Baltimore City Police Dept. v. State, 909

• Decision Date: 02 September 2004
• Docket Number: No. 909,909
• Parties: BALTIMORE CITY POLICE DEPARTMENT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

857 A.2d 148

158 Md. App. 274

BALTIMORE CITY POLICE DEPARTMENT v. STATE of Maryland.

No. 909, September Term, 2003.

Court of Special Appeals of Maryland.

September 2, 2004.

Peter Saar, Baltimore, for Appellant.

Arthur A. Delano, Jr. (Stephen E. Harris, Public Defender on the brief), Baltimore, for Appellee.

Panel: MURPHY, C.J., KRAUSER, BARBERA, JJ.

BARBERA, Judge.

This case involves a pre-trial order of the Circuit Court for Baltimore City directing that certain portions of a law enforcement officer's confidential personnel file be disclosed to a defendant in a criminal case. As we shall discuss, central to our disposition of this appeal is that the court ordered discovery of this confidential information without first conducting an in camera review of the officer's personnel file to ascertain whether it contains matters to which the defense is entitled.

This appeal was precipitated by a motion, filed by the Baltimore City Police Department ("Department"), to quash a subpoena filed by counsel for Tevonne Clark, one of two defendants in the underlying criminal case and appellee here. The subpoena sought the records of the Department's Internal Affairs Division ("IAD") concerning Detective Michael Dressel. Detective Dressel had participated in the arrest of appellee and was scheduled to testify at appellee's trial on drug charges that, in part, arose out of the arrest.

Appellee sought disclosure of Detective Dressel's personnel record because it contained information concerning an accusation by one or more officers that Dressel had been dishonest in an unrelated matter. Appellee sought the information for purposes of cross-examination of the officer at trial.

The circuit court granted in part and denied in part the Department's motion to quash. The court did not review Detective Dressel's IAD file, either alone or with counsel. Nevertheless, the court ordered the Department to disclose to appellee the portions of the IAD file that contained "any statement made by a named police witness that he [Officer Dressel] engaged [in dishonesty] in the past." The Department has appealed, challenging that order.¹ Two days after we heard oral argument in the case, we issued an order reversing the circuit court's order and remanding the case to that court with directions that it "enter orders (1) granting the `Motion to Quash and/or for Protective Order'..., and (2) quashing the subpoena duces tecum for the Department's disciplinary records." We further ordered, however, that our disposition be without prejudice to the rights of appellee and/or his co-defendant to seek appropriate relief from the circuit court pursuant to two of our prior decisions, Blades v. Woods, 107 Md.App. 178, 667 A.2d 917 (1995), and Reynolds v. State, 98 Md.App. 348, 633 A.2d 455 (1993). We stated that the reasons for our order would be explained in an opinion to follow. This is that opinion.

BACKGROUND

The parties stipulated to a joint statement of the case pursuant to Maryland Rule 8-413(b).² The statement reads as follows:

This matter arises from the criminal trials of co-Defendants Mr. Tevonne Clark and Lynwood Smith, criminal case nos. XXXXXXXXX and XXXXXXXXX. This matter is currently being heard before [] the Circuit Court for Baltimore City.

On June 12, 2003, a suppression hearing was held in the matter. During the hearing [Assistant State's Attorney ("ASA")] Rita Wisthoff-Ito moved to limit the examination of Baltimore Police Detective Michael Dressel, so as to exclude inquiries into an Internal Affairs Division (IAD) investigation of Det. Dressel.

Importantly, the IAD investigation was not related to the underlying facts of the Messrs. Smith and Clark's cases. Rather, the IAD investigation involved allegations of dishonesty unrelated to the instant case.

Counsel for Mr. Clark, Assistant [Public Defender] Margaret Teahan, opposed the ASA Wisthoff-Ito's request, and argued in favor of access. The very next day, Ms. Teahan served a subpoena duces tecum upon the Baltimore Police Department (BPD) for the production of all IAD files relating to Detective Dressel. (Exh. 1). Soon thereafter, counsel for the BPD, Peter Saar, appeared and moved to quash the subpoena duces tecum. [Ms. Teahan] has since left the Baltimore City Public Defender's Office, and her cases have been assumed by Daniel O'Connell, Assistant Public Defender.

Ruling from the bench, [the court] denied the motion to quash and ordered the production and disclosure of all IAD files relating to Det. Dressel that contained sustained findings of misconduct. In addition thereto, [the court] also ordered the production and disclosure of any IAD files containing allegations of dishonesty. In support of his decision, [the court] cited Mulligan v. State, 18 Md.App. 588, 308 A.2d 418 (1973); Robinson v. State, 354 Md. 287, 730 A.2d 181 (1999); Jorgensen v. State, 80 Md.App. 595, 565 A.2d 371 (1989); Faulk v. State's Atty. for Harford Cnty., 299 Md. 493, 474 A.2d 880 (1984); Hammen v. BCPD, 373 Md. 440, 818 A.2d 1125 (2003), and Prince George's County, Maryland v. The Washington Post Co., 149 Md.App. 289, 815 A.2d 859 (2003).

The record also contains the transcripts of the two hearings at which this matter was discussed, and from which we glean the following additional information.³ On the occasion of its initial order, the court directed the Department to disclose to defense counsel "whatever statement any police officer made about [Detective Dressel]." The parties appeared before the court the following day to discuss the Department's intended appeal and its effect upon the proceedings in the underlying criminal case. At that time, the court restated its earlier ruling, adding some clarification of it:

After hearing arguments on defendant Clark's subpoena duces tecum, pursuant to Maryland [ ] Rule 4-264 for tangible evidence before trial, and 4-265 for evidence at trial, and the motion for protective order filed by the Baltimore Police Department, the Court grants said motion for protective order in part, limiting access to the IAD files with respect to ... Michael Dressel, except that any statement made by a Baltimore City police officer that Officer Dressel engaged in dishonesty in a now completed investigation in which Officer Dressel has been exonerated shall [be] the subject of the subpoena, and that the Court relied on Mulligan versus State 18 Md.App. 588 from 1973 as to the scope of cross-examination as it relates to whether the subpoenaed information is material.

In its written order filed later that day, the court stated its ruling in slightly broader terms:

IT IS HEREBY ORDERED this 13th day of June, 2003, by the Circuit Court of Baltimore City that the Motion is GRANTED IN PART limiting access to IAD files with respect to Michael Dressel, except any statement made by a named police witness that he engaged [in dishonesty] in the past, shall be disclosed by IAD to Assistant Public Defender, Margaret Teahan, with a copy forwarded to Assistant State's Attorney, Rita Wisthoff-Ito.

From that order, this appeal was noted.

DISCUSSION

I.

Appellee's subpoena duces tecum, filed pursuant to Maryland Rules 4-264 and 4-265, sought disclosure before appellee's criminal trial of records that have been made confidential by statute, specifically Maryland's Public Information Act ("PIA" or "Act"), Maryland Code (1984, 1999 Repl.Vol., 2003 Supp.), §§ 10-611 et seq. of the State Government Article ("SG"). Our analysis of the court's action on the Department's motion to quash this subpoena begins with our review of the pertinent provisions of the PIA.

The PIA protects certain public records from disclosure. "Public record" is defined in the Act as including "the original or any copy of any documentary material that: (i) is made by a unit or instrumentality of the State government or of a political subdivision." SG § 10-611(g)(1). The parties do not dispute that the Department is a unit or instrumentality of the State such that its records come within the purview of the PIA. See Mayor & City Council of Baltimore v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 81, 617 A.2d 1040 (1993)

(stating that records created by the Internal Investigation Division of the Baltimore City Police Department are covered by the PIA).

Personnel records are included among those documentary materials that qualify as public records under the Act. Yet, personnel records are exempt from disclosure under SG § 10-616 of the Act. Specifically, SG § 10-616(a) declares: "Unless otherwise provided by law, a custodian shall deny inspection of a public record, as provided in this section." And subsection (i) provides: "(1) Subject to paragraph (2) of this subsection [, which permits disclosure to the person in interest, i.e., the employee or an elected or appointed official who supervises the employee's work], a custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information." The purpose of treating personnel records as confidential is "`to preserve the privacy of personal information about a public employee that is accumulated during his or her employment.'" 78 Op. Att'y Gen. 291, 293 (1993) (citation omitted).

The phrase "personnel record" is not itself defined in the Act. The Court of Appeals has said, however, that "the language of subsection (i) [of § 10-616] discloses what type of documents the Legislature considered to be personnel records." Kirwan v. The Diamondback, 352 Md. 74, 82, 721 A.2d 196 (1998). And, "[a]lthough this list was probably not intended to be exhaustive, it does reflect a legislative intent that `personnel records' mean those documents that directly pertain to employment and an employee's ability to perform a job." Id. at 82-83, 721 A.2d 196.

The Department asserts that IAD's file concerning its investigation into allegations of dishonesty on the part of Detective Dressel qualifies as a...