CHEYENNE – Less than a month before it goes into effect, state lawmakers are discussing potential changes to Wyoming’s new open records law.
In Gillette on Tuesday, the Legislature’s Joint Judiciary Interim Committee heard from state and local agencies on potential issues they see with Senate File 57. That bill was passed in the final days of the 2019 Wyoming Legislature with significant support in both chambers, and sets specific time frames and guidelines for how government agencies should respond to records requests.
The bill gives agencies 30 days to produce the records, unless good cause exists for withholding them. The bill also created an ombudsman position to help mediate disputes over records requests. Requestors may also continue to sue in district court for access to the records.
A major issue with SF 57 for those agencies whose representatives testified in front of the Judiciary Committee on Tuesday was the 30-day deadline.
While most records requests are narrow and can be responded to within that set time frame, both the state Department of Environmental Quality and the Attorney General’s Office said massive requests for records like troves of emails could never be provided in that short of a time frame.
Chief Deputy Attorney General Ryan Schelhaas said there are 30 exceptions in state law that would prevent a public record from being released, with eight of those being at the discretion of the agency. Those exceptions, some of which have multiple parts, mean that for massive requests for public information, there’s a significant amount of work that has to be done to ensure the government is meeting its legal obligation to the public.
“There are reasonable requests, too, and we will fulfill those, and those aren’t challenging to fulfill. But on the other side, there are challenges with dealing with these broad requests,” Schelhaas said during his testimony. “And in this day and age, it’s easy for individuals to shoot off a request to a state agency via an email saying, ‘I want all your emails for this person or this person.’
“Agencies can just get inundated with (requests).”
The fear from state agencies, along with some members of the committee, was a 30-day deadline would create massive failures to comply with the law.
“The concern is if the agency is unable to produce the record as required by statute within 30 days and the requester does not agree to an extension, is the agency then in violation of the Public Records Act?” asked committee co-chairwoman Sen. Tara Nethercott, R-Cheyenne. “That would be the conclusion.”
Rep. Chuck Gray, R-Casper, pointed out SF 57 allows for an agency to cite good cause for not meeting the 30-day deadline. If a requester doesn’t believe it should take more than 30 days, they can appeal to the ombudsman, who would mediate the issue and decide if good cause exists.
“I just don’t think there’s an issue with the (deadline),” Gray said.
Nethercott, who voted against SF 57 when it came to the Senate floor for a third reading, focused her questions on the potential drawbacks for both large and small state agencies. She pointed to surveys of state and local agencies conducted by the committee that showed the vast majority of requests were small and fulfilled without any fees.
“This genesis of this survey came from my concern over my previous work on the Corporations Committee and the incessant allegations of a lack of transparency in the state,” Nethercott said. “And wanting to get actual data associated with that in a much more measured away, as opposed to online, national entities claiming we are not.”
One question that was not included in the survey was how many requests were rejected, and, if so, what grounds were being cited for the denials.
While the committee didn’t propose any amendments to SF 57, the topic will again be on the agenda for the group’s next meeting in August. Nethercott requested information be provided to the committee about the dozens of exceptions written into the public records laws and a desire to hear from agencies on the issues they have with responding to large records requests.
Many members seemed to express a desire to tighten, change or completely overturn SF 57. But Rep. Mark Jennings, R-Sheridan, said in his tenure in the Legislature, he’d never seen lawmakers try to change a bill before it had even had a chance to go into effect.
“I’ve heard of all kinds of great ideas here today. But as of July 2, some of those ideas may shift and may change, and some of them you guys may want to implement prior to, or there upon, it becoming law,” Jennings said. “It seems very strange that we’re very fixated on fixing a problem in a bill that hasn’t become law. It just seems premature to me or weird.”