2019 was planned to be a watershed year for transparency in Wyoming.
Well before their inaugurations in January, Gov. Mark Gordon and State Auditor Kristi Racines announced plans to improve transparency in state government with a committee, which met for the third time Wednesday morning in Cheyenne. During the 2019 general session, the Wyoming Legislature passed sweeping reforms to its public records law in a move many lauded as a significant first step in achieving those reforms and, in the Legislature, state lawmakers will be embarking on a two-year study of the state’s public meetings and records statutes to determine whether it can go forward.
In a Tuesday’s meeting of the Legislature’s Joint Judiciary Committee, lawmakers got their first look at how complicated that process could potentially be, learning for the first time the challenges and difficulties the state’s nearly 400 boards, commissions, special districts and agencies currently face in regard to compliance with Wyoming’s public records laws.
Dealing with issues from compliance with privacy regulations to staffing limitations, numerous state entities face a number of substantial barriers to total transparency, according to a survey of 177 state entities released by the Legislative Service Office this week.
According to committee co-chair Sen. Tara Nethercott, R-Cheyenne, the report was meant to address a narrative of a lack of transparency in the state and was intended to get data on the state’s public records obligations in a “measured way.” With real data, Nethercott said, the committee would be able to move forward on meaningful legislation to improve transparency, proceeding with a true understanding of realistic reforms that could improve transparency from Wyoming’s smallest conservation districts to the largest state agency.
While public records requests are a rare occurrence for a majority of state agencies — roughly 58 percent of all respondents said they dealt with 0 to 3 requests last year — they can be a burden for the agencies that do deal with them, with the time required to produce records — and the regulations that govern agencies working to comply with those requests — emerging as the largest issue, according to a list of survey responses released by the LSO.
Regulations governing privacy are the largest concern, Chief Deputy Attorney General Ryan Schelhaas said. While government transparency is important, Schelhass said, public records law is just as much about the government’s responsibility to protect sensitive information as much as it is about government accountability, with dozens of exceptions written in public records statutes to offer those protections, including 22 that are mandatory.
With public records custodians are required to consider all of these protections when reviewing documents for release, the time required of agencies to administer the law can be extensive and burdensome for government workers, Schelhaas said, especially with limited staff and requests that can sometimes be broad and wide-reaching.
“There is no agency in the state that is against transparency,” Schelhaas said. “We all agree it’s important, and we all understand the intention of the Public Records Act is transparency. That’s part of our job in responding to requests. However, there are challenges and difficulties when responding to those records requests.”
Other issues emerged in the meeting, particularly concerns about private industries with business models that rely on data taking advantage of already overburdened public agencies.
Particularly of concern to state agencies are the compliance requirements written into Senate Enrolled Act 72, which requires agencies to release requested records within 30 days.
Some requests are simple and can easily be furnished within that time limit. However, others can be extensive, with Department of Environmental Quality Director Todd Parfitt detailing requests that can reach in excess of 100,000 emails — each of which would need to be evaluated for redaction to comply with state law. That process, he said, was estimated to take up to 1,100 hours of his own staff time, in addition to the time required by the state attorney general’s office and other agencies, like the state’s Department of Enterprise Technology Services.
“That 30 day deadline is a tough haul,” Schelhaas said.
Jeremiah Rieman said that counties have been wanting additional guidance in how to administer the new laws and that some have had difficulties designating someone to take on the role of public records custodian. Some counties, he added, are concerned about the potential criminal penalties that could have resulted from failures to comply with state public records statutes.
Though failure to comply is no longer a felony — as was originally proposed — there is still a $750 fine attached, as well as other civil penalties that could be levied in response to a violation.
“That’s directly the issue resulting in this,” Rieman said.