The Not So Subtle Difference Between the Answer to a Question and a Document

The answer to a question and a document — two very different things according to the Maryland Public Information Act.

Unless you're an attorney at the Baltimore County Public Schools.

This issue of how the schools system releases information about salaries came up again on Tuesday when legislators questioned Superintendent Joe A. Hairston about how requests for salary information are handled.

Margaret-Ann Howie, the schools system's attorney, told lawmakers that "the school system follows state law, the state government article, the Public Information Act, when releasing information that is requested. The same process is used when requests are made concerning salary."

(Hear Howie answer questions about the release of salary information.)

Howie said the school system has a policy — Superintendent's Rule 2373 — which she said "tracks" with the state law which she said requires a written request.

The schools system has frequently said it has a policy governing the release of salary information. Patch requested a copy which Phyllis Reese, a schools spokeswoman, later acknowledged was not written down.

Superintendent's Rule 2373 is not that Holy Grail. The rule deals only with a schedule of fees the system can charge for requests.

Howie told legislators that rule 2373 tracks with state law in that it requires a written request for documents.

That interpretation of state law, on which the schools system relies and Howie defends, is faulty on two important counts.

I've written a number of times about this issue as it applied to a request made to the county schools system for the salary of Renee Foose, a newly hired deputy superintendent.

The Baltimore Sun and Patch asked for Foose's salary. The Sun filed a written request. Patch did not.

The schools system ultimately released the information. The Baltimore Sun reported that it was provided information on Foose's $214,000 salary a month after requesting it.

Patch was given the same information 35 days after it was requested verbally. A .

The reason for not filing the request was simple — state law does not require it. Asking how much a government employee makes is a question and not a document. Patch only wanted to know Foose's agreed upon salary figure, not obtain her contract with the school system.

The state law doesn't apply to the asking of a question.

Don't take my word for it. The law governing public information is surprisingly simple to read. The guide to the law, produced by the Office of the Attorney General, is even easier.

Howie told legislators Tuesday that salary is a public information and releasable under state law. The law requires a written request, she said.

Attorneys make their livings on semantics — each word in law having a specific meaning. Bill Clinton, the former president and an attorney, once said his answer to a question hinged on the meaning of the word "is".

I am not an attorney. I don't even play one on TV.

I do have significant experience in this, though, having served on the national Society of Professional Journalists committee on government sunshine issues as well as a state press association's committee that tracks the Maryland Public Information Act. I've been asked to speak a number of times on the law including numerous community association meetings where residents wanted to learn more about the law. I was the only member of the media that was part of a panel that spoke to Baltimore County department heads and communications officials about the state law.

The term public record has a specific meaning in the state Public Information Act and is defined "as any documentary material." The law contains a pretty good list of documents as well as video and audio recordings.

Salary is mentioned, too, but only as it related to "a document that lists the salary of an employee." A contract or a budget would be good examples.

The law requires a written request but also allows government agencies some flexibility.

Agencies can waive the requirement and allow immediate access to documents it has determined are public and that law suggests that agencies develop a running list of such documents in order to allow for near immediate release of information.

Asking how much a government employee makes is not the same as asking for a document.

Robert McDonald, an assistant attorney general and the state guru on the Public Information Act, agreed, calling the point "a sophisticated argument."

"The law contemplates a request for a document," McDonald said, adding that the courts and the law generally define that as a photograph, video or other tangible document.

"It's really about documentary materials," McDonald said.

Other state and county agencies release salary information as a matter of course. Late last year, Patch asked for the salaries and resumes of more than a dozen employees appointed by County Executive Kevin Kamenetz.

Don Mohler, Kamenetz's chief of staff and lead spokesman, released the information in less time than it takes to get a pizza delivered. He didn't even ask for a written request.

Some state lawmakers didn't seem to buy into Howie's explanation.

"She was just talking legalese," said Sen. Kathy Klausmeier, a Perry Hall Democrat and chairwoman of the county Senate delegation.

Del. Steve Lafferty, a Towson Democrat and vice chairman of the House delegation, agreed and said he believed Howie had not addressed the issue of why the salary figure couldn't simply be released.

Howie, in her comments to legislators this week, acknowledged that the public has the right to know the salaries of its employees.

"The law specifically says that the salary of a public employee is public information," Howie said. " So, there is no question it will be released."

On that, Howie and I are in complete agreement.

Maybe the public will now be able to get that information simply by asking for it.