https://www.courts.state.md.us/data/opinions/coa/2018/67a17.pdf

Local regulations cannot exempt from disclosure records otherwise releasable under the PIA; the location of a document is not dispositive of its status as a public record; and the trial court has discretion to choose the method of review that will allow it to determine whether an agency’s claimed PIA exemption is applicable to the disputed documents.

Summary of Court’s ruling

Agency denied employee’s PIA request for notes from her supervisor on the grounds that some of the notes were kept in the supervisor’s private journal – and therefore did not constitute “public records” under the PIA – and others were protected as “personnel records” under a County ordinance.  Agency also asserted that the notes constituted attorney work product, and were therefore protected by the PIA’s agency memoranda exception.  The Court held that the County regulation could not be invoked to protect records that would otherwise be disclosable under the PIA, and that the mere location of information was not dispositive of its status as a public record.  The Court also held that a trial court cannot rely upon an agency’s conclusory statements about the application of a PIA exemption to a disputed record, but must instead conduct a review to determine if the exemption actually applies.  The trial court has discretion to choose among three methods of review: 1) examining an agency’s testimony and affidavits about the disputed documents and the applicable exemptions; 2) requiring the agency to produce a Vaughn index, i.e., an itemized index of the documents and the applicable exemptions; and 3) conducting an in camera review of the documents themselves.  In choosing the appropriate method, the trial court should consider several factors, including the volume of the requested records, judicial economy, whether the agency’s evidence is conclusory, whether the agency has shown bad faith, the nature of any disputes over the content of the documents, whether the agency has proposed in camera review, and the public interest in disclosing the documents.

Note: the Court of Appeals vacated the decision of the intermediate appellate court – Lamson v. Montgomery County (unreported Ct. of Sp. App., No. 892, Sept. Term, 2016; filed August 25, 2017) 2017 WL 3668171 – and remanded the case to that court with instructions to remand the case to the trial court for proceedings consistent with this opinion.

https://www.courts.state.md.us/sites/default/files/unreported-opinions/0918s15.pdf

Agency has burden of demonstrating with particularity: 1) the applicability of claimed PIA exemptions to the specific records/portions of records that it withholds; and 2) that redacting/severing exempt information from non-exempt information is not an option for each of the withheld records.

Summary of Court’s ruling:

Police department withheld 748 internal affairs reports that were responsive to a PIA request for all reports compiled over the span of a decade; the department claimed various PIA exemptions for withholding the records in bulk, including the personnel records exemption, the investigatory records exemption, and the agency memoranda exemption.  Reiterating that the PIA’s exemptions are to be construed narrowly and that the PIA favors severability of confidential information from otherwise disclosable information, the Court found that the department had failed to demonstrate that the reports could not be produced in a redacted form that protects personnel information.  Unlike previous cases dealing with the personnel records exemption – wherein the PIA request at issue was directed to a specific internal affairs file such that no amount of redaction could sanitize the record of individual identifying information – the PIA request here was directed to a large number of reports which might be producible in an aggregated and sanitized way that adequately protects individual information. With regard to the claimed discretionary exemptions – i.e., the investigatory exemption and agency memoranda exemption – the Court found that the department had not demonstrated with particularity why withholding each of the records was in the public interest, and why each record could not be produced in redacted form. The Court remanded the case to the trial court to determine whether all of the information in the reports was indeed exempt, and/or whether exempt information was severable from non-exempt information.

Note: this case is related to two previous cases: Glass v. Anne Arundel County, et al., unreported Ct. of Sp. App., No. 2306, Sept. Term 2011 (filed May 28, 2013); and Glass v. Anne Arundel County, 453 Md. 201 (2017), aff’ing unreported Ct. of Sp. App., No. 185, Sept. Term 2015 (filed Mar. 9, 2016).

https://www.mdcourts.gov/sites/default/files/unreported-opinions/1491s16.pdf

An inmate sought audio recordings of telephone discussions he had while in prison.  Prison denied that any such records existed.

Summary of Court’s rulings:

A custodian obviously cannot produce records that do not exist.  Here, there was no evidence that the requested audio recordings had ever existed, and the Prison appropriately informed the inmate that the records he requested did not exist.

https://www.courts.state.md.us/sites/default/files/unreported-opinions/0791s16.pdf

Agency properly withheld a variety of documents pertaining to former employee’s termination.  The documents were withheld under two PIA exemptions: 1) the “other law” exemption in GP § 4-301(1), which applied to records that were confidential under State law and under the attorney-client privilege; and 2) the inter/intra-agency memoranda exemption in GP § 4-344, which applied to records that were protected by the deliberative process privilege and the attorney work product privilege.

Summary of Court’s rulings:

Employee sought records from her previous employer pertaining to her termination.  Agency properly withheld documents, including draft “position statements,” that pertained to the related investigation by the Maryland Commission on Civil Rights (“MCCR”).  Those documents were confidential under State law governing the MCCR process, and were therefore exempt under the PIA’s “other law” exemption in GP § 4-301(1).  The agency’s draft position statements were also properly withheld under the attorney work product privilege and the deliberative process privilege, both of which fall under the exemption in GP § 4-344 for intra/inter-agency memoranda.  Certain of the agency’s internal communications regarding the termination were also properly withheld under the deliberative process privilege.  Withholding such records encourages “open and frank discussions,” which is a sufficient public interest for withholding them.  Finally, the agency properly withheld a draft settlement agreement because it was protected by the attorney-client privilege.  Accordingly, it was exempt under the PIA’s “other law” exemption in GP § 4-301(1).

http://www.courts.state.md.us/appellate/unreportedopinions/2017/1444s16.pdf

The PIA sets time limits on a response by the Governmental unit, but the law says nothing expressly about the effect of non-compliance with those limits.

Summary of Court’s rulings:

The agency did not deny the requester’s right to inspect and copy the requested records, but assessed a fee in accordance with the PIA. Although there was a delay in responding, there is no clear consequence under the statute for a delay in providing the records.

http://www.courts.state.md.us/appellate/unreportedopinions/2017/0892s16.pdf

Agency must explain the reasons for its denial of a PIA request; local law may not protect supervisory notes in a personnel file that are otherwise available to a person in interest.

Summary of Court’s rulings:

Employee sought various records from her employer. She challenged the reasons given by the agency for the items that were not provided and complained that her supervisor’s notes had been removed from the personnel file that was provided. The Court found that the agency provided adequate reasons for most of the denied information, but that the supervisor’s notes, which resided in the employee’s personnel file, should not have been removed and should have been provided to the employee.

http://www.mdcourts.gov/opinions/cosa/2017/1069s16.pdf

Inmate obtained information several years after conviction through a PIA request. Information should have been provided during criminal proceedings, even though they were in the possession of investigators and not prosecutors.

Summary of Court’s rulings:

The due diligence requirement that applies to criminal defendants does not encompass a requirement that a defendant file a PIA request with the police (or other agency that reports to the prosecutor) seeking information that the State is required to disclose pursuant to Brady v. Maryland and Rule 4-263. A criminal defendant should be able to rely upon the State to comply with its Brady and discovery obligations. This disclosure obligation exists even as to evidence “known only to police investigators and not to the prosecution.”

http://www.mdcourts.gov/opinions/coa/2017/20a16.pdf

Agency must perform reasonable search for records under the PIA, and reasonableness is measured by the relevant circumstances; an agency remains the custodian of public records that it controls even when the records are not within the agency’s physical custody.

Summary of Court’s rulings:

When a government agency stores records with another entity, but retains control (albeit not physical custody) of those records, the agency remains responsible for responding to requests for access to those records under the Public Information Act (“PIA”). In responding to a PIA request, an agency must undertake a reasonable search in a good faith effort to locate all records responsive to the request. The reasonableness of the search is not measured by whether it captures every potentially responsive record, but is considered in light of all the relevant circumstances, including the nature of the request and the willingness of the requestor to focus the request on likely sources of responsive records. Records related to an investigation of alleged employee misconduct (e.g., records gathered as part of an investigation by the internal affairs division of a police department) fall within the “personnel records” exception of the PIA if the records are part of an investigation of a specific identifiable employee, whether or not the records name that employee.

Note: the Court of Appeals affirmed the intermediate appellate court’s decision—Glass v. Anne Arundel County (unreported Ct. Sp. App., No. 185, Sept. Term, 2015; filed March 9, 2016) WL 903594

http://mdcourts.gov/opinions/coa/2017/63a16.pdf

To invoke the confidential commercial information exemption, an agency must consider whether the information is customarily released to the public and, if not, whether any portions of the public record were disclosable by redacting the exempt information.

Summary of Court’s ruling:

To determine whether commercial information that an entity voluntarily provided to the government falls within the Public Information Act’s confidential commercial information exemption, the Court of Appeals adopted the test set forth in Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992), which requires an agency to inquire whether the information is customarily released to the public by the person volunteering it.   When applying the Critical Mass test, sufficient information regarding the contents of the record must be gathered to determine whether any severable portions were disclosable under the PIA.

Note: the Court of Appeals disagreed with the intermediate appellate court’s decision; in Amster v. Baker, 229 Md. App. 209 (Ct. Sp. App. 2016), the Court of Special Appeals allowed the entire record to be withheld.

http://mdcourts.gov/appellate/unreportedopinions/2017/0690s16.pdf

Copy of executed search warrant can be provided to a requester once the investigation is closed, but when an agency cannot locate the record, it cannot be forced to produce it.

Summary of Court’s rulings:

The time for sealing the search warrant had long expired and appellant was entitled to a copy of the search warrant at issue. The dilemma, however, is that the State’s Attorney’s Office was unable to locate a copy of the search warrant. “Obviously, a custodian cannot properly be ordered to produce records under the Act when those records simply do not exist.” And the agency’s search need only be reasonable, it does not have to be exhaustive.

http://mdcourts.gov/opinions/cosa/2016/1204s15.pdf

Denial of fee waiver request was arbitrary and capricious, because governmental unit did not base its denial on reasonable concerns, but appeared to object to the requester’s prior disagreement with the town’s decisions.

Summary of Court’s rulings:

When presented with a waiver request, a custodian must consider the ability of the applicant to pay the fee and other relevant factors to decide whether the waiver would be in the public interest. See GP § 4-206(e)(2). When a custodian’s decision to deny a waiver request is appealed, the court must have sufficient information before it to satisfy itself that the custodian’s decision was not arbitrary or capricious. The case did not reach the issue of waivers based on indigence.

http://www.courts.state.md.us/appellate/unreportedopinions/2016/1233s14.pdf

Damages may be available when a custodian knowingly and willingly fails to comply with the requirements of the PIA.

Summary of Court’s rulings:

It is for the circuit court in the first instance to determine whether a requester has satisfied his burden of proving actual damages in connection with the agency’s responses to his PIA request. The claim for damages was not rendered moot by the agency’s belated production of the requested documents. The Court vacated the portion of the circuit court’s judgment finding the damages claim moot and remanded for further proceedings to address them.

http://mdcourts.gov/opinions/coa/2016/87a15.pdf

The Maryland Public Information Act prohibits disclosure of information that reveals the comparative value of abandoned property accounts. A requester cannot always demand that the information be provided in a particular chronology.

Summary of Court’s rulings:

A requester is not entitled to information from the Comptroller’s database beyond that which the Comptroller must publish pursuant to law. This means that the Comptroller could not disclose the incremental information afforded by ordering the list of accounts based on the values, because a value-ordered list “discloses incremental financial information about the claim beyond the information the Abandoned Property Act requires the Comptroller to disclose. In addition, a list of the top 5,000 claims reveal[s] additional individual financial information, namely that such 5,000 claims are more valuable than all other claims valued over $100 that the Comptroller is required to disclose.http://mdcourts.gov/opinions/coa/2016/87a15.pdf

Note: The Court of Appeals affirmed the decision of the intermediate appellate court—Comptroller of Treasury v. Immanuel, 216 Md.App. 259 (Ct. Sp. App. 2014); see also Immanuel v. Comptroller of Treasury, 225 Md. App. 581 (Ct. Sp. App. 2015).

http://www.courts.state.md.us/opinions/coa/2016/48a15.pdf

Application of the exemption under the PIA that allows denial of records that would cause substantial injury to the public interest includes redaction of the information that should not be disclosed.

Summary of Court’s rulings:

Although the PIA promotes disclosure, a public agency may refuse to disclose information that would “cause substantial injury to the public interest”. Under this standard, the State Department of Health and Mental Hygiene was authorized and justified in denying a request for the names of owners, administrators, and medical directors on applications for approval of surgical abortion facilities.

http://mdcourts.gov/appellate/unreportedopinions/2015/1577s14.pdf

An agency may refer a requester to the proper custodian when the agency does not have physical custody of the records and also does not have control over the records and, therefore, is not the official custodian of the records.

Summary of Court’s rulings:

Agency directed requesters to a federal agency that was likely the official custodian of the case files regarding federal prosecutions of requesters.

http://mdcourts.gov/opinions/coa/2015/84a14.pdf

Internal affairs files of an officer’s alleged misconduct are protected as personnel files and exempt from disclosure.

Summary of Court’s rulings:

No amount of redaction would enable an agency to comply with a request for the personnel records of a specific State employee because, even if “identifying information” was redacted, the documents provided would still constitute the personnel records of the individual who was the subject of the request.

Note: The Court of Appeals disagreed with the Court of Special Appeals’ ruling in Dashiell v. Maryland State Police Dept., 219 Md. App. 647 (Ct. Sp. App. 2014).

http://www.mdcourts.gov/opinions/coa/2010/26a10.pdf

The official custodian has a responsibility to direct a request to the person with physical possession of the requested records.

Summary of Court’s rulings:

Warden of correctional facility was “official custodian of records” under the Public Information Act, and, thus, not authorized to direct inmate who made request for disclosure of certain public records to subordinate departments who had physical possession of the records. Warden would have complied with the Public Information Act if he had timely directed his subordinate departments to produce the requested records for the inmate’s inspection, rather than directing the inmate to resubmit his request to those entities.

http://www.mdcourts.gov/opinions/coa/2006/16a04.pdf

Inmates may seek information regarding the conditions of their confinement by using the PIA.

Summary of Court’s rulings:
The Maryland Public Information Act contains no limitations as to those persons entitled to inspect public records. State law provides that all persons are entitled to have access to public records. Thus, an inmate in a correctional institution has a right to inspect public records.

http://www.mdcourts.gov/opinions/coa/2000/117a98.pdf

Discussion of the distinction between private and public records and evaluation of various exemptions from disclosure under the PIA.

Summary of Court’s rulings:

Records of telephone calls made by the Governor and his family from telephones in the Governor’s mansion, officially named as the Government House, were not “public records” that would be subject to disclosure under the Public Information Act, but billing information for calls from government phones are public records.