Transparency: State Ombudsman Should be Empowered to Resolve Public Record Disputes

in CJ Baker/Column

By CJ Baker, Powell Tribune

Wyoming lawmakers and Gov. Mark Gordon deserve real credit for their efforts to improve citizens’ access to public records in 2019.

Revisions to the state’s public records law — approved by the Legislature and signed by the governor — set a definitive 30-day timeline for turning over records and created a new “public records ombudsman.”

We were excited about the addition of an ombudsman, hoping they could help avoid expensive court fights when information seekers get into an argument with a government agency over what information is public.

But it was dismaying to hear last week that the office may actually have little power to sort out disputes.

The new law says that, just like a judge, the public records ombudsman can deliver “a determination as to whether the custodian [that is, the government] has demonstrated good cause” for withholding any particular record.

However, the state’s first public records ombudsman, Ruth Van Mark, told members of the Wyoming Press Association on Friday that there’s some uncertainty as to how her office is supposed to handle disputes. For instance, Van Mark is not a lawyer, so there’s been some concern that she shouldn’t be giving anyone any legal advice.

And while Van Mark believes she needs to make a determination as to whether a particular record is public, the governor’s office is still working to figure out how to do that “within the confines of the law.”

“There’s some disagreement as to whether the act actually gives the ombudsman the authority to make opinions, issue opinions,” Van Mark said. It’s possible, she said, that her role is more to try persuading information seekers and government agencies to come together and meet in the middle.

Van Mark made very clear that the question has yet to be settled, and she has only been on the completely new job for a few months, so it would be premature to jump to any conclusions. But we suspect it will take more than persuasion to settle the kinds of disputes that are most likely to come before the ombudsman.

We’ve found local government officials and employees are, as a rule, open, transparent and helpful. For that reason, the disagreements over public records typically arise in some of the stickier situations and grayer areas of the law. For instance, would the release of an internal investigation into a government employee’s misconduct be in the public’s interest, or “a clearly unwarranted invasion of personal privacy” and thus confidential?

Governments are loathe to release any information that could possibly be construed as being part of an employee’s confidential personnel, in part because of concerns about liability. And that means prying any kind of employee information out of a government agency can require hiring a lawyer and paying high legal fees.

Here’s an example. In 2013, the City of Laramie hired a former mayor as recreation manager, and questions were raised about her qualifications for the job. When Laramie officials refused to release any information about her work history, the Laramie Boomerang went to Albany County District Court and ultimately won a ruling saying that such basic biographical information was a public record.

However, when the Powell Tribune later cited that opinion in seeking the resumé of a disgraced police officer, a City of Powell attorney told the Tribune it would need to get a separate order from a Park County District Court judge.

These are the kind of disputes that we hope an ombudsman can resolve.

To be sure, we appreciate Van Mark’s approach and her willingness to help anyone with a question about public records — and we appreciate the Legislature’s decision to create a position dedicated to helping bring public information to light. But ultimately, it will be a profound disappointment if the ombudsman lacks the power needed to settle tough disputes.

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