The audit was part of a nationwide project coordinated by several news agencies to test public-record access as part of Sunshine Week, an annual event designed to highlight open government and the public's right to know.
By law, states are supposed to designate Local Emergency Planning Committee (LEPC) districts. Among their responsibilities, the LEPCs are supposed to maintain community response plans that identify facilities using hazardous materials, describe emergency procedures, and outline evacuation plans and emergency notification procedures. The plans are supposed to be updated annually, and LEPCs are supposed to notify the public each year about the plan's availability.
Debra Gersh Hernandez, Sunshine Week audit project coordinator, said the emergency response plan was chosen because it is supposed to be public, and it is something that is relevant across many communities.
"I think citizens have a right to know what hazardous materials are in their community," she said. "This is basic information that people need to know."
Sue Willits, director of the Kent County Office of Emergency Services, said the county's basic plan is available on a CD and on the county's Web site.
"I feel our plan is policy; policy is public," she said. "The step-by-step procedures to follow that are private."
Keeping details of the plan out of public view is allowable under the federal Emergency Planning and Community Right to Know Act of 1986. The two-tier access is designed to ensure that the public is informed of potential dangers in their community, but officials can keep more sensitive information private.
Many jurisdictions, however, don't make that distinction. In Wicomico County, David Shipley, deputy director of the LEPC Management Agency, said Wicomico's policies are different from other communities.
Review vs. copy
Shipley originally said the plan was not public. Later, he said the plan could be viewed, but could not be copied.
"Nobody was ever prohibited from viewing it," he said. "In my mind, reviewing and copying are two different things."
Bob McDonald of the state attorney general's office said he was not aware of any such distinction.
"As a general rule, any record that is open to public inspection is also open to copying," he said.
"It doesn't make common sense that you can read the document, but can't make a copy of it," he said.
Officials in several jurisdictions forwarded the request to their county attorneys, many of whom denied or delayed access to the plans.
Ernest Crofoot, county attorney in Caroline County, sent a reply to the requester indicating that he would have to review the entire document - at a cost of $195 per hour - and that the total cost would be in the range of $1,200 to $1,600, plus $114 for copying.
"To proceed with the handling of your request, the county must receive an advance against the costs in the amount of $1,200," Crofoot wrote in a response to the requester.
Lieberman said receiving incorrect information from county attorneys is especially troubling.
"The lawyers have an obligation to research the law before they give advice to county employees about what they can and can't release," he said.
Crofoot said later that the initial request was unclear, and he thought the auditor wanted the entire plan instead of just the public portion.
"We interpreted the request to be something much more significant," he said.
McDonald said the attorney general's office recommends that people requesting public documents do so in writing, even though it is not required by law.
"It's important that you make clear what you are asking for," he said. "Especially when it is something that people may not ask for every day or that could be misinterpreted."
Agencies denying access to a document must do so in writing, and they must cite specific sections under the law that allow the denial.