Action Comm. for Transit, Inc. v. Town of Chevy Chase

• Decision Date: 01 September 2016
• Docket Number: Sept. Term, 2015,No. 1204,1204
• Citation: 229 Md.App. 540,145 A.3d 640
• Parties: Action Committee for Transit, Inc. et al. v. Town of Chevy Chase
• Court: Court of Special Appeals of Maryland

229 Md.App. 540

145 A.3d 640

Action Committee for Transit, Inc. et al.

v.Town of Chevy Chase

No. 1204

Sept. Term, 2015

Court of Special Appeals of Maryland.

September 1, 2016

Argued by: Mark I. Bailen & James F. Romoser (Elliot J. Feldman, Peter C. Whitfield, Baker Hostetler, LLP on the brief) all of Washington, DC, for Appellant.

Argued by: Victoria M. Shearer (Kevin Karpinski, Karpinski, Colaresi & Karp, PA on the brief) all of Baltimore, MD, for Appellee.

Panel: Woodward, Kehoe, Robert A. Zarnoch, (Retired, Specially Assigned), JJ.

Kehoe, J.

The Maryland Public Information Act (the “MPIA”)¹ permits government agencies to charge a reasonable fee for expenses incurred in the course of responding to a request to inspect public records. See § 4-206 of the General Provisions Article (“GP”), Md. Code Ann. (2014). The MPIA also allows an agency to waive fees upon the request of an applicant if, “after considering the applicant's ability to pay and other relevant factors, the official custodian determines that the waiver would be in the public interest.” GP § 4-206(e)(2). The dispositive issue in this appeal is whether an official custodian may take a community organization's past criticisms of the agency into account in deciding whether granting the organization's fee waiver request is in the public interest.

The Action Committee for Transit (“ACT”) and Benjamin Ross appeal from a judgment of the Circuit Court for Montgomery County in favor of the Town of Chevy Chase.² ACT and Ross assert that the Town violated the MPIA when it denied their requests for waivers of fees that the Town proposed to charge them for responding to requests for copies of certain Town records. The circuit court concluded that the Town did not violate the Act and entered judgment accordingly. ACT and Ross present two issues, which, for purposes of analysis, are best expressed in terms of whether the circuit court erred in granting summary judgment to the Town as to the claims of ACT on the one hand, and Ross on the other.³

We will vacate the judgment of the circuit court and remand this case for further proceedings.

BACKGROUND

“In cases interpreting an MPIA request, facts necessary to the determination of a motion for summary judgment may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admission of facts, stipulations and concessions.” Prince George's County v. The Washington Post Co. , 149 Md.App. 289, 304, 815 A.2d 859 (2003) (internal quotation and citation omitted). Our summary of the facts is drawn from those sources.

ACT is a non-stock, non-profit organization that advocates for public transportation in Montgomery County, Maryland. Ross is a published author who has written extensively in print and electronic media about issues regarding the Purple Line. He lives in Bethesda. The Town is a Maryland municipal corporation and, as such, is subject to the MPIA. Todd Hoffman, the Town Manager, is the official custodian of the Town's public records. See GP § 4-101(f).⁴

The controversy between the parties concerns the Purple Line, a proposed light rail public transit system that, if constructed, will extend from Bethesda to New Carrollton. The Purple Line is a multi-billion dollar project that is proposed to be funded through a combination of federal, State, local, and private sources.⁵ Current plans call for a portion of the Purple Line to be located within in a former railroad right-of-way which is currently used as a linear park known as the Georgetown Branch Trail or the Capital Crescent Trail. Part of this trail is located within the Town. Town residents and property owners will be directly affected by the construction and operation of the Purple Line. The Town opposes the project.⁶

ACT and Ross allege that, in 2008, and as part of its effort to oppose construction of the Purple Line, the Town retained the law firm of Sidley Austin and a civil engineer to review the Maryland Transit Administration's Draft Environmental Impact Statement for the Purple Line. ACT and Ross allege that the Town spent approximately $434,000 in that effort. ACT and Ross further allege that in 2014, the Town retained the law firm, of Buchanan Ingersoll & Rooney (the “Buchanan Firm”), which in turn subcontracted with two lobbying firms, Chambers, Conlon & Harwell, LLC (the “Chambers Firm”) and Alexander & Cleaver, P.A. (the “Alexander Firm”). The Town also retained the public relations firm Xenophon Strategies. All four firms were retained to represent the Town's interests in lobbying both the federal and state governments to deny funding for the Purple Line. The Town paid the Buchanan Firm $20,000 monthly for its services.

Early in 2014, the Washington Post and other news sources published several articles detailing the Town's relationship with the four firms, including some details on the monthly fees the Town paid for the firms' services. Additionally, an article in the Washington Post reported that one of the partners in the Buchanan Firm was Robert L. Shuster, whose brother, Bill Shuster, is the chair of the Transportation and Infrastructure Committee of the United States House of Representatives.⁷ Spurred by the information contained in these articles, ACT and Ross sought access to the Town's records pertaining to the Town's relationship with these firms. To that end, both ACT and Ross filed a series of MPIA requests with the Town.

ACT's first request was submitted in February, 2014. ACT sought documents regarding the Town's relationship with the Buchanan Firm; it did not request a fee waiver. The Town provided copies of all non-privileged documents that were responsive to the request without charge because the time spent by Town staff in responding was less than two hours. See GP § 4-206(c) (“The official custodian may not charge a fee for the first 2 hours that are needed” to respond to a request to inspect public records.).

ACT filed two additional requests in April. The first sought documents pertaining to the Town's relationship with the Chambers and Alexander Firms, as well as any additional documents pertaining to the Buchanan Firm. The second request sought access to privileged documents relating to the Buchanan Firm and documents concerning the Town's relationship with Xenophon Strategies.

In response to the first April request, Hoffman, the Town Manager, stated that the Town staff would begin searching for documents responsive to the request upon ACT's deposit of $700, noting that it would not provide the two hours of free research because ACT's request was on the same general topic as its February request. As to the second April request, Mr. Hoffman stated that it would provide two hours of free research, but still required a deposit of $250 before it would begin research on the requested documents.

ACT then requested a fee waiver for both April requests. The Town denied the waiver request on April 23, 2014. By way of explanation, Mr. Hoffman stated that “[i]t is anticipated that the Town will expend a significant amount of time researching and processing [t]he requests.”⁸

On May 21, 2014, ACT submitted another request for documents, asking for substantially the same information sought in the April requests. Meriam Schoenbaum, a part-time news blogger, submitted the request on ACT's behalf, requesting a fee waiver based upon ACT's status as a non-profit and its intent to disseminate the information, and her own status as a journalist.⁹ The Town denied Ms. Schoenbaum's request for a fee waiver on June 20, 2014 on both grounds. By way of explanation, the Town's letter stated that: “In your request, you outline your arguments in support of a waiver of all fees .... Please be advised your request for a waiver has been considered and denied.” The Town further stated that it would not provide the two hours of free research because the previous request filed by ACT related to the same general topic.

This brings us to the two MPIA requests that are at issue in this appeal: ACT's request dated October 15, 2014 (the “ACT Request”), and Ross's request, which was one of two filed by him on November 10, 2014.

The ACT Request sought:

copies of public records relating to contracts, agreements, and communications between [the Town] and the four firms the Town retained to provide services in relation to the Purple Line public transit project. ACT also seeks full minutes of closed sessions held by the Town Council .... ACT makes this request in order to promote the public's understanding of the Town and the conduct of its public officials in conducting public business relating a major public infrastructure project. ACT intends to contribute significantly to the public's understanding by making public the requested records and the information the records contain.

As part of its request, ACT sought a waiver of fees on three grounds:

(1) it was entitled to a fee waiver because “the information requested will serve the public interest and contribute significantly to the public's understanding of the business, activities, and public-money expenditures of a government body related to a major public infrastructure project”;(2) it was not seeking the information for any commercial purpose; and

(3) ACT did not have the financial resources to pay any fee associated with its request because it was a grassroots, public interest organization run by volunteers, and because its charter requires that any assets to be donated to a 501(c)(3) charitable organization upon dissolution. However, ACT did not attach any documentary support for these assertions.¹⁰

On October 27, 2014, counsel for the Town responded to ACT. First, the Town denied ACT's request for a fee waiver. By way of explanation for the denial, counsel stated:

As you know, the [MPIA] authorizes the Town to charge a reasonable fee for making copies and a reasonable fee for researching its records. In your request, you outline your arguments in support of a waiver of all fees associated with the

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