Public records ombudsman: Wyoming could benefit from uniform fee structure, stronger enforcement

FROM WYOFILE:

For Sunshine Week, WyoFile spoke with Darlena Potter about her role fielding complaints from people struggling to access public records.

A strong sense of civic duty made a career in law enforcement appealing to Darlena Potter. Yet, after studying administration of justice as a University of Wyoming undergrad, she decided she was too timid to hit the streets with a badge and a gun.

“But I still wanted to be a public servant,” Potter said, who has since found her calling as Wyoming’s public records ombudsman. The Wyoming Legislature created the position in 2019 as part of broader public records reform. The ombudsman’s website explains the job as providing “a resource for the public to resolve issues regarding records requests submitted to state and local government agencies.” The job also involves educating public officials about what’s required of them under Wyoming’s public records law, Potter said.

Having served as ombudsman for roughly three years, she believes in the position’s ability to bolster government transparency, but also recognizes it’s not without limitations. For starters, the Wyoming Public Records Act gives government entities room for interpretation leading to wide variations in procedures and fees. On top of that, the ombudsman can’t actually enforce Wyoming’s public records laws. What Potter can do, is mediate disputes between requestors and requestees, set timelines for the release of records and waive fees.

But just because Potter sets a timeline or waives a fee, there’s no guarantee state, county or municipal governments will comply; only a court can force government officials to hand over records. (Potter doesn’t handle federal records requests which are governed by the separate, federal Freedom of Information Act.)

“I have no teeth, so to speak,” Potter said.

Without another enforcement mechanism, public records disputes will continue to land in court. “I wasn’t part of the Legislature when they created this position,” Potter said, “but I think ‘wasn’t this supposed to also assist the courts by not having those lawsuits?’”

While she doesn’t want her critique of the position’s minimal authority to diminish the importance of the things she can do, renewed interest from lawmakers has Potter feeling optimistic that her role, and public records law, could see some statutory improvements. The Joint Judiciary Committee is considering public records requests as an interim study topic for the legislative off-season.

“I’m always trying to do research,” Potter said, looking at best practices and what other states do, in case the Legislature calls on her for input.

Fees, fees and more fees

Complaints about fees are common, Potter said. The biggest bill to cross her desk was $3,900 but her predecessor fielded a complaint from a requestor who was charged $6,000, she said.

While state government has rules setting uniform procedures and fees for fulfilling public records requests, Potter said, unfortunately those don’t apply to local government entities. “When I work with cities and towns, I always provide them the state’s [rules],” for reference, Potter said.

But without a required fee schedule at the local level, Potter said, “it feels like they pull a random number, and in all honesty, with some of them, it feels like they’re just trying to deter people from asking for [records], which is very frustrating for me.”

WyoFile regularly encounters such custodian-to-custodian variations firsthand, but rarely as strikingly as when we made identical requests to all 23 of Wyoming’s sheriffs for an investigation into deaths in county jails. Raw numbers on jail deaths weren’t hard to get for the most part, but disparities emerged when WyoFile filed a follow-up request for the times jail staff had intervened to save an inmate’s life. Most counties fulfilled the request for free, a few denied the request altogether and several charged fees ranging from $25-$270.

In Colorado, governments and agencies can’t charge requesters more than $41.37 an hour to research, retrieve and compile public records — a rate that’s adjusted for inflation every five years.

Resource challenges

While Potter stands by the importance of open and transparent government, she’s also sympathetic to the challenges local governments face. “We really are a state that has somewhat limited resources,” Potter said.

In small rural communities you can have one public official wearing multiple hats, Potter said, and “they may or may not have the technology … to be able to pull that information readily.”

Because of those limitations, some governments struggle to fulfill requests within the 30 days required by law, which can be frustrating to both parties.

When negotiating timelines, “I try to work with both sides to see the other folks’ side,” Potter said. “In a lot of cases, it’s not that they don’t want to provide it. It’s just like, ‘Oh my gosh, you want this like yesterday and that’s not even feasible.'”

Statute grants government entities grounds to deny a request if it interferes “with the regular discharge of the duties of the governmental entity.” When that’s the issue, Potter said she works with requesters to adjust the scope of the request to get them at least some of what they want.

Potter even faced her own challenges fulfilling WyoFile’s request for all complaints filed to the ombudsman since the position’s 2019 inception. There have been three different people in that role, each with their own document management systems. And while most complaints come in via an online form, others are emailed directly, mailed as hard-copy letters  or communicated on the phone. Potter’s initial response only included records that originated as online complaint forms, which WyoFile agreed would suffice given our desire to get a general sense of the variety of complaints.

Who complains about what?

While public records requests are a staple of the Fourth Estate, only a handful of journalists were represented in the complaint forms shared with WyoFile. There were also only a couple of lawyers seeking assistance.

Complaints about fees, as mentioned earlier, were a common theme. Several people had their requests denied by police agencies who deemed the release of the records to be “contrary to public interest.”

Those can be challenging disputes to resolve, Potter said. A WyoFile request for a settlement, in a lawsuit against Albany County, for example, was initially denied because releasing the documents in full “would affect the future government operations of a Wyoming Governmental entity and cause substantial injury to the public,” court documents filed on behalf of the county stated. Ultimately, WyoFile got the settlement agreement through the court process.

There also was a rash of complaints from people requesting election records, which Potter said were likely connected to “how the overall society views elections and the integrity of them.”

Their requests were denied because they were asking for statutorily protected information. Potter responded, she said, by helping fine tune their requests.

They wanted information that would identify how individuals voted, Potter explained, but “by state statute, we protect the voter. But there are certain portions that can be released.”

Several people also struggled to get records about themselves or their family members.

One of Potter’s early cases was a mother seeking police records detailing her son’s death in an auto wreck. “She was just trying to get records for closure,” Potter said, “and I remember thinking, ‘Oh my gosh, I feel like the records are very instrumental in her being able to have full closure. But at the same time, I’m like, ‘Oh my gosh, that’s gonna traumatize her.'”

Ultimately, Potter was able to get her the records. “She was very much appreciative, and she said that it gave her a sense of calm,” Potter said.

Beyond loosely tracking the impact of her work in her own spreadsheet, the Legislature doesn’t require her to report the outcome of complaints or how often they result in fulfilled requests.

It’s something Potter said she’d like to implement on her own.

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.

This story was posted on March 20, 2025.

Below is information WyoFile boxed to accompany the story above.

Resources:

An explanation of the Wyoming Public Records Act

Public records ombudsman website with information about the complaint process

Public records custodian contact list including state agencies and local government entities