Balt. Police Dep't v. Open Justice Balt.

• Docket Number: 20-2022
• Decision Date: 31 August 2023
• Parties: BALTIMORE POLICE DEPARTMENT, ET AL v. OPEN JUSTICE BALTIMORE
• Court: Maryland Court of Appeals

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BALTIMORE POLICE DEPARTMENT, ET AL v. OPEN JUSTICE BALTIMORE

No. 20-2022

Maryland Supreme Court

August 31, 2023

Argued: January 6, 2023

IN THE SUPREME COURT OF MARYLAND ^[*]

Circuit Court for Baltimore City Case No. 24-C-20-001269

Fader C.J. Watts Hotten Booth Biran Gould Eaves, JJ.

OPINION

Biran, J.

For more than 40 years, the Maryland Public Information Act (the "MPIA" or the "Act") has allowed records custodians, in certain circumstances, to grant requests for waivers of fees to search for, prepare, and produce records sought under the Act. The current version of the MPIA's fee waiver provision states, in part, that an official custodian may grant a requested fee waiver if, "after consideration of the ability of the applicant to pay the fee and other relevant factors, the official custodian determines that the waiver would be in the public interest." Md. Code Ann., General Provisions ("GP") § 4-206(e) (2019 Repl. Vol.). This is the first case in which this Court has considered a challenge to a custodian's denial of a request for such a fee waiver.

Respondent, Open Justice Baltimore ("OJB"), is an organization interested in investigating and publicizing reports of police misconduct. In late 2019 and early 2020, OJB filed several requests under the MPIA with the Baltimore Police Department ("BPD"), seeking records relating to citizen and administrative complaints of police misconduct, as well as department-initiated investigations of police misconduct by BPD's Special Investigation Response Team ("SIRT") and of other incidents involving uses of force. This appeal concerns OJB's requests for production of certain closed files relating to SIRT investigations and other use of force investigations. BPD provided an estimate to OJB that quoted a cost of more than $245,000 to produce 2,337 such files. OJB asked BPD to waive the fees to produce them. OJB asserted that a fee waiver would be in the public interest because the disclosure of the records would promote transparency and increase trust between Baltimore citizens and BPD. OJB also told BPD that it was "a program of a non-profit organization" and had been "deemed a public interest organization, classified taxexempt, not generating any beneficiary income."

OJB refused to narrow its request to lessen the costs of compliance and insisted that BPD waive the entire fee. BPD had questions about how OJB intended to disseminate the requested records to the public and whether the public would be able to understand the records with the redactions that would be necessary. These and other concerns led BPD to conclude that a fee waiver would not be in the public interest. BPD denied the fee waiver request in its entirety. However, before doing so, BPD did not share its specific concerns with OJB and give OJB the opportunity to attempt to address them.

OJB sought judicial review of BPD's denial of the requested fee waiver in the Circuit Court for Baltimore City. Seeking summary judgment, BPD and then-BPD Police Commissioner Michael Harrison (collectively, "BPD")^[1] submitted an affidavit from the official who decided to deny the fee waiver. That official attested that, after careful consideration of OJB's request, he had determined that disclosure of the investigation records would not aid the public in understanding what BPD was doing to address its problems concerning police misconduct. Among other things, he concluded that, given the resources already publicly available that explain BPD's efforts to improve its practices under a federally monitored consent decree, requiring Baltimore City taxpayers to pay the costs associated with providing the closed investigation files to OJB would not be in the public interest.

The circuit court upheld the denial of the fee waiver, determining that BPD's decision was not arbitrary or capricious. OJB appealed to the Appellate Court of Maryland (at the time, called the Court of Special Appeals of Maryland),^[2] which reversed the circuit court's ruling. The Appellate Court concluded that BPD failed to meaningfully consider whether disclosure of the closed investigation files would aid the public's understanding of how BPD was addressing allegations of police misconduct. Thus, the Appellate Court determined, BPD's denial of the requested fee waiver was arbitrary and capricious. BPD sought further review of the Appellate Court's judgment in this Court.

The MPIA vests official custodians with broad discretion in determining whether a requested fee waiver is in the public interest. Custodians have discretion to decide which factors in a particular case are relevant to the public interest determination (in addition to the applicant's ability to pay the fee). Custodians also have discretion to decide whether the application of all relevant factors demonstrates that a fee waiver would be in the public interest in a particular case. However, while an official custodian's discretion in these matters is broad, it is not boundless. As we explain below, in this case BPD's fee waiver denial was arbitrary and capricious because BPD failed to meaningfully consider all relevant factors in deciding whether to grant OJB's requested fee waiver. In particular, BPD failed to meaningfully consider: (1) whether the fee waiver would further the public interest by shedding light on the public controversy concerning BPD's failure to properly investigate officer misconduct; and (2) whether completely denying the fee waiver would exacerbate that public controversy by contributing to the appearance of a lack of transparency. We will order a remand to BPD to reconsider OJB's requested fee waiver in light of these and all other relevant factors, which include OJB's ability to pay the quoted fees and the cost to, and burden on, BPD to comply with OJB's requests.

I Background

We first provide a brief background of the MPIA and its fee waiver provision, and then summarize the facts and procedural history of this case.

A. The MPIA Permits Official Custodians to Charge and Waive Fees.

The MPIA states that "[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees." GP § 4-103(a). Consistent with this broad remedial purpose, the General Assembly requires that we construe the MPIA "in favor of allowing inspection of a public record, with the least cost and least delay to the person or governmental unit that requests the inspection." Id. § 4-103(b).

The General Assembly had to balance the statute's broad remedial purpose against the practical and logistical constraints on official custodians^[3] to comply with MPIA requests from multiple applicants,^[4] some of which might call for production of voluminous records. Producing a record responsive to an applicant's MPIA request can require: a search for the record; scanning and/or photocopying it; reviewing it for items that must be redacted, or may be redacted, in light of statutory provisions;^[5] making any such necessary redactions; and delivering the record to the applicant. Thus, if the number of pages of responsive records is in the thousands (or tens or hundreds of thousands), and if the records sought require significant redactions before disclosure, it likely will take many hours of work - sometimes adding up to weeks or months of work - to complete the production.

The General Assembly chose to balance these competing interests by permitting official custodians to charge applicants reasonable fees connected to the time and labor of compiling and producing the requested records. GP § 4-206(b). A "[r]easonable fee" is defined as "a fee bearing a reasonable relationship to the recovery of actual costs incurred by a governmental unit." Id. § 4-206(a)(3). The governmental unit may not charge an applicant for the first two hours "that are needed to search for a public record and prepare it for inspection." Id. § 4-206(c).

1. The Fee Waiver Provision

When the General Assembly first enacted the MPIA in 1970, it prescribed the following for fees associated with record requests:

(a) In all cases in which a person has the right to inspect any public records he may request that he be furnished copies, printouts or photographs for a reasonable fee to be set by the official custodian. Where fees for certified copies or other copies, printouts or photographs of such record are specifically prescribed by law, such specific fees shall apply.

(b) If the custodian does not have the facilities for making copies, printouts or photographs of records which the applicant has the right to inspect, then the applicant shall be granted access to the records for the purpose of making copies, printouts or photographs. The copies, printouts or photographs shall be made while the records are in the possession, custody and control of the custodian thereof and shall be subject to the supervision of such custodian. When practical, they shall be made in the place where the records are kept, but if it is impractical to do so, the custodian may allow arrangements to be made for this purpose. If other facilities are necessary the cost of providing them shall be paid by the person desiring a copy, printout or photograph of the records. The official custodian may establish a reasonable schedule of times for making copies, printouts or photographs and may charge a reasonable fee for the services rendered by him or his deputy in supervising the copying, printing out or photographing as he may charge for furnishing copies under this section.

1970 Md. Laws 1974 (ch. 698) (codified as Article 76A, § 4, of the Annotated Code of Maryland). Thus, the MPIA originally only permitted a custodian to charge reasonable fees for providing copies of...