Tuesday, November 24, 2009

MdTA Releases More Documents on Free E-ZPasses for Legislators

The one lingering mystery from the now-cancelled free E-ZPass program for state legislators concerns the number of Senators and Delegates who had them. In August 2009, the Maryland Transportation Authority (MdTA) told us that 128 state legislators had free E-ZPasses but refused to release their names. On September 30, MdTA responded to our Public Information Act (PIA) request seeking those names and told us that only 71 had them. What happened to the other 57 legislators? We found out that MdTA tipped off the General Assembly about our PIA request in a September 23 letter, but we had no further details. So we sent another information request and MdTA has sent us its response.

Specifically, we asked MdTA for:

1. A list of legislators who held non-revenue E-ZPass accounts for any period of time between January 1, 2009 and September 30, 2009.

2. A list of the dates on which any of these accounts were canceled from January 1, 2009 through September 30, 2009.

3. Copies of any records of communication between MdTA and any member of the General Assembly about these non-revenue accounts from August 1, 2009 on.
MdTA responded to each of these questions as follows:

l. A list of legislators who held non-revenue E-ZPass accounts between January 1 ,2009 and September 30, 2009 does not exist. The September 30, 2009, list was provided to you as a courtesy, although the Authority was not required to do so by the Maryland Public Information Act. Under the P IA, you may only obtain an agency's existing records.

2. A list of dates on which any accounts were cancelled for Maryland General Assembly Members does not exist.

3. Correspondence responsive to this request regarding legislators and the E-ZPass nonrevenue account program, which is not privileged or otherwise not subject to disclosure, is enclosed. Some correspondence responsive to your request has been withheld pursuant to SG § 10-615(l) because it is subject to attorney-client privilege. Portions of documents have been redacted or withheld because they contain personal data provided to the Authority in connection with an electronic toll collection system that shall not be disclosed pursuant to SG § 10-616(m).
So the agency does not have any historical records on free E-ZPass use, does not know when they were cancelled prior to the program’s termination and – incredibly – claims to not be covered by the state’s Public Information Act. Moreover, the agency says that some documents are protected by attorney-client privilege. Did the agency consult an attorney in determining how to respond to our PIA request?

MdTA did send some documents that should be considered in a timeline of this matter’s development. It is clear from the correspondence that the agency, this blog and the General Assembly’s leadership interacted in a way that ultimately terminated the program. Here is how the issue progressed.

1. On August 24, we reported that 128 state legislators carried free E-ZPasses but MdTA refused to name them because of “privacy and security issues.” Two days later, we drafted a PIA request to get the names of the legislators who had them. MdTA received the request on September 1.

2. MdTA began its effort to respond to our PIA on September 2 by assembling data on legislators’ license plates that were associated with free E-ZPasses.

3. On September 23, MdTA wrote to members of the General Assembly who had free E-ZPasses alerting them about our PIA request. We obtained a copy of MdTA’s letter on our own and MdTA sent it to us in their latest PIA response.

4. On September 25, Senate President Mike Miller and Speaker of the House Mike Busch announced that they were asking MdTA to cancel the program. We posted a copy of their letter and mass press coverage ensued, including on NBC4.

5. On September 28, MdTA faxed Senators and Delegates a request seeking information about the vehicles covered by their free E-ZPasses. It is unclear why MdTA was requesting this information because the General Assembly’s presiding officers had announced the end of the program three days earlier. Below is a faxed letter sent to Senator David Harrington (D-47), one of many that were sent out.

6. Several members of the General Assembly began communicating with MdTA about this issue during this period. Here is an aide to Senator Rona Kramer (D-14) asking MdTA to make clear that the Senator never had a free E-ZPass.

Here is Delegate Rick Weldon (I-3B), who represents parts of Frederick and Washington Counties, responding that he does not have a free E-ZPass because he does not have to use toll roads to commute to Annapolis.

And here is Senator Mike Lenett (D-19) making it crystal clear that he has no free E-ZPass and pays his tolls like any other citizen of the state.

7. The thirty-day deadline for MdTA to answer our PIA request seeking the names of free E-ZPass holders was rapidly approaching by the end of September. MdTA knew it was under scrutiny by the press, and especially this blog. So did the General Assembly and its leadership. On September 28 – just two days before responding to our PIA seeking the names of legislators with free E-ZPasses – MdTA sent this letter to a state legislator allowing that person to cancel his or her free account. Who was this individual? Why is this person’s name redacted? Were any other similar letters sent? We will never know because the list of legislators with free E-ZPasses we obtained from MdTA was dated September 30. This letter is hard evidence that MdTA allowed at least one state legislator with a free E-ZPass to escape being outed on this blog.

MdTA was also in direct communication with the Speaker’s office on this issue. Here is an email from Gail Moran, MdTA’s Manager of Government and Community Relations, to Kristin Jones, the Speaker’s Chief of Staff, pointing out our blog post about the program’s cancellation.

And here is a second email on the same day from Moran asking Jones to “please call me NOW.”

8. MdTA responded to our PIA request and named 72 state legislators who had free E-ZPasses on September 30. But MdTA almost immediately contacted us to remove one name from the list: Senator Jim Rosapepe (D-21). MdTA told Rosapepe of its effort to clear his name from the list.

9. At the request of the Senate President and Speaker, MdTA terminated the free E-ZPass program effective November 1.

So what are we to make of all this?

First, we are unable to solve the mystery of why MdTA said that 128 legislators had free E-ZPasses in August and a month later claimed only 71 had them. The fact that MdTA tipped off the General Assembly to our PIA request – a step that was not required to answer us – may have something to do with it.

Second, the fact that MdTA was in contact with the General Assembly’s leadership suggests that damage control was one of its priorities. The public image of the state legislature should not be an appropriate topic of concern for the state’s toll authority.

Third, MdTA’s lack of historical records on free E-ZPasses means that the program was subject to abuse. The agency had no way to make sure that the passes were used only for official business and, more importantly, had no way to make sure that former state legislators did not have them.

And fourth, the fact that MdTA had to respond to two PIA requests to release the names of state legislators with free E-ZPasses when it could have easily emailed the information back in August says something about the agency’s regard for disclosure. So does its claim that it is not covered by the state’s Public Information Act and was responding out of courtesy. Agencies that depend on public funds, including taxes and tolls, are subordinate to the citizenry. Responding to our requests for data about the use of our resources is a basic part of any state agency’s duties.

But things could be worse. Other public officials have far less respect for the concept of open government than does MdTA. If Duchy Trachtenberg was in charge of MdTA, we would have received no response to our information request other than a press conference accusing us of having joined the KGB!