A citizen advisory board that oversees a branch of the Department of Environmental Quality ended its holdout last week over new rules requiring fees for public records requests.
Following appearances from high-ranking state officials, the board voted 3-2 to approve the controversial rules that charge citizens for the cost of completing some public records requests.
Citizen advisory boards for each of the DEQ’s three main divisions — land, water and air quality — must recommend the adoption of any new agency rule before implementation. The air quality board had voted against the new public records rules once, but was missing two of its five members when it did so. More recently, in April, the board postponed a vote after pushing back on pressure from DEQ officials and state lawyers to approve the rules.
The air quality board’s resistance had briefly thrown a wrench in the march by state agencies toward charging citizens for completing public records requests if they take a certain amount of state employee hours to complete. But on Thursday the state increased the pressure, when Wyoming Attorney General Peter Michael and DEQ director Todd Parfitt addressed the board.
Those officials told the board it had no choice but to approve the rules because the Wyoming Legislature had voted fees be put in place for records requests.
“They’ve done that and they put these constraints on it,” Michael said. “They didn’t really ask, they told you.”
The episode was the latest development in a saga that has seen government officials turn a single sentence of statute with no clear mandate from the Legislature into a price tag for public records, critics say. Alarmed transparency advocates say state agencies have gone far beyond what lawmakers may have wanted and have largely ignored public comment as they put their desired rules in place. But agency officials claim legislative intent.
Some lawmakers are now examining the rules. The Legislature’s Corporations, Elections & Political Subdivisions Committee made a review of public records law part of their work leading up to the 2019 legislative session.
The legislative mandate Michael cited came in 2014, when lawmakers passed Senate File 67. The bill had a wonky name, “Administrative rules-streamlining” and was sponsored by the Legislature’s powerful Management Council. It didn’t receive a single no vote or amendment as it made its way through the session, according to the bill’s digest.
Then-Senate Majority Floor Leader Phil Nicholas introduced the bill to that chamber as part of an effort to streamline agency rules and make them friendlier to the public, according to an audio recording from the time.
The bill “is the result of the streamlining rule effort that we’ve undertaken to do a better job of combing through the rules throughout state government,” Nicholas said, “minimizing where they’re not required [and] creating general rules that would apply to all types of procedures so that you’re not required to go to the rules of every agency.”
He did not mention public records.
The bill asked agencies to come up with rules for various aspects of state government, including contested case hearings and rule-making. The final paragraph of the bill contained a single sentence on public records:
“The department of administration and information shall adopt uniform rules for the use of state agencies establishing procedures, fees, costs and charges for inspection, copies and production of public records.”
The law said nothing about how those fees and costs should be structured. Even Michael suggested the state didn’t have to adopt the rules it did. Those rules set a fee structure based on staff time used to review records and charge the public for any request that cost more than $180.
“They could’ve said no charge,” Michael said, “which is what it was before.”
The rules direct agencies to charge for the cost of a request before they begin producing it. They do not provide a process for a requestor to challenge a fee. Other than fees, the state did not establish any other procedures for records requests. Records law in Wyoming leaves discretion with the agencies regarding time for completing a request and do not include a deadline for completion.
The new rules were written by the Department of Administration and Information and went through a public comment process. That process was the time for opponents of records laws to speak their piece, Michael said. At the time, organizations advocating for the Wyoming press, for environmental concerns and for government transparency all fought the rules, to no avail.
Rule opponents say the public comment period was little more than a formality, and that A&I didn’t take their concerns into consideration.
“We gave them a list of concerns that are all still there,” said Casey Quinn, an organizer with the Powder River Basin Resource Council, which has been opposing the new rules. He has testified at several hearings held by A&I and other agencies and has seen no changes be made to the rule, he said.
“Public comment was available but it obviously didn’t matter,” Quinn said.
At the air quality division advisory board’s April meeting, board members had also said it seemed the public was being left out.
“I feel I’m speaking for the public … in this stack of comments we’ve received from the public there’s not one single comment in support of this,” said Diane Hulme, a board-member and energy research director at the University of Wyoming.
But on Thursday Michael told board members public comments paled in comparison with the will of the lawmakers who passed the bill.
“It’s important,” the state’s top law-enforcement official said of public comment, “but it’s comment.
“The Legislature is votes,” Michael continued. “We can have public comment that disagrees all we want with what the Legislature said, but ultimately we have to do what the Legislature said.”
Opponents from the public weren’t the only ones who offered suggestions. Many state agencies requested the ability to charge more.
Administrators from the Wyoming Board of Certified Public Accountants, the Department of Revenue, the Game and Fish Department, the Department of Agriculture, the Department of Corrections and the State Treasurer’s office all said the $180 waiver should be reduced or eliminated.
It was impossible to tell if a $180 threshold and the prices set for staff time were correct or not, Michael said. “Did [A&I] strike the right balance? Who knows? None of us will ever know if it’s the right balance.”
Board given little choice
Part of the DEQ’s citizen advisory boards’ charge is to represent the public in its oversight of the agency’s mission, including by approving or disapproving rules. But Michael and Parfitt told the board members that in this case the rules could not be voted down, because the Legislature had asked for uniform rules across all agencies.
DEQ had no choice but to implement them, Parfitt said, and therefore the Air Quality Advisory Board had no choice but to recommend the rules move forward. The board did have a second option, Parfitt said: They could recommend the rules move forward, but note their concerns.
Michael put it more strongly. The board had to approve the rules because they are the law of the land, Michael said. He compared assisting the state in implementing the fees for public records as a legal mandate like obeying the speed limit while driving and avoiding discrimination in hiring practices.
But at least two board members again pushed back against the mandate Michael laid out.
“If we have no choice then we’ll do it but the question here arises that we are being asked to approve something that we have concerns with because the public has written us,” said Dr. Klaus Hanson, a UW German professor and member of the Laramie City Council.
Board member John Heyneman, a Sheridan resident and conservationist, said he was disappointed not just with the choice being offered the board but with the attorney general office’s process. Heyneman had reached out to the AG’s office in the time since the April meeting, but was told the state’s lawyers couldn’t discuss the issue with him, he said.
“It’s disheartening that [communication] didn’t seem to be encouraged or even allowed,” Heyneman said.
Heyneman and Hanson voted against approving the rules. Hulme, Douglas Vickery of Daniel and chairman Timothy Brown of Green River voted in favor.
Though Michael said board members had no choice but to support the rules, the state didn’t seem prepared for what to do if the board had chosen to buck officials and vote no.
“I have no idea,” Michael told WyoFile when asked what would have happened if the vote had gone the other way.
The rules will now move on to the Environmental Quality Council, another governor-appointed citizen oversight board that ultimately has final say over rules for the Department of Environmental Quality. State lawyers have previously said that group will find itself in the same bind as the air quality advisory board when it moves to vote on the records rules.