Public records dispute may land state in court

They’ve paid thousands in fees and waited for months, but two transparency advocacy groups still don’t have the public records they requested.

Now they’re threatening to sue the Wyoming State Auditor — the second such threat in less than a year and the latest skirmish in a dispute over new rules that allow state agencies to charge for public records.

American Transparency, a national organization, and the Equality State Taxpayers Association, a Wyoming group, say they paid Auditor Cynthia Cloud’s office nearly $8,000 to provide five years of spending data — much of it public information that had been previously published online. But eight weeks after the payment, they’ve only received records for a few weeks of expenditures. The vast majority of their request remains unfulfilled.

The auditor’s office told the two groups it will take “many months” to compile the data, documents show.

The requestors argue that maintaining such information is the core of a public auditor’s mission. And they’ve given the state a deadline of July 15, after which, they say, they will take their case to court.

“At the present rate of producing the records,” a letter from Casper attorney Drake Hill to the Wyoming Attorney General’s office read. “It literally will take 30 years to comply with records requests seeking just five years of data.”

Open the Books — a project of the Illinois based 501(c)(3) nonprofit American Transparency — compiles government expenditures and publishes the information online to track tax dollar spending. They’ve published “checkbooks” for 47 states on openthebooks.com, CEO and founder Adam Andrzejewski told WyoFile. The group has been pursuing Wyoming’s “state checkbook” since 2015, he wrote in an email. The group wants a record of all state government payments to vendors. They have separately requested a list of all the vendors the state uses, and their addresses. The intent is to combine the two lists in order to create the “state checkbook,” Andrzejewski wrote.

The majority of the data they’re requesting has already been publicly posted: Vendor payments are searchable on the auditor’s website, but the records are only kept online for 90 days. Open the Books wants all the data — including figures which were once available online but have since been removed — for the last five years.

The auditor’s office has told Open the Books the files exist for the five year period they’ve requested, Andrzejewski said. “Her office already vetted this information, posted it online, and stored it in archive,” he wrote.

But State Auditor Cynthia Cloud initially rejected the request. The office called the request burdensome and said the requested records could include private information and needed to be reviewed.

“As previously state [sic], to comply with the request to provide an electronic copy of ‘any’ and ‘all’ vendor (transfer of property or services) payee payments for the year 2016 would be a daunting effort,” Deputy State Auditor Sandy Urbanek said, according to emails published on openthebooks.com. Completing the request would “impair the State Auditor’s Office’s ability to discharge its duties to the citizens of Wyoming,” Urbanek wrote.

State Auditor Cloud is one of five statewide elected officials.

In January 2018, Open the Books threatened to sue through Drake Hill’s law firm. The auditor then dropped her objections, but under new rules allowing state agencies to charge for certain public records required $7,820 from the groups to complete their request.

“Why were we charged an $8,000 fee when the auditor is tasked with paying the bills, auditing the books and fulfilling open records requests?” Andrzejewski said. “It’s the job description of the office.”

Agencies can more broadly charge for public records following the 2016 implementation of statewide rules enabling such fees. A legislative committee is now reviewing those rules and the 2014 law that called for them, in part, because of Open the Books’ requests. The group is pursuing data from more than 800 Wyoming state and local government entities. At the committee’s first meeting since the last legislative session ended, several heads of small rural entities testified the requests had swamped their small staffs.

A letter from the auditor’s office to Andrzejewski and Bill Doenz, the chairman of the Equality State Taxpayers Association, cited the new rules in justifying the nearly $8000 fee.

The auditor’s office estimated it would take 18 hours of staff time to review each year of the previously-published vendor expenditures to ensure that no “confidential records” are disclosed.

Total cost to protect confidentiality: $3,600.

Gathering the addresses of the vendors the state paid would be even more difficult, the letter signed by Deputy State Auditor Sandra Urbanek said. The office does not keep a list of vendor addresses in its database, Urbanek contended. Staff would have to retrieve the information from various disparate databases, she wrote, in a detailed and complex description of the work required.

The office will have to develop a “special computer program” to compile the list and “retrieve the requested electronic data and public records from approximately 9 million data transactions … from the uniform accounting system database,” Urbanek wrote. Then they’d have to “compile the data, assemble the data into a report, validate that the extract’s outcome meets the specification of the query, and then review the retrieved data to scrub all confidential information.”

The letter went on to describe the technical process of retrieving the data and how the computer program would need to be overseen by office staff while it was running. It would take IT staff 40 hours to write the computer program and other staff 80 hours to review the data once it’s extracted.

Total cost to compile the list of addresses: $4,400.

Andrzejewski and Doenz asked to observe the data collection to verify the amount of time it would take and thus the veracity of the fees, according to the auditor’s letter. But public record rules don’t require “that we allow a requestor to be present,” the letter said. Instead, the auditor’s office would provide statements itemizing the time spent fulfilling the request, the letter said.

Andrzejewski called the auditor’s fee “draconian.” But the American Transparency and Equality State Taxpayers Association split the fee, with each writing a check for $3,910. Doenz paid the Equality State Taxpayers share, said Kevin Lewis, the organization’s associate vice president. Lewis spoke to WyoFile on behalf of Doenz, he said.

The Equality State Taxpayer’s accidentally wrote its check for $3,900. Documents show the auditor’s office responded that it  “will not proceed till it has received payment in full.” Lewis returned to the office to deliver the missing $10 and the request proceeded, he said.

Since paying however, Andrzejewski wrote, “Auditor Cloud has slow walked the production.” It is difficult to explain the auditor’s delay, he wrote, particularly in light of his experience with requests around the country.

“When we filed an open records request with the City of Chicago in 2012,” Andrzejewski wrote, “the city was able to produce 10 years of spending in about 10 days. With modern financial software, it’s just not a complicated task in the year 2018.”

It’s particularly galling to the requestors that the auditor’s office is citing technical complexities in compiling the data because the office recently entered into an expensive contract with a data service firm, Lewis said. In 2016 the auditor extended a contract with data company CGI Group, Inc. The extension included technology upgrades and was estimated at a value of $63.9 million according to a press release from the company.

Both groups say they wonder if the auditor is deliberately stalling to hide bad accounting. “We are troubled that the state auditor, whose job it is to stop waste, fraud, corruption and taxpayer abuse, is behaving in violation of transparency laws,” Andrzejewski wrote.

Lewis agreed. “We have to ask the question, what are they hiding?” he said. Since filing legal notice the groups have not received a response from the auditor’s office or the attorney general, nor has the pace of records production quickened, Lewis said.  

Andrzejewski blasted the auditor, and Wyoming transparency in general, last week in an editorial in Forbes Magazine, where he is a frequent contributor.

“This should be embarrassing for Wyoming elected officials,” he wrote. “It shouldn’t take a search warrant, subpoena, or litigation to force open the state checkbook expenditures.”

The state auditor prepared comments for WyoFile that had to first be reviewed by the attorney general, according to auditor’s office staff. Those comments had not been received by press time.

Wyoming public records law doesn’t require agencies to create new records in response to requests — only to produce existing records —  making it difficult to envision why the auditor’s office would charge for the compilation of the vendor address list said Shannon Anderson, staff attorney for the Powder River Basin Resource Council. To complete the records request, Anderson told WyoFile, it would seem they just need to perform the search of their records and provide any data it turned up to Open the Books and the Equality State Taxpayers to compile as they needed.

Anderson and PRBRC have opposed the fees-for-records rules, saying they would hurt efforts by her organization to represent her landowner constituents in environmental disputes.

“If an organization like ours got an estimate of $8,000 to get records we would just abandon the request,” she said.

“You pay it before you even get the records and you don’t know what records you’re going to get and when you’re going to get them,” she said. The hefty fee combined with the uncertainty creates a “chilling effect” on those seeking public data, she said.

Though Open the Books and Equality State Taxpayers are paying a special fee for their requests, the auditor’s office has shown it doesn’t intend to prioritize their request over their other business, according to Drake Hill’s letter. To Anderson, that’s a telling fact about the records fees.

“You’re creating this additional set of work for them and you’re compensating them for it but it’s not as though they’re going to stay after five to get that done or put aside other priorities to get that done,” she said.

Under the rules crafted by Wyoming Department of Administration and Information, the two groups aren’t technically compensating the auditor’s office, either. The $7,820 will go into the state’s general fund, which lawmakers use to pay for the entire state budget.

“It’s not a reality that makes any sense,” Anderson said. “I don’t think the fees have any objective of funding the agency or producing the documents the whole goal is to prevent requests in the first place.”

Doenz

Equality State Taxpayers Association was originally created by Doenz, a rancher, to fight tax increases, particularly property taxes, Lewis said. Today, the group is primarily concerned with pursuing transparency in government spending and budgeting in response to some lawmakers’ discussions of changing Wyoming’s tax structure, Lewis said.  

The group asks politicians to sign a pledge to oppose any new taxes and sees Wyoming’s government as “bloated,” according to its website. “It is time to reduce the size of state government to reflect our current economy,” the site states.

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Doenz himself is a donor to conservative politicians, including several lawmakers who have publicly aligned with Equality State Taxpayers Association — such as Reps. Chuck Gray (R-Casper), Mark Jennings (R-Sheridan) and Bo Biteman (R-Ranchester).

Most recently, he gave $2,500 to Harriet Hageman’s campaign for governor, a donation that was matched by his wife, Theresa Doenz. Hageman has government-spending transparency as part of her platform, particularly as it applies to education funding. Other candidates have echoed that message.

“There are only a handful of people who potentially truly understand the budget,” Hageman told WyoFile last week. “There’s a reason that Wyoming has grown to be the largest government,” she said.  

Advocates for public education caution against taking narratives of opaque accounting too far. Some information pursued by Open the Books is already published in other forums. Teacher salaries that the organization pursued, for example, are published in local newspapers as required by statute, said Brian Farmer, director of the Wyoming School Boards Association.

Earlier requests by Open the Books found expenses like $35,000 paid by the Department of Education for a magician to perform at a 2015 STEM conference, according to an opinion column by Andrzejewski in the Casper Star-Tribune.

Spending items like that are potent fodder in the increasingly heated political debate over education funding. But Farmer argued people have ample ways to understand where the money in education goes. In July, school boards will begin to finalize their budgets. They will hold public hearings and take comment, Farmer said.

Public schools, Farmer said, “really make it easy to find a whole host of information on both finance and performance.” If spending raises eyebrows, then people should ask questions, he said. “Call the person at the Department of Education and say ‘can you explain why did we hire a $35,000 whatever for this STEM conference,’” he said. “Chances are there’s a very good answer.”   

The politics of education funding aside, Anderson, the environmental attorney, said it’s clear that Open the Books and Equality State Taxpayers are bringing a debate over fees for public records to a new boiling point. The new record rules don’t allow for an appeal of fees set by agencies and Drake Hill’s letter makes plain the groups’ intention to bring their arguments to court if need be.

It is only a matter of time before the new rules are challenged in court either way, Anderson said: “We’re going to see some litigation on this.”

UPDATE: Last week, the auditor’s office told WyoFile it was preparing comments that would need to be reviewed by the Wyoming Attorney General’s office, which were not received by the time of this article’s original publication. On Monday evening, Deputy State Auditor Sandy Urbanek said in an email that her agency does not comment on “potential pending litigation.” She provided the below copy of a response to attorney Drake Hill, who wrote the agency on behalf of American Transparency and Equality State Taxpayers Association. -Ed.

CORRECTION: It has been eight weeks since two advocacy groups paid a $7,820 fee to the Wyoming State Auditor’s office, not 15 weeks as originally reported. Fifteen weeks is the time period since American Transparency last filed its records request.