With that information, I believe that we will have the documents we need to begin the process. The Ombudsman will review the documents, and will likely touch base with you next week before contacting MDE to ensure that both of you agree to participate in the mediation process.
I wanted emphasize that the Ombuds does not have enforcement authority, her role is to facilitate the resolution of PIA disputes between requestors and governmental agencies subject to the PIA on a voluntary basis.
Again, thank you for contacting the Ombudsman, and feel free to call or email me if you have any questions concerning the above.
Janice Clark
Administrative Officer
Office of the Attorney General
Public Access Unit
410-576-7033
From: ‘J.H. Snider’
Sent: Friday, May 12, 2017 2:01 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Cc: PIA.Ombuds <PIA.Ombuds@oag.state.md.us>
Subject: RE: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Dear Ms. Kershner:
When we briefly spoke, you hoped to get back to me by the end of this week. Please let me know your current tentative timeline for investigating this complaint.
Thank you for helping the citizens of Maryland resolve which government employee data fields gathered by the Maryland State Department of Education are exempt from public disclosure under the Maryland Public Information Act.
Sincerely,
J.H. Snider, President
iSolon.org
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Friday, May 12, 2017 2:42 PM
To: ‘J.H. Snider’
Subject: RE: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Mr. Snider,
I’m sorry I was not able to get to your matter this week. In addition to some planned meetings and other commitments that took me out of the office, a family medical matter that came up has put me behind a bit more than expected.
I’ll do my best to get through the materials you sent sufficiently to at least have a follow-up conversation with you sometime next week.
Thanks for getting in much with me about your PIA matter.
Sincerely,
Lisa Kershner
From: ‘J.H. Snider’
Sent: Friday, May 19, 2017 9:51 AM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Cc: PIA.Ombuds <PIA.Ombuds@oag.state.md.us>
Subject: RE: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Dear Ms. Kershner
Please let me know your updated tentative timeline for investigating this complaint.
Sincerely,
J.H. Snider, President
iSolon.org
From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Friday, May 19, 2017 10:54:17 AM
To: J.H. Snider
Subject: RE: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Jim,
I just tried to reach you by phone and left a v/m at 202-540—0505.
I’m planning to initiate the discussion w/MSDE via Bill Reinhard who responded to your request, though I’m expecting that it will be necessary to involve Bill Fields, Assistant Attorney General assigned to MSDE, given the assertion of exemptions.
I would like to touch base with you before speaking with the Bills, and am in today and available until about 3:00. I’m also in and available next week.
Thanks for checking in,
Lisa Kershner
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Thursday, May 25, 2017 4:28 PM
To: ‘J.H. Snider’
Subject: Follow-Up – Your PIA Request to MSDE
Jim,
This is to let you know that I called and emailed Bill Fields, the Assistant Attorney General assigned to MSDE, this week, but so far have not connected with him.
If he doesn’t contact me first, I’ll renew these efforts next week and keep you posted.
I recall you said you might call me tomorrow, and so, I wanted to let you know I’m out of the office tomorrow, but am in and available next week.
Sincerely,
Lisa A. Kershner
Public Access Ombudsman
200 St. Paul Place
Baltimore, MD. 21202
Phone: 410-576-7037
Email: lkershner@oag.state.md.us Lisa A. Kershner
From: ‘J.H. Snider’
Sent: Thursday, May 25, 2017 5:15 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: Follow-Up – Your PIA Request to MSDE
Thank you for the update. If I don’t hear back from you with a response from Bill Fields, I’ll follow up with a call to you midweek next week.
–Jim
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Thursday, May 25, 2017 5:27 PM
To: ‘J.H. Snider’
Subject: RE: Follow-Up – Your PIA Request to MSDE
Sounds good.
From: ‘J.H. Snider’
Sent: Monday, June 05, 2017 12:14 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: Follow-Up – Your PIA Request to MSDE
Thank you for returning my calls from last week and letting me know that you’ve set up a call with Bill Fields for this coming Thursday at 1:00 pm. I’ll look forward to hearing your report on the outcome of that call. I hope you’ll get a tentative action plan from Mr. Fields concerning if and when he proposes to provide a field by field breakdown as to which employee compensation fields he contends are public vs. exempt from public disclosure under Maryland’s Public Information Act, along with a legal citation for each claimed exempt field.
Please remember that I’ve been trying to gather the data necessary to understand MSDE’s salary statistics since last fall, although the specific Public Information Act request that led to my complaint to you on May 2 is from March 29–only several months ago.
Sincerely,
–Jim
From: ‘J.H. Snider’
Sent: Friday, June 9, 2017 12:56 AM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Cc: PIA.Ombuds <PIA.Ombuds@oag.state.md.us>
Subject: RE: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Dear Ms. Kershner:
It was good to chat with you this afternoon and learn of Chief Counsel Adam Snyder’s version of the licensing exemption theory presented on behalf of MSDE’s Bill Fields and William Reinhard. I am now summarizing the questions I hoped you would raise with Mr. Snyder regarding his justification of MSDE’s licensing theory:
- During the first four months of my asking for salary related data from MSDE, the licensing exemption theory did not come up and was not included on any MSDE website or document I was pointed to.
- The document provided to LEAs to get them to provide MSDE with the salary related data is called Staff Reporting System Specifications and Procedures Manual (this document is posted on my website, K12Transparency.info, because MSDE, despite repeated requests from me, failed to provide me with an online link to it). It makes no mention of the licensing theory. Moreover, in its introduction, it explains to the LEAs the reasons it is asking them to fill it out with the following list of purposes:
- monitoring compliance with federal and state laws;
- responding to federal reporting requests;
- responding to state legislative and State Board of Education data requests;
- producing annual statewide staff reports;
- providing information to local education agencies and the public;
- determining funding allocations by the state and school systems; and
- providing information for designing research and staff development plans.I applaud MSDE’s post hoc inventiveness in rationalizing its Public Information Act claims using its licensing theory.
- In its Staff Reporting System Specifications and Procedures Manual, MSDE further justifies its demand that LEAs provide the salary related data by citing the following code: Sections 2-205 and 5-109 of the Education Article of the Annotated Code of Maryland. I saw nothing in these two sections that explicitly justified MSDE’s licensing theory, but I did find abundant information to justify other theories based on a strict and common sense textualist reading of the two sections.
- Maryland State’s Division of Occupational and Professional Licensing reports that Maryland has 21 licensing boards, commission and programs appointed by the governor. MSDE is not included among those state entities, although I would not dispute that it has an important licensing function.
- Of those 21 licensing entities that regulate non-government workers for hundreds of different licensed occupations ranging from cosmetology to cemetary oversight, I am not aware of a single one that collects the type of detailed salary-related data collected by MSDE. Nor am I aware of one that publishes the type of salary related data published by MSDE and widely publicized in public forums.
- No one disputes that government workers’ salary and related information is public information under the Public Information Act. I’d suggest that if something looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck and should generally be treated like a duck under conventional legal norms. Nor, apparently, is there any dispute that under the Public Information Act an LEA must provide the same information that MSDE claims it doesn’t need to provide when the same information is provided directly to it and which it then compiles across all LEAs and uses in its published statistical reports on a wide variety of subjects having nothing either directly or explicitly to do with licensing. The primary material difference between the LEA and MSDE Public Information Act requests for the same information is the incredible cost and hassle of seeking this information from LEAs and the LEAs’ ease and cost-free track record of intimidating local citizens who request this information. Here I can point you to two of my Washington Post op-eds, Maryland’s fake open government and Maryland should be truthful in reporting teacher pay, as well as my testimony before MSDE’s Board of Education on January 24, 2017.
Again, if MSDE insists on withholding its salary-related information from the public using its licensing theory, please ask that it provide a clear and precise justification of its extraordinary, non-intuitive, and post hoc rationalization. Regardless of the above, I expect MSDE to respond to the second request—for clear field definitions—in my Public Information Act request. For your convenience, I’ll repeat that request here:
Second, a request for a clear definition of the salary field. MSDE has previously provided me with a definition of salary, but it was so vague as to essentially leave the definition in the hands of local school districts (called LEAs). For example, my reading of MSDE’s claimed definition is that LEAs are granted the option of deciding which pay codes, FTEs, work-years, and other parameters to include in its definitions of salary and average salary. It is hard for me to imagine that MSDE hasn’t at some point discussed and issued an opinion about how much leeway to grant LEAs in defining salary and average salary. Of course, I don’t know what I don’t know, so it is possible that MSDE has been as careless in defining such a core term as it implicitly claims. The definition of salary provided in the manual (p. 17) is as follows: “Report the portion of the annual salary for each part of the position to the nearest dollar. For staff who have multiple records (one Type I and one or more Type II records), the parts of the salary must add up to the total salary.” The entire definition of average salary MSDE provided to me in the form of advice to LEAs is completely contained within the following sentence: ““Please do not include fringe benefits, bonuses, etc.” (discussed in my December 8, 2016 correspondence with MSDE). Note in the data table that Record Type was an excluded data field.
I look forward to your update after you’ve spoken again to Mr. Snyder.
Sincerely,
J.H. Snider, President
iSolon.org
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Friday, June 09, 2017 8:42 AM
To: ‘J.H. Snider ‘
Subject: RE: Complaint regarding the Maryland State Department of Education’s Compliance with the Maryland Public Information Act
Thanks for the follow up thoughts Jim. I may cut and paste from this in communicating with Bill Fields. Meanwhile, a few clarification, in light of your note below: 1) Bill Field merely said that he had conferred with Principal Counsel to MSDE, and that one or both of them likewise conferred with Adam Snider, Chief of the Opinions Section of the OAG regarding MSDE’s assertion of the licensing exemption in response to your request; 2) I will be in touch with Bill Fields in follow-up of my conversation with him yesterday, but have no present plan to bring Adam Snyder into the mediation process.
It may turn out that Bill will choose to revisit relevant questions with Principal Counsel and/or Adam Snyder, and if it seems likely to move the ball forward, I may suggest to Bill that we bring PC or AS into the conversation. I have no intention of doing so at this juncture, and have not formed any judgment as to whether doing so at a later point is likely to be helpful. It remains a tool in the toolkit and a possible option for consideration and discussion.
I’m not trying to split hairs with you, but given the importance of clarity in this process, I did want to clarify these points so there is no confusion or misunderstanding at a later juncture.
Thanks again for taking the time to speak with me, and for your follow-up below.
From: William Reinhard -MSDE- [mailto:william.reinhard@maryland.gov]
Sent: Tuesday, June 27, 2017 5:24 PM
To: ‘J.H. Snider’
Subject: Addendum to MSDE’s PIA Response
Dear Mr. Snider:
This letter is an addendum to our April 23, 2017 response for your PIA request for certain records held by the Maryland State Department of Education (MSDE).
In that response, we responded to your request with some of the information in our custody, identified items for which we do not keep records, and withheld certain information. We withheld some information of licensees and all privileged information.
Under Gen. Prov. § 4-333(a), a custodian of licensee information is barred from releasing that information unless specifically allowed by law to be released.
Under Gen. Prov. § 4-333(b), the licensing information that must be released is the licensee’s name, business address, business telephone, educational background, occupational background, professional qualifications, orders and findings from formal disciplinary actions, and information provided to meet the requirements of a statute as to financial responsibility. The information we withheld did not fall within any of these categories.
Under Gen. Prov. § 4-333(c), a custodian may release information if the custodian finds a compelling public purpose and the custodian’s regulations allow the release. The MSDE has no such regulations for teacher licensing information.
Under Gen. Prov. § 4-333(d), a custodian must release the information to a ‘person in interest,’ which is defined in part under § 4-101(e) as a person that is the subject of a public record. You have not identified yourself as a person in interest as that term is defined, and the MSDE has no information to suggest that you are a person in interest.
Some of the information you requested included home phone numbers and home addresses of government employees. This information was not provided were not provided pursuant to Gen. Prov. §§ 4-312 and 4-331. Social Security Numbers are also included in these records; these were withheld pursuant to Md. Rule 1-332.1.
Under Gen. Prov. § 4-301, a custodian shall not release information that is privileged. You requested advice given by the Office of the Attorney General to the MSDE. This is privileged and therefore can not be released.
This letter constitutes a required partial denial of your PIA request. You may seek judicial review of this decision under Gen. Prov. § 4-362. You also may file a complaint with the Public Access Ombudsman by e-mail at lkershner@oag.state.md.us, by phone at (410) 576-7037, or by mail at the Office of the Maryland Attorney General, 200 St. Paul Place, Baltimore, Maryland 21202.
Sincerely,
William Reinhard
Bill Reinhard
Director of Communications
Maryland State Dept. of Education
200 W. Baltimore Street
Baltimore, Maryland 21201
william.reinhard@maryland.gov
410-767-0486 (office)
410-241-7108 (cell)
Follow MSDE on Twitter @MdPublicSchools and join us on Facebook at MdPublicSchools
From: ‘J.H. Snider’
Sent: Tuesday, June 27, 2017 7:44 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: In this email from MSDE’s chief PIO officer, MSDE appears to be choosing to both reject and ignore my Public Information Act complaint filed via your office
Hi Lisa:
MSDE’s chief PIO officer, after consultations with MSDE’s Bill Fields and the AG’s Adam Snyder, appears to be choosing to both reject and ignore my Public Information Act complaint filed via your office (see email below). In classic Maryland PIO fashion regarding public access to politically sensitive information, MSDE has also fabricated straw man arguments so as to provide political cover to public officials and confuse any casual observer as to what I actually requested and why MSDE refused to respond to that reasonable request, including a field-by-field justification why certain salary and salary-related data are being claimed to be exempt from public disclosure.
I’m assuming here that this response is MSDE’s final response to the complaint I filed via your office. If so, it is also odd that the PIO officer doesn’t reference my complaint filed via your office and your various conversations and written correspondence with MSDE staff and legal counsel. It’s as if your office is dismissed as utterly irrelevant to the fulfillment of both the spirit and letter of Maryland’s Public Information Act. That would be a bizarre outcome, as it would imply that the law’s intent was to require a PIO officer who denies a request to alert the denied requester in writing of the existence of your office. But then, the PIO officer is allowed to totally ignore any request from your office–as though your office didn’t even exist–for reasonable clarifying information regarding the grounds of the PIO officer’s denial.
Please let me know if this is also your reading of MSDE’s response to the complaint I filed via your office.
Sincerely,
J.H. Snider
From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Thursday, June 29, 2017 5:56:15 PM
To: J.H. Snider
Subject: RE: In this email from MSDE’s chief PIO officer, MSDE appears to be choosing to both reject and ignore my Public Information Act complaint filed via your office
Good afternoon Jim,
After we last spoke, I relayed your comments and request for prompt disposition of your PIA request to Bill Fields. I’ve been out of the office since late Monday (the 26th) and have not had any further follow up contact with MSDE or its counsel since then. Thus, I don’t have any more information than you do about this email correspondence.
I’m not sure what if any further role I can play here, but will be happy to talk with you more about it. I’m in the remainder of this week and all next week, except for the 4th.
If you want to set a day/time for a follow-call let me know. I’m fairly clear over the next week apart from a few previously scheduled meetings/conference calls.
Lisa
From: J.H. Snider [mailto:snider@isolon.org]
Sent: Thursday, June 29, 2017 6:13 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: Re: In this email from MSDE’s chief PIO officer, MSDE appears to be choosing to both reject and ignore my Public Information Act complaint filed via your office
Hi Lisa:
At this point in the process, I think the best thing to do is to call Bill Fields and ask if he authorized William Reinhard’s letter. If so, that’s about as clear a response as I can imagine to your attempts to get MSDE to either fulfill my Public Information Act request or provide a clear and reasonable explanation for rejecting it. I’ll look forward to finding out how Bill responds.
Sincerely,
J.H. Snider
From: Kershner, Lisa <lkershner@oag.state.md.us>
Sent: Friday, June 30, 2017 11:35 AM
To: J.H. Snider
Subject: RE: In this email from MSDE’s chief PIO officer, MSDE appears to be choosing to both reject and ignore my Public Information Act complaint filed via your office
Jim,
While I understand your interest in knowing more about counsel’s role regarding the issuance of MSDE’s most recent response, I don’t believe your suggestion will move the discussion forward or facilitate resolution of the PIA dispute. Indeed, in light of the attorney-client privilege, I doubt that counsel can say anything beyond what is in the correspondence.
Of course, you can/ should consult your own counsel regarding your rights and any other remedies available to you.
At this point though, I believe I’ve exhausted the means available to me as ombudsman to assist the parties in attempting to resolve the dispute. If you would like, I can attempt to resume discussion with counsel as to how the salary-related information you seek falls within the licensing exemption. However, I understood from our last conversation that you did not believe these discussions were progressing satisfactorily, and did not believe they were likely to be productive. As you know, my role as Ombudsman does not allow me to do more than try to facilitate communication and voluntary resolution between the parties.
I remain willing to discuss this with you further on your return if you wish to do so.
Sincerely,
Lisa Kershner
From: J.H. Snider
Sent: Friday, June 30, 2017 6:22 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: Re: In this email from MSDE’s chief PIO officer, MSDE appears to be choosing to both reject and ignore my Public Information Act complaint filed via your office
Hi Lisa:
Please resume discussion with counsel as to how the salary-related information I seek falls within the licensing exemption. I look forward to hearing the counsel’s response.
Sincerely,
J.H. Snider
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Thursday, July 13, 2017 3:53 PM
To: ‘J.H. Snider’
Subject: Salary Data Document Provided by MSD
Jim,
Fyi, This is the link that Bill Fields sent me. http://archives.marylandpublicschools.org/MSDE/divisions/planningresultstest/doc/20162017Staff/2017_AnalysProSal.pdf
I will follow-up with Bill as to whether MSDE calculates average salaries from disaggregated data provided by local districts, and also find out when MSDE is able to produce such disaggregated data to you.
I’m confident that Bill understands you are not seeking any personal identifying information about local district employees, but will reiterate this point.
I’ll keep you posted.
Lisa
Lisa A. Kershner
Public Access Ombudsman
200 St. Paul Place
Baltimore, MD. 21202
Phone: 410-576-7037
Email: lkershner@oag.state.md.us Lisa A. Kershner
From: ‘J.H. Snider’
Sent: Thursday, July 13, 2017 4:50 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: Salary Data Document Provided by MSDE
Yes, this is the information that MSDE publishes on its website and that lacks the information I have been seeking from MSDE for some nine months now. I’m quite surprised that Bill Fields would send this to you as if he was providing something that hadn’t already been sent me and wasn’t readily available on MSDE’s website.
Thank you for reporting in our conversation this afternoon that Mr. Fields confirms that the salary data MSDE collected was not used for any licensing purpose and that William Reinhard’s June 27, 2017 email to me, which didn’t explicitly mention your intermediation efforts or cc: you, was indeed a formal rejection of my complaints and your intermediation efforts regarding MSDE’s fulfillment of my Public Information Act request.
Of course, despite Mr. Fields’ rejection, I welcome the offer he made to you to “voluntarily” provide me with the disaggregated salary data excluding personally identifiable information such as social security numbers. I don’t understand how such voluntary compliance systems work, which is one reason that I’ve asked you to focus your future communications with him on when he intends to provide me this disaggregated data in a machine-readable, electronic format; that is, in a format in which I could make my own average salary and other calculations. As we discussed, I’m not looking for a rock-solid date by which he intends to get this information to me; just a good faith estimate such as “by the end of this month.” As for the technical details of making such data available in an electronic format, it should take only a few moments at most using a modern electronic database.
Sincerely,
J.H. Snider
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Thursday, July 13, 2017 5:23 PM
To: ‘J.H. Snider’
Subject: RE: Salary Data Document Provided by MSDE
Jim,
I will follow-up on the information as outlined in my below email.
Regarding other matters we discussed, I don’t believe your email below captures the sum and substance of information I provided you concerning the basis of the denial of your PIA under the licensing exemption. To be clear, Bill Field confirmed that MSDE is withholding certain requested data under the licensing exemption for the reasons and on the basis of the response letter you received from him. While he did indicate that MSDE does not gather salary data as to its licensees (teachers) in order to license those individuals, the basis for asserting the licensing exemption is stated in the agency’s response letter.
Additionally, as mentioned during our call today, as things stand now (that is, as of my last conversation with Bill earlier this week), he is looking into what MSDE can actually do in the way of producing salary data stripped of all individual/personal information to you.
I am out of my office tomorrow, and thus, don’t expect to have the chance to speak with Bill again until sometime next week. I’ll keep you posted, as promised.
Lisa
From: J.H. Snider
Sent: Thursday, July 13, 2017 5:35 PM
To: ‘Kershner, Lisa’ <lkershner@oag.state.md.us>
Subject: RE: Salary Data Document Provided by MSDE
I don’t see any difference between my summary and yours in any of the particulars you discuss.
After your conversation with Bill Fields next week, I look forward to learning when he intends to provide whatever information he has offered to provide.
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Wednesday, July 19, 2017 4:03 PM
To: ‘J.H. Snider’
Subject: Update
Quick update: spoke to Bill Fields today about getting you such salary data (stripped of personal information) as MSDE is willing/able to provide. He doesn’t yet know what MSDE will be able to provide, how much time would be entailed or whether there would be any associated costs/fees. He has promised to let me know as soon as he has this information. I will keep you posted.
Lisa A. Kershner
Public Access Ombudsman
200 St. Paul Place
Baltimore, MD. 21202
Phone: 410-576-7037
Email: lkershner@oag.state.md.us Lisa A. Kershner
From: J.H. Snider
Sent: Wednesday, July 19, 2017 4:14 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: RE: Update
Thanks.
On Wed, Aug 2, 2017 at 1:09 PM, Kershner, Lisa <lkershner@oag.state.md.us> wrote:
Hi Bill,
Any update as to whether/when MSDE may be able to produce de-identified teacher salary data to Jim? I’d like to be able to give him an update, and hopefully, close this matter.
Thanks for your help,
Lisa
From: William Fields -MSDE- [mailto:william.fields1@maryland.gov]
Sent: Wednesday, August 2, 2017 3:58 PM
To: Kershner, Lisa <lkershner@oag.state.md.us>
Subject: Re: Jim Snider PIA Request
Lisa – see attached.
[What was attached was a heavily redacted file with salaries, which is posted under the “database” link under the MSDE case study.]
From: Kershner, Lisa [mailto:lkershner@oag.state.md.us]
Sent: Wednesday, August 02, 2017 4:41 PM
To: J.H. Snider <snider@isolon.org>
Subject: FW: Jim Snider PIA Request
Jim,
The attachment was just provided to me by Bill Fields. In my understanding that it contains the de-identified teacher salary data discussed during this mediation.
While I realize this is not the entirety of the data you requested, I believe I have exhausted the avenues for discussion with MSDE and hope this will be of some use to you. Thanks again for the opportunity to work with you on this PIA matter.
Sincerely,
Lisa