City of Frederick v. Randall

• Decision Date: 28 January 2004
• Docket Number: No. 1967, No. 1965
• Citation: 154 Md. App. 543,841 A.2d 10
• Parties: The CITY OF FREDERICK v. RANDALL FAMILY, LLC, t/a The Frederick News Post, et al. The City of Frederick v. Daniel A. Trey.
• Court: Court of Special Appeals of Maryland

841 A.2d 10

154 Md. App. 543

The CITY OF FREDERICK v. RANDALL FAMILY, LLC, t/a The Frederick News Post, et al.

The City of Frederick v. Daniel A. Trey.

Nos. 1965, 1967, Sept. Term, 2001.

Court of Special Appeals of Maryland.

January 28, 2004.

Howard J. Schulman (Schulman & Kaufman, LLC, on brief), Baltimore, for appellant.

Henry R. Abrams, Kimberly A. Manuelides (Saul Ewing, LLP, on brief), Baltimore, for appellee.

Argued before SALMON, JAMES R. EYLER, and ADKINS, JJ.

SALMON, J.

After learning that Angelika Potter was running a house of prostitution in the City of Frederick ("the City"), the City Police obtained a warrant that allowed them to search Ms. Potter's home and apartment and to seize records found there. The warrant was executed on July 29, 1999; the police seized computer equipment, computer records, and numerous documents containing the names, addresses, and other data relating to Ms. Potter's customers.

The State's Attorney for Frederick County recused himself from prosecuting the Potter case due to an allegation that a relative of an employee of the State's Attorney's office worked for Ms. Potter. An Assistant State's Attorney for Montgomery County was appointed to investigate and, if warranted, bring charges. After considering the matter, charges were brought against Ms. Potter in the District Court for Frederick County.

On November 15, 2000, Ms. Potter entered a guilty plea to the charge of operating a house of assignation—a misdemeanor. As part of a plea agreement, the District Court judge struck the finding of guilt and entered a finding of probation before judgment. The only conditions of probation were that Ms. Potter pay a $100 fine, plus $55 court costs. The State agreed, as part of the plea bargain, to return to Ms. Potter all the documents and other material seized pursuant to the search warrant.

Immediately after Ms. Potter received the probation-before-judgment disposition, public interest in the documents and other items seized (hereafter "the black book") was piqued by Charlene Edmonds, who was then president of the Frederick chapter of the National Association for the Advancement of Colored People. Ms. Edmonds had been in the news because City police officers, acting on orders of the Chief of Police, R.R. Raffensberger, had improperly harassed Ms. Edmonds by placing her under police surveillance. These charges were sustained, and as a result, Chief Raffensberger was demoted one rank by the Mayor of Frederick. Following Ms. Potter's plea, Ms. Edmonds made the following allegations concerning what she perceived to be the lenient treatment that Ms. Potter received:

1. Among Ms. Potter's customers were various unnamed public officials and prominent members of the Frederick community, whose names were listed in the black book;

2. Had the police gone forward with a trial against Ms. Potter, names of the public officials and other individuals mentioned in the black book would have been revealed by evidence introduced at trial;

3. Ms. Edmonds had received an anonymous tip that Frederick City Alderman Blane Young had been protective of Chief Raffensberger [in regard to the improper surveillance charge] because Mr. Young, and others associated with him, were named in the black book;

4. According to the anonymous tip, upper echelons of the police department acted to cover up the fact that these names were contained in the black book in exchange for Mr. Young's support of upper echelon officers in the department.

On November 22, 2000, the Randall Family, LLC, t/a the Frederick News Post ("News Post"), by Steven Miller, a News Post staff writer, made a request for copies of the records seized in the police raid.¹ The request read:

Please make available for inspection and copy evidence related to State of Maryland v. Angelika Elisabeth Potter (6U-21769 Frederick County District Court).

The evidence was seized by police on July 29, 1999[,] at 8765 Treasure Ave., Walkersville[,] MD. and at 350A Prospect Blvd., Apt. 104, Frederick[,] MD.

Items requested for inspection and copy include the content of several address book computer programs used as a client list; record keeping books; spiral notebooks used as appointment books; and contents of Microsoft Money program used for business accounting.

The request was addressed to the City and was made pursuant to the Maryland Public Information Act ("MPIA"), which is codified in sections 10-611 through 10-629 of the State Government Article ("SG") of the Maryland Code (1984, 1999 Repl.Vol.). On November 27, 2000, the Associated Press ("the AP") also made a MPIA request of the City, which was, in all material respects, similar to that made by the News Post. Daniel Trey, a resident of Thurmont, Maryland, on January 3, 2001, also filed a MPIA request, which was modeled after the earlier ones by the AP and the News Post.

Debra Borden, who was designated by the City as a representative of the custodian of the records seized by the police (and also an Assistant City Attorney for Frederick), denied all three MPIA requests. In doing so, she relied on section 10-618(f)(1)(i) of the MPIA, which reads (f) Investigations.—(1) Subject to paragraph (2) of this subsection, a custodian may deny inspection of: (i) records of investigation conducted by ... a police department....

The denial letters all included the following paragraph:

The items you requested are records of an investigation conducted by the Frederick Police Department for a law enforcement purpose, therefore we may lawfully deny your request. In accordance with § 10-614(b)(3)(ii) of the Public Information Act, you are hereby notified of the available remedies for review of this decision with respect to the denied material. You may, but are not required to, file an administrative appeal with this agency upon request. Public Information Act § 10-622. In addition, you may file an action with the Circuit Court for Frederick County, Maryland to enforce the provisions of the Maryland Public Information Act under the authority granted in § 10-623 of the Act.²

The News Post and the AP promptly filed a joint Administrative Appeal in which they contended that the City had no right, under the MPIA, to deny them access to the contents of the black book. The request for administrative hearing was filed pursuant to the City of Frederick's Public Information Act Rules and Regulations.

Lynn Board, the City Attorney, was named as the MPIA hearing officer by the mayor. Ms. Board conducted a hearing on December 22, 2000, concerning the denial of the requests. Debra Borden, the Assistant City Attorney and the person who had denied the request, represented the City at the hearing. Ms. Borden, in addition, was the most important witness who testified at that hearing.

During the presentation of the City's case-in-chief, Ms. Borden said that the City denied the MPIA request pursuant to the "investigative records exception" set forth in section 10-618(f)(1)(i) of the statute. She gave no details. After the City rested its case, counsel for the News Post moved for judgment on the ground that the City's reasons for denying the request were inadequate as a matter of law. Ms. Borden then asked to reopen the City's case because she did not "feel like [she had] testified. [She had] made legal arguments." She also said that reopening was justified because it was "difficult to be the lawyer and the witness at the same time." The motion to reopen was granted.

Ms. Borden then testified that prior to denying the MPIA request she looked at all the documents in the police investigation file concerning Angelika Potter. She opined that the police investigation exception to the MPIA applies even if the police investigation file has been closed. She also said that prior to denying the MPIA requests she considered (1) what is in the public interest in terms of releasing these types of documents and (2) what effect disclosure would have upon the public interest. In her opinion, the purpose of the exception set forth in 10-618(f)(1)(i) "is to give custodians the leeway to make these difficult decisions and to give them the authority to do it based on knowing what's in the documents."

It was established that the "official custodian" of the records in question was Chief Raffensberger. Therefore, prior to the denial of the request, Ms. Borden talked to the chief. She could not remember, however, exactly what Chief Raffensberger said. She did recall that the police chief discussed with her the "ramifications of releasing" names of people who were on Ms. Potter's customer list.

In the course of cross-examination, Ms. Borden cited several other justifications for her decision to deny the MPIA request, viz: Disclosure would provide needless publicity to cooperating witnesses; disclosure would be unfair to the parties subject to the investigation and would violate those persons' rights to privacy; and disclosure would not contribute significantly to the public's understanding of government, would hinder future law enforcement proceedings, and would reveal sources of police information.

The News Post called its managing editor, Michael Powell, as its only witness. Mr. Powell testified that access to copies of the seized records was necessary to investigate Ms. Edmonds's allegations concerning Chief Raffensberger and in particular to determine "whether there was a connection ... with officials or public figures in Frederick County and with how... [the Potter] case was handled."

The AP called Denise Cabrerra, the Chief of its Baltimore Bureau. On direct examination, the following exchange occurred:

As a result of watching and covering the story of allegations of ... personal surveillance [of Ms. Edmonds] and the fact that there had been some disciplinary action against the police chief, in that case, we [the AP] wondered whether her allegations about the black book were also true because, initially, the allegations of the...