Caffrey v. Dept. of Liquor Control, No. 127

• Court: Court of Appeals of Maryland
• Writing for the Court: HARRELL.
• Citation: 370 Md. 272,805 A.2d 268
• Parties: Anthony G. CAFFREY v. DEPARTMENT OF LIQUOR CONTROL FOR MONTGOMERY COUNTY, Maryland, et al.
• Decision Date: 23 August 2002
• Docket Number: No. 127

805 A.2d 268
370 Md. 272

Anthony G. CAFFREY
v.
DEPARTMENT OF LIQUOR CONTROL FOR MONTGOMERY COUNTY, Maryland, et al

No. 127, Sept. Term, 2001.

Court of Appeals of Maryland.

August 23, 2002.

370 Md. 270

Cynthia E. Young, Annapolis, for petitioner

Marc P. Hansen, Chief, County Atty. (Charles W. Thompson, Jr., County Atty., Karen L. Federman Henry, Principal Counsel for Appeals, and Charles L. Frederick, Associate County Atty., on brief), Rockville, for respondents.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

805 A.2d 269

HARRELL, Judge

In 1997, Montgomery County, Maryland, solicited proposals to operate and manage a county-owned, retail off-sale alcoholic beverage store.¹ Petitioner (Anthony G.

370 Md. 271

Caffrey) submitted a proposal, but was not awarded the contract. Subsequently, Petitioner submitted requests to Respondents (the Montgomery County's Department of Liquor Control, Board of License Commissioners, Office of Procurement, and Ethics Commission) under the Maryland Public Information Act ("the MPIA"), Maryland Code (1999 Repl.Vol., 2001 Supp.), State Government Article, §§ 10-611-10-628 ("MPIA §§ 10-611-10-628"),² for inspection

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of various documents relating to the relevant proposal and selection process. Respondents produced some of the documents, but withheld others, citing various privileges and grounds for denial available under the MPIA

Petitioner, in early 2000, filed an action in the Circuit Court for Montgomery County seeking a review of Respondents' denials of his requests to review the withheld documents. Respondents subsequently released the documents requested by Petitioner, but filed a motion for summary judgment requesting that the Circuit Court uphold their prior decisions not to disclose the disputed documents "as reasonable and justified at the time." Petitioner, in response, filed a cross-motion for summary judgement seeking an "award of attorney's fees and actual and punitive damages in accordance with the [M]PIA" based on Respondents' initial denials and the necessity to initiate the legal action to obtain disclosure of the documents.

In the first phase of an agreed upon bifurcated procedure, the Circuit Court held, on 30 October 2000, that the Department of Liquor Control for Montgomery County ("the Department") was immune from suits for damages, including counsel fees, under Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504.³ As a result, the Circuit Court refrained from determining whether the Department erred in withholding nineteen documents from Petitioner. With regard to the remaining documents withheld by the Board of License Commissioners ("the Board"), the Office of Procurement, and the Ethics Commission, the Circuit Court ruled that Montgomery County Charter, § 505⁴ did not waive the asserted attorney-client or deliberative executive (interagency) privileges protected under the MPIA and that, therefore, Respondents were entitled to withhold certain documents pursuant to those privileges. After considering each document individually, the Circuit Court found that six documents were withheld properly and that two documents were withheld improperly from Petitioner.

Subsequently, in the second phase of the proceeding, held on 17 January 2001, the Circuit Court denied Petitioner's motion for counsel fees and costs. In addition, the Circuit Court also dismissed with prejudice Petitioner's request for actual and punitive damages under the MPIA.

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Petitioner appealed to the Court of Special Appeals. In particular, Petitioner challenged the Circuit Court's determinations that the Department was immune from an award of counsel fees under Md. Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504, and that Montgomery County Charter, § 505 did not waive the attorney-client privilege and the deliberative executive (interagency) privilege protected in the MPIA. In an unreported opinion, the Court of Special Appeals affirmed the decision of the Circuit Court.

We granted Petitioner's petition for writ of certiorari, Caffrey v. Dep't of Liquor Control, 368 Md. 239, 792 A.2d 1177 (2002), to consider the following questions:

Did the trial court abuse its discretion in denying an award of counsel fees and costs to Petitioner because it erred as a matter of law in its rulings concerning the disclosed documents?

A. Does the Montgomery County Department of Liquor Control, which is "immune from all suits for damages" under Courts and Judicial Proceedings Article, Section 5-504 have immunity from an award of attorney's fees and costs under the Maryland Public Information Act, State Government Article, Section 10-623(f)⁵?

B. Does the Montgomery County Charter, section 505 waive attorney-client privilege and deliberative privilege so that these exemptions cannot be asserted to sustain an otherwise permissible denial under Section 10-618 of the Maryland Public Information Act?

I. Relevant Factual Background

As described by the Court of Special Appeals in its unreported opinion in the instant case,

[i]n 1997, Montgomery County requested proposals to operate and manage county owned liquor stores. The request for proposals provided that any offeror should submit a proposal outlining a plan for the operation and management of stores, a statement of the offeror's retail business and management expertise, and a staffing plan. If an offeror received a grade of 70 percent or higher, the offeror could submit a cost proposal. The award was to be made to the offeror submitting the lowest price proposal. [Petitioner] was an offeror, and he was not awarded the contract.

On October 29, 1997, [Petitioner] filed a bid protest, and on February 4, 1998, he filed a complaint with the County Ethics Commission. The latter was based on the fact that a principal in the entity which was awarded the bid, Mr. Leonard Kligman, sat on the Board of License Commissioners. The bid protest was dismissed. Subsequently, Mr. Kligman resigned from the Board, acknowledged a violation of the ethics laws, and was reprimanded by the Ethics Commission.

Following those events, Petitioner, pursuant to the MPIA, submitted a number of requests to Respondents for inspection of various documents relating to the relevant procurement process.⁶ Respondents

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granted Petitioner access to a number of documents, but also denied Petitioner access to certain documents. More specifically, the Department denied Petitioner access to over thirty documents, the Board denied him access to three documents, and the Office of Procurement and the Ethics Commission each denied him access to four documents.

On 3 March 2000, Petitioner filed a complaint in the Circuit Court for Montgomery County against Respondents requesting that the Circuit Court "review the denials by the custodians of records for agencies and units of Montgomery County, Maryland of requests by [Petitioner] to review documents pursuant to" the MPIA. Over a month later, Petitioner filed an amended complaint in the Circuit Court. Respondents, on 17 May 2000, filed an answer to Petitioner's amended complaint. In their answer, Respondents requested that the Circuit Court "[d]ismiss [Petitioner's] ... amended complaint," "[d]eny [Petitioner] all relief requested," "[e]nter judgment in favor of the [Respondents]," and "[a]ward the [Respondents] costs and reasonable attorneys' fees."

Petitioner, on 25 July 2000, resubmitted his document requests to Respondents. The County Attorney's Office for Montgomery County, on behalf of the records custodians, granted Petitioner's resubmitted requests. As described in a letter to Petitioner from the Chief of the Division of General Counsel in the County Attorney's Office, dated 28 August 2000,

[a]lthough the original decision to deny [Petitioner] access to these documents was justified under the circumstances at the time of [Petitioner's] earlier [M]PIA requests, recent press coverage has generated the potential for larger public concern arising over the 1997 liquor store procurement, and has shifted the analysis concerning whether release of the previously denied documents to [Petitioner] would not be in the public interest. Because they have concluded that releasing these documents will help the general public better understand what transpired under the liquor store procurement, the Office of Procurement, the Board of License Commissioners, and the Department of Liquor Control have authorized this officer to release those documents.

A pre-trial conference was held on 30 August 2000, at which the hearing judge agreed to the parties' request to bifurcate the proceedings. As described in Petitioner's pre-trial statement, the parties "agreed to jointly propose a bifurcated procedure ... to focus on the threshold issue of whether the interposed [M]PIA exemptions [we]re proper." Pursuant to that procedure, "[a]fter oral argument and the Court's review and ruling on the validity of the exemptions, subsequent proceedings consistent with that ruling would follow, including proceedings as appropriate to establish [Respondents'] liability for damages."

On 13 October 2000, Respondents filed a motion for summary judgment. In that motion, Respondents argued that the Department was "`immune from all suits for damages'" (quoting Md.Code (1998 Repl. Vol.), Courts and Judicial Proceedings Art., § 5-504) and maintained, therefore, that the Circuit Court "need not address whether the [Department's] asserted exemptions to disclosure of the documents encompassed in [Petitioner's] ... [M]PIA request were appropriate because it would only be rendering an advisory opinion." Alternatively, Respondents addressed the propriety of their decisions to withhold certain documents from Petitioner and requested

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that the Circuit Court uphold those decisions "as reasonable and justified."

Petitioner filed a cross-motion for summary...