WyoFile: Public Records Dispute May Land State in Court 27_wyoming_court

June 26, 2018 09:40 AM
By Andrew Graham
They’ve paid thousands in fees and waited for months, but two transparency advocacy groups still don’t have the public records they requested.
Now they’re threatening to sue the Wyoming State Auditor — the second such threat in less than a year and the latest skirmish in a dispute over new rules that allow state agencies to charge for public records.
American Transparency, a national organization, and the Equality State Taxpayers Association, a Wyoming group, say they paid Auditor Cynthia Cloud’s office nearly $8,000 to provide five years of spending data — much of it public information that had been previously published online. But eight weeks after the payment, they’ve only received records for a few weeks of expenditures. The vast majority of their request remains unfulfilled.
The auditor’s office told the two groups it will take "many months" to compile the data, documents show.
The requestors argue that maintaining such information is the core of a public auditor’s mission. And they’ve given the state a deadline of July 15, after which, they say, they will take their case to court.
"At the present rate of producing the records," a letter from Casper attorney Drake Hill to the Wyoming Attorney General’s office read. "It literally will take 30 years to comply with records requests seeking just five years of data."
Open the Books — a project of the Illinois based 501(c)(3) nonprofit American Transparency — compiles government expenditures and publishes the information online to track tax dollar spending. They’ve published "checkbooks" for 47 states on openthebooks.com, CEO and founder Adam Andrzejewski told WyoFile. The group has been pursuing Wyoming’s "state checkbook" since 2015, he wrote in an email. The group wants a record of all state government payments to vendors. They have separately requested a list of all the vendors the state uses, and their addresses. The intent is to combine the two lists in order to create the "state checkbook," Andrzejewski wrote.
The majority of the data they’re requesting has already been publicly posted: Vendor payments are searchable on the auditor’s website, but the records are only kept online for 90 days. Open the Books wants all the data — including figures which were once available online but have since been removed — for the last five years.
The auditor’s office has told Open the Books the files exist for the five year period they’ve requested, Andrzejewski said. "Her office already vetted this information, posted it online, and stored it in archive," he wrote.
But State Auditor Cynthia Cloud initially rejected the request. The office called the request burdensome and said the requested records could include private information and needed to be reviewed.
Wyoming State Auditor Cynthia Cloud (State Auditors Office)
"As previously state [sic], to comply with the request to provide an electronic copy of ‘any’ and ‘all’ vendor (transfer of property or services) payee payments for the year 2016 would be a daunting effort," Deputy State Auditor Sandy Urbanek said, according to emails published on openthebooks.com. Completing the request would "impair the State Auditor’s Office’s ability to discharge its duties to the citizens of Wyoming," Urbanek wrote.
State Auditor Cloud is one of five statewide elected officials.
In January 2018, Open the Books threatened to sue through Drake Hill’s law firm. The auditor then dropped her objections, but under new rules allowing state agencies to charge for certain public records required $7,820 from the groups to complete their request.
"Why were we charged an $8,000 fee when the auditor is tasked with paying the bills, auditing the books and fulfilling open records requests?" Andrzejewski said. "It’s the job description of the office."
Agencies can more broadly charge for public records following the 2016 implementation of statewide rules enabling such fees. A legislative committee is now reviewing those rules and the 2014 law that called for them, in part, because of Open the Books’ requests. The group is pursuing data from more than 800 Wyoming state and local government entities. At the committee’s first meeting since the last legislative session ended, several heads of small rural entities testified the requests had swamped their small staffs.
A letter from the auditor’s office to Andrzejewski and Bill Doenz, the chairman of the Equality State Taxpayers Association, cited the new rules in justifying the nearly $8000 fee.
The auditor’s office estimated it would take 18 hours of staff time to review each year of the previously-published vendor expenditures to ensure that no "confidential records" are disclosed.
Total cost to protect confidentiality: $3,600.
Gathering the addresses of the vendors the state paid would be even more difficult, the letter signed by Deputy State Auditor Sandra Urbanek said. The office does not keep a list of vendor addresses in its database, Urbanek contended. Staff would have to retrieve the information from various disparate databases, she wrote, in a detailed and complex description of the work required.
The office will have to develop a "special computer program" to compile the list and "retrieve the requested electronic data and public records from approximately 9 million data transactions … from the uniform accounting system database," Urbanek wrote. Then they’d have to "compile the data, assemble the data into a report, validate that the extract’s outcome meets the specification of the query, and then review the retrieved data to scrub all confidential information."
The letter went on to describe the technical process of retrieving the data and how the computer program would need to be overseen by office staff while it was running. It would take IT staff 40 hours to write the computer program and other staff 80 hours to review the data once it’s extracted.
Total cost to compile the list of addresses: $4,400.
Openthebooks.com, a project of American Transparency, filed broad records requests in order to add Wyoming data to a national online repository of government spending and public employee salaries. (openthebooks.com)
Andrzejewski and Doenz asked to observe the data collection to verify the amount of time it would take and thus the veracity of the fees, according to the auditor’s letter. But public record rules don’t require "that we allow a requestor to be present," the letter said. Instead, the auditor’s office would provide statements itemizing the time spent fulfilling the request, the letter said.
Andrzejewski called the auditor’s fee "draconian." But the American Transparency and Equality State Taxpayers Association split the fee, with each writing a check for $3,910. Doenz paid the Equality State Taxpayers share, said Kevin Lewis, the organization’s associate vice president. Lewis spoke to WyoFile on behalf of Doenz, he said.
The Equality State Taxpayer’s accidentally wrote its check for $3,900. Documents show the auditor’s office responded that it  "will not proceed till it has received payment in full." Lewis returned to the office to deliver the missing $10 and the request proceeded, he said.
Since paying however, Andrzejewski wrote, "Auditor Cloud has slow walked the production." It is difficult to explain the auditor’s delay, he wrote, particularly in light of his experience with requests around the country.
"When we filed an open records request with the City of Chicago in 2012," Andrzejewski wrote, "the city was able to produce 10 years of spending in about 10 days. With modern financial software, it’s just not a complicated task in the year 2018."
It’s particularly galling to the requestors that the auditor’s office is citing technical complexities in compiling the data because the office recently entered into an expensive contract with a data service firm, Lewis said. In 2016 the auditor extended a contract with data company CGI Group, Inc. The extension included technology upgrades and was estimated at a value of $63.9 million according to a press release from the company.
Both groups say they wonder if the auditor is deliberately stalling to hide bad accounting. "We are troubled that the state auditor, whose job it is to stop waste, fraud, corruption and taxpayer abuse, is behaving in violation of transparency laws," Andrzejewski wrote.
Lewis agreed. "We have to ask the question, what are they hiding?" he said. Since filing legal notice the groups have not received a response from the auditor’s office or the attorney general, nor has the pace of records production quickened, Lewis said.  
Andrzejewski blasted the auditor, and Wyoming transparency in general, last week in an editorial in Forbes Magazine, where he is a frequent contributor.
"This should be embarrassing for Wyoming elected officials," he wrote. "It shouldn’t take a search warrant, subpoena, or litigation to force open the state checkbook expenditures."
The state auditor prepared comments for WyoFile that had to first be reviewed by the attorney general, according to auditor’s office staff. Those comments had not been received by press time.
Wyoming public records law doesn’t require agencies to create new records in response to requests — only to produce existing records —  making it difficult to envision why the auditor’s office would charge for the compilation of the vendor address list said Shannon Anderson, staff attorney for the Powder River Basin Resource Council. To complete the records request, Anderson told WyoFile, it would seem they just need to perform the search of their records and provide any data it turned up to Open the Books and the Equality State Taxpayers to compile as they needed.
Anderson and PRBRC have opposed the fees-for-records rules, saying they would hurt efforts by her organization to represent her landowner constituents in environmental disputes.
"If an organization like ours got an estimate of $8,000 to get records we would just abandon the request," she said.
"You pay it before you even get the records and you don’t know what records you’re going to get and when you’re going to get them," she said. The hefty fee combined with the uncertainty creates a "chilling effect" on those seeking public data, she said.
Though Open the Books and Equality State Taxpayers are paying a special fee for their requests, the auditor’s office has shown it doesn’t intend to prioritize their request over their other business, according to Drake Hill’s letter. To Anderson, that’s a telling fact about the records fees.
"You’re creating this additional set of work for them and you’re compensating them for it but it’s not as though they’re going to stay after five to get that done or put aside other priorities to get that done," she said.
Under the rules crafted by Wyoming Department of Administration and Information, the two groups aren’t technically compensating the auditor’s office, either. The $7,820 will go into the state’s general fund, which lawmakers use to pay for the entire state budget.
"It’s not a reality that makes any sense," Anderson said. "I don’t think the fees have any objective of funding the agency or producing the documents the whole goal is to prevent requests in the first place."
Back to news
Sign the Petition