Balt. Action Legal Team v. Office of the State's Attorney of Balt. City
| Decision Date | 17 December 2021 |
| Docket Number | No. 1251, Sept. Term, 2020,1251, Sept. Term, 2020 |
| Citation | 265 A.3d 1187,253 Md.App. 360 |
| Parties | BALTIMORE ACTION LEGAL TEAM, et al. v. OFFICE OF the STATE'S ATTORNEY OF BALTIMORE CITY, et al. |
| Court | Court of Special Appeals of Maryland |
Argued by Matthew Zernhelt (Baltimore Action Legal Team, Baltimore, MD), on the brief, for Appellant.
Argued by Wendy L. Shiff (Brian E. Frosh, Atty. Gen., Baltimore, MD), on the brief, for Appellee.
Panel: Berger, Wells, Ripken, JJ.
Between December 2019 and January 2020, appellant Baltimore Action Legal Team ("BALT") made three requests under the Maryland Public Information Act ("MPIA") to appellee, the Office of the State's Attorney for Baltimore City ("SAO"). BALT specifically requested that the SAO provide:
BALT also asked the SAO to waive the costs required to reproduce the records sought in requests #2 and #3.
The SAO denied the request for the list of 305 officers in its entirety and did not respond to the fee waiver requests accompanying the other two inquiries. Instead, the SAO informed BALT that the estimated cost of production for the records in request #2 would be approximately $15,000 and would require over 438 hours of work, and the cost of production for the records in request #3 would be $3,000.
On March 2, 2020, BALT and Open Justice Baltimore1 filed a complaint in the Circuit Court for Baltimore City against the SAO and Marilyn Mosby, acting in her official capacity as State's Attorney for Baltimore City. On August 14, 2020, the State's Attorney filed a motion to dismiss, or alternatively for summary judgment. BALT opposed and moved for summary judgment itself.
The circuit court heard arguments on the clashing motions on October 26, 2020 and took the matter under advisement. In a written set of findings and an order dated December 4, 2020, the circuit court granted summary judgment in favor of the SAO and denied BALT's similar motion.
BALT noted this appeal, raising three questions for our review, which we have reproduced verbatim:
For the following reasons, we hold that the State's Attorney's motion for summary judgment was erroneously granted because the "do not call" list is not exempt from disclosure under the Maryland Public Information Act as a personnel record or as attorney work-product. The list is also not exempt from disclosure, despite the SAO classifying it as Giglio2 or Brady3 material. Finally, we hold that the court erred in not finding that the SAO arbitrarily and capriciously denied both fee waiver requests.
On December 3, 2019, State's Attorney Marilyn Mosby publicly informed members of the State Commission to Restore Trust in Policing4 that her office maintained a list of 305 officers with what she described as "credibility issues." Apparently, these officers had, in some way, compromised their credibility such that Ms. Mosby determined the officers' status "put them in jeopardy from testifying." In its complaint, BALT noted that the existence of this "do not call" list was a major media topic given the public interest.5
After this revelation, BALT made three requests under the MPIA for the SAO to provide more information about the "do not call list." First, BALT sought a copy of the "do not call" list (or "the list"). Second, BALT sought information about investigations of City police officers that were closed during 2019, and any similar cases that had been open for over sixteen months. BALT requested a fee waiver. Finally, BALT requested records related to any criminal investigations into a specific police officer from the time he was hired by the City's police department to the date of the request. BALT, claiming that it was a tax-exempt, public interest organization, also requested a waiver of the costs the SAO asserted were necessary to compile the requested documents.
On December 6, 2019, BALT submitted its first MPIA request to the SAO's Chief of External Affairs seeking the "names, ranks, badge numbers, job assignments, and dates of hire of the individual officers" who were included on the list. Further, BALT requested "all relevant audio, video, dash cam, body warn cameras (sic ), or other form of data" as well as any public documents that had been used to create the list. On December 20, 2019, BALT inquired about the status of the request and whether they could assist the SAO in locating the records. The SAO did not respond. BALT contacted the SAO on January 7, 2020 and informed them that it did not understand why the SAO was non-compliant and that it was unaware if the SAO had requested an extension. BALT also asked about internal appeal procedures.
On January 9, 2020, Deputy State's Attorney Valda Ricks responded on behalf of the SAO by way of a letter denying BALT's request. In the letter, the SAO claimed that the requested material was exempt from disclosure because it fell under the "personnel record" exemption of the Maryland Code, General Provisions ("GP") Article, § 4-311(a). The SAO explained that this mandatory exemption applied because these records related to the "hiring, discipline, promotion, dismissal, or any other matter involving [the officer's] status as an employee." The SAO claimed that the information sought was privileged as both attorney work-product and as part of the SAO's deliberative process. Ms. Ricks also stated that the records could not be disclosed because disclosure would interfere with a "valid and proper law enforcement proceeding" under GP § 4-351(b)(1).6
BALT responded to the denial letter with a letter of its own, stating that the SAO maintained more than just personnel records and that "a blanket claim of interference with law enforcement proceedings" was not permissible under the MPIA. BALT also asked about the possible severing of any information the SAO deemed privileged and "whether all three-hundred and five officers were under active investigation." The SAO did not respond to BALT's letter.
On January 14, 2020, BALT filed a detailed second MPIA request seeking, essentially, the full investigatory files "into alleged criminal activity of officers of the Baltimore Police Department." Specifically, BALT requested all such files closed during the 2019 calendar year and any that had been open for more than sixteen months. Further, BALT requested a fee waiver, citing its status as a non-profit organization and that this information "was a matter of public concern and public safety."7
Having not received a response from the SAO after the prescribed ten-day response time found in GP § 4-203, BALT emailed the SAO on January 30, 2020 inquiring about the status of its second request and whether assistance was needed. Ms. Ricks responded on behalf of the SAO on February 4, 2020. She explained that responding to the request would take approximately Ms. Ricks estimated the total cost to be about $15,330.00 and attached a fee schedule. The fee schedule included a fee of 75.00/hour for attorneys and $15.00/hour for clerks. The SAO requested that BALT provide payment before it would begin processing the request.
BALT immediately emailed the SAO asking whether the SAO was going to redact portions of the submitted documents and if so, how long the production of the documents would take. BALT also wanted to confirm that the SAO was denying BALT's requested fee waiver. The SAO did not respond to this email nor did they respond to BALT's follow-up email sent on February 12, 2020.
BALT submitted a third MPIA request to the SAO on January 31, 2020. Like the first request, this one sought information concerning all investigations "directed at potential or alleged criminal conduct" of one named City police officer that it believed the SAO had maintained since March 2017, including the charges that were filed against that officer in January 2020. Further, BALT requested "all open and closed investigations of officer misconduct" regarding that officer since the beginning of his employment with City police department. BALT also relied on GP § 4-206(e)8 to request a fee waiver based on BALT's status as a public interest, tax-exempt organization.
On February 11, 2020, Ms. Ricks denied BALT's third MPIA request citing GP § 4-351(a)(2) and GP § 4-351(b)(1)9 , positing that disclosing those records "would interfere with a valid and proper law enforcement proceeding." Regarding other SAO investigations of City police officers, Ricks informed BALT that a preliminary search revealed nothing, but that a more thorough search would require about forty hours of time and would cost about $3,000. The SAO did not address BALT's fee waiver in its request.
In each of its response letters, the SAO suggested that...
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