Allowing “Rulemaking” To Circumvent Public Records Laws – a Bad Idea

A proposed bill being considered by the Judiciary Committee is tabled until their Halloween meeting for concerns from stakeholders and questions about what the bill would actually accomplish. The bill considers taking a bite of the elephant that is public records being stored and accessed electronically through the creation of a website to house some financial records. However, it does some dangerous things.

In short, the bill seeks to allow rulemaking to circumvent statute for the very definition of what a "public record" is. This is a dangerous slippery slope that Wyoming must not go down. Senator Kost questioned during the meeting if implementation was really just as simple as a "cc" to the website when annual reports are provided to the State Department of Audit – a notion that Senator Nethercott had advocated during bill discussions. Additionally, Representative Stith questioned the true intent of the bill. Representative Chuck Gray also pushed back on the word choice in the bill that's stated purpose was to "permit Wyoming taxpayers to view and track the use of taxpayer dollars…" In reality, this power is inherent in the people, and a website would just make these required documents more accessible.

Aside from these surface-level problems, a deeper one lurks below. The bill purports to allow the Department of A&I to "determine what public financial information shall be provided by participating state entities and local government entities…" While proponent of the bill Nethercott, asserted that it sought a "one stop shop" for public records, the deeper implication was one of an easy out for state bodies.

In fact, the representative for the Conservation Districts lobbied that this should qualify as a sufficient response for all financial documentation requests – a disingenuous suggestion when viewed in light of the fact that nearly everyone admitted that this bill would simply be a starting point for documents being publicly available and that A&I's discretion would limit what was actually available online.

Reading between the lines yields the clear message that some bodies, including the Conservation Districts are desperately trying to roll back SF57 anyway they can. This bill leads some to think it may help transparency, when really the result will be a significant blow to the transparency effort if the discretionary A&I provision is left in and if the Committee considers the troubling Conservation District amendment requests.

Anyone who wants to know how problematic rulemaking in lieu of lawmaking may be, need look no further than to the fees being charged for public records in Wyoming. These fees are notoriously high comparative to other states. A citizen who sought financial records from a couple of special service districts in Weston County was hit with a bill for $1,066.50, and $750 of that was for time expended to fill the request. Another citizen was required to pay $380 before she could get Game and Fish records on the predator program and was charged a base fee of $200 by a county predator board regardless of the size or content of the request. Newspapers have a line item in their budgets of thousands annually because of these fees.

Why? Rulemaking committees in Wyoming were allowed to set the fee structure rather than allowing statute and organized lawmaking control. In some states, the first 50 pages are free, while others do not charge at all because the records are readily available online with the click of a button. Some states even craft a fee waiver into statute for the press and non-profit organizations.

Wyoming however, likes to keep its power centralized into committees and agencies, allowing record request fees to be subject to "rulemaking" outside of the standard law making process. Rulemaking committees and agencies have set forth our notorious fee structure, and now the Judiciary Committee tabled for their next meeting, the consideration of whether these same bodies can now decide what should and should not be an electronic public record.

This dangerous notion will undermine transparency. Furthermore, it will have bad consequences without the legal consistencies that one can obtain through the standard law-making processes. Through rulemaking you end up with legal fictions that don't make sense or exhibit arbitrary and unfair rules. A clear example is our transparency tax established by fee rulemaking because the payment to the entity for costs and time doesn't even go to the entity for reimbursement, it goes into the general fund. Let's leave the lawmaking to the lawmakers and let's give SF57 some time to work before bodies, like the Conservation Districts in Wyoming, seek to cut the legs out from under it.