Attorney General References Photo Enforcement Cases in Public Information Act Report

A recent report on the Implementation of the Maryland Public Information Act by the Maryland office of Attorney General references two pubic records disputes raised by the Maryland Drivers Alliance, demonstrating how matters pertaining to photo enforcement are are having an influence on the understanding of government transparency affecting a broader range of issues.

The report references cases pertain to the matter of "NonGovernment Custodians", documenting that records maintained by a non-government custodian are considered public records if they pertain to a function that would normally be carried out by the government. Page 30 of the report states:

Lying at the public end of the spectrum are speed camera vendors, which essentially perform a governmental function—enforcement of speed limits. In much the same way that the government cannot avoid the PIA by storing its public records with a private vendor, there is some force to the argument that the government should not be able to avoid the PIA by delegating its public responsibilities to a private vendor. Although there are no reported appellate decisions on the topic here in Maryland, we are aware of one circuit court decision in which the court appears to have concluded that the government violated the PIA by not disclosing records maintained by its third-party speed camera vendor. See Ely v. Town of Morningside, Order, CAL12-23425 (Pr. G. Cir. Ct., May 29, 2014); see also, e.g., Ark. Op. Atty. Gen. 2008-154 (Nov. 12, 2008) (concluding that state public records law applied to private company Final Report of the Office of the Attorney General on the Implementation of the Public Information Act 31 hired to operate school bus system because that was “a task that would otherwise be conducted by the [government]”).

The case "Ely vs Morningside" was brought to the court by the editor of the Maryland Drivers Alliance website, after the Town of Morningside refused a request for speed calibration records that were legally required to be kept. Judge Albert Northrop argued this was inappropriate: "Respondent argued that the records were not in its possession because they were held by a contractor. To allow public records held by a contractor to be exempt from the Public Information Act would render the entire act ineffective."

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