Am. Civil Liberties Union Found. of Md. v. Leopold

• Decision Date: 28 May 2015
• Docket Number: No. 85, Sept. Term, 2014.,85, Sept. Term, 2014.
• Citation: 115 A.3d 649,223 Md.App. 97
• Parties: AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, et al. v. John R. LEOPOLD, et al.
• Court: Court of Special Appeals of Maryland

223 Md.App. 97

115 A.3d 649

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, et al.

v.John R. LEOPOLD, et al.

No. 85, Sept. Term, 2014.

Court of Special Appeals of Maryland.

May 28, 2015.

Karen L. Toto & Jennifer A. Williams (Richard A. Simpson, Wiley Rein LLP, Washington, D.C.) (Deborah A. Jeon, David R. Rocah, Sonia Kumar, American Civil Liberties Union Foundation of Maryland, Baltimore, MD), all on the brief, for Appellant.

Steven F. Wrobel (Rosenberg, Martin, Greenberg, LLP, on the brief), Baltimore, MD, Andrew J. Murray (David A. Plymyer, Co. Atty., on the brief), Annapolis, MD, Robert J. Baror (Linda Hitt Thatcher, Thatcher Law Firm, LLC, on the brief), Greenbelt, MD, for Appellee.

Panel: MEREDITH, NAZARIAN, and LEAHY, JJ.^*

Opinion

NAZARIAN, J.

“Finishing second in the Olympics gets you silver. Finishing second in politics gets you oblivion.”

Richard M. Nixon¹

John R. Leopold, then the Anne Arundel County Executive, was indicted in early 2012 for misconduct in office, based in part on allegations that he used his position to compile dossiers on his potential (or at least perceived) political challengers and enemies. Some of those individuals² and the American Civil Liberties Union Foundation of Maryland (“ACLU”) (collectively “the appellants”) requested copies of the information Mr. Leopold had assembled about them from Mr. Leopold (in his individual capacity and as County Executive), and James Teare (then the Anne Arundel County Chief of Police), or the custodian of records, under the Maryland Public Information Act (“PIA”).³ Anne Arundel County (the “County”) responded, over time, to these requests on their behalf, and the appellants were dissatisfied with the County's response.

The appellants sued in the Circuit Court for Anne Arundel County. Their amended complaint alleged that Mr. Leopold, Chief Teare, and the County (collectively, “the appellees”) violated the PIA, and asked the court to compel the production of additional documents, enter a declaratory judgment, and award damages. The appellees filed a Motion to Dismiss and/or for Summary Judgment, the circuit court granted it, and this appeal followed. We agree with the appellees in large part, but we hold that the circuit court erred in dismissing Count I, in which the appellants alleged that the appellees violated the PIA by wrongfully compiling and using information about the appellants for use in Mr. Leopold's reelection campaign, and we remand for further proceedings on that count.

I. BACKGROUND

Mr. Leopold's misconduct in office was the subject of a separate criminal case,⁴ but that story sets the stage for the appellants' requests for information, the responses they received (or didn't) and from whom, and the PIA claims at issue here.

1. Mr. Leopold's conviction.

Mr. Leopold was indicted on March 2, 2012. Among other things, the Indictment alleged that he had used his Executive Protection Officers (“EPOs”)⁵ to compile information on his political opponents:

[Mr.] Leopold directed on-duty [EPOs] to create dossiers on persons he viewed as political challengers, including but not limited to, Joanna Conti and Carl Snowden. The EPOs did not consider these people to be security risks.

After a bench trial, Mr. Leopold was found guilty of two charges of misconduct while in office. The court found specifically that Mr. Leopold had wrongfully diverted County employees and resources to his election campaign, including the creation of dossiers (as we recounted in our reported opinion on appeal):

It should have come as no surprise to [Mr. Leopold] that employing on duty sworn police officers to work on his election campaign was wrongful and illegal. Section 13–303 of Article XXIV of the Maryland Code provides that an employee of a local entity may not be required to provide any political service. Section 13–105 further provides that an employee of a local entity, which Anne Arundel County is a local entity, may not engage in political activity while on the job during working hours.

* * *

[Mr. Leopold], as an individual with decades of Governmental and election experience, was beyond a doubt aware that requiring [ ] on duty police officers to perform substantial services for his reelection campaign was wrongful and illegal.

* * *

By wrongfully taking substantial advantage of free public employee help for his campaign, an asset unavailable to his opponent, [Mr. Leopold] was placing his thumb on the scales of our political system to heavily tilt it in his favor. These actions robbed Anne Arundel County citizens of the fair political electoral process they were entitled to receive.

[Mr. Leopold's] actions were done systematically during the election season of 2010. [He] committed these acts knowingly, willfully and intentionally and under color of his office as County Executive. He did so corruptly and is guilty of this offense.

Leopold, 216 Md.App. at 600–01, 88 A.3d 860. The trial court barred Mr. Leopold from running for political office in Maryland for five years, sentenced him to a brief incarceration and house arrest followed by five years' probation, and ordered him to perform 400 hours of community service and pay a $100,000 fine. This Court affirmed his conviction on appeal, although we struck that portion of his sentence that prohibited him from running for public office.

2. The information requests.

Almost immediately after Mr. Leopold's indictment, the appellants began to investigate the existence and contents of the alleged dossiers. Most importantly for our purposes, the appellants served a series of PIA requests:

• March 6, 2012 (“First Request”): The ACLU served on “Mr. John Leopold (Or Custodian of Records), Office of the County Executive,” and on “Chief James Teare (Or Custodian of Records), Anne Arundel County Police Department” a PIA request for the “Leopold dossiers”⁶ on Carl Snowden and Joanna Conti. The First Request included eleven numbered paragraphs, each seeking a category of records. The County responded by letter dated March 13, 2012 and attached a partial production.

• March 16, 2012: The ACLU served—again on Mr. Leopold and Chief Teare—the same requests as the First Request on behalf of thirteen more individuals. The County responded by letter dated March 30, 2012 and attached a partial production and supplemented its response to the First Request.

• March 23, 2012: The ACLU served on the same parties a supplemental request that named four more individuals. The County's March 30, 2012 letter also responded to this request.

• April 3, 2012:⁷ The ACLU served the same requests as to another individual. The County responded by letters dated April 25, 2012 and June 28, 2012.

• August 15, 2012: The ACLU served on the Police Department a request for all “Criminal History Records Information” as to all of the individuals named in the first four Requests. The County responded by letters dated September 27, 2012 and October 10, 2012.

3. The County's responses.

The County responded to all five requests on behalf of all of the appellees. The County's response letters attached some responsive documents, but declined to disclose anything from two discrete categories of information. First, it declined to release to the ACLU certain tape-recorded interviews of Mr. Leopold's EPOs by Major Edward Bergin (and referred to as “the Bergin tapes”). According to Major Bergin, he became suspicious that Mr. Leopold had used the EPOs for improper purposes, so he interviewed two of them in March 2011 and turned the tapes over to the Maryland State Prosecutor's Office. The County indicated in its March 30, 2012 letter that the only additional responsive documents (i.e., the Bergin tapes) were being withheld as “pertain [ing] to the pending criminal proceedings undertaken by the State Prosecutor's Office, which likely constitute evidence in that matter, and which will not be released at this time pursuant to [SG] § 10–618(f) of the MPIA.” The County ultimately provided the tapes on March 4, 2013, after Mr. Leopold's trial was complete.

Second, the County declined to provide e-mails that were (as the appellants requested) “kept by, prepared by or for, or compiled by or for” EPO personnel “concerning any individual or group, whether or not at the explicit direction of [Mr.] Leopold.” Although the County provided some responsive documents on June 28, 2012, the letter stated that the County would “continue to work on reviewing additional e-mails that may be responsive as well.” It followed up on September 27, 2012, with a letter asking the appellants to narrow the scope of the requests due to the volume of potentially responsive emails:

Each of the twenty two (22) County Executive staff employee electronic mailboxes for review includes an archived mail file and a trash file, both of which can contain anywhere from 10,000 to 15,000 or more documents to search. Consequently we are asking if you could please clarify and limit your search in some fashion to which we are able to respond.

So far as we can tell, the appellants did not narrow their requests.

4. The underlying litigation.

After the appellants filed their initial complaint on December 12, 2012, the parties exchanged letters and additional information, and the appellants amended their complaint and added Chief Teare as a defendant.⁸ They ultimately alleged three categories of PIA violations:

• Count One (against Mr. Leopold, the County, and Chief Teare): “ Improper Collection, Use, Creation and Dissemination of Government Records Containing Personal Information.” The appellants alleged that the dossiers constituted personal records under the PIA and that there was “no legitimate governmental purpose” for the appellees to create them. The appellants relied on SG § 10–624(b) and SG § 10–626 (which we discuss further below).

• Count Two (against all defendants): “Improper Denial of Access to Public Records.” The appellants alleged that the appellees violated the PIA “by failing to adequately search for responsive records, thus

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