Cranford v. Montgomery County

• Decision Date: 01 September 1983
• Docket Number: No. 103,103
• Citation: 481 A.2d 221,300 Md. 759
• Parties: John CRANFORD et al. v. MONTGOMERY COUNTY, Maryland et al. ,
• Court: Maryland Court of Appeals

Page 759

300 Md. 759

481 A.2d 221

John CRANFORD et al. v. MONTGOMERY COUNTY, Maryland et al.

No. 103, Sept. Term, 1983.

Court of Appeals of Maryland.

Sept. 14, 1984.

L. Marc Zell, Bethesda (Topf, Zell, Kolodny & Novick, Bethesda, on brief), for appellants.

Clyde H. Sorrell, Senior Asst. County Atty., Rockville (Paul A. McGuckian, County Atty. and Robert G. Tobin, Jr., Deputy County Atty., Rockville, on brief), for appellees.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., and W. ALBERT MENCHINE, Associate Judges of the Court of Special Appeals (retired), Specially Assigned.

RODOWSKY, Judge.

This action is one to enforce the Public Information Act, Md.Code (1957, 1980 Repl.Vol., 1983 Cum.Supp.), Art. 76A, §§ 1-5A (the Md.Act). At issue are many documents which relate to a public construction project and which a public agency withheld when a newspaper requested production under the Md.Act. The circuit court and the intermediate appellate court approved nondisclosure in reliance on the exemption from production for agency memoranda set forth in § 3(b)(v) of the Md.Act. In our view there are deficiencies in the agency's proof. We shall remand pursuant to Maryland Rule 871 in order to have the substantial merits of the case determined in light of the principles hereinafter set forth.

The construction project around which this litigation centers is the Montgomery County Government Center consisting of a nine-story courthouse and a seventeen-story executive office building both of which rise from a multiple level parking structure. Government Center was designed as two separate projects by two architectural firms, but a single prime construction contract covering the work for the entire complex was awarded to Blake Construction Company (Blake). Work started in May of 1978.

Within the executive branch of Montgomery County, Maryland (the County) is a Department of Facilities and Services (DFS). One of the functions and responsibilities of DFS is "[p]roject administration, design and supervision of construction of all new county buildings." Montgomery County Code (1972, 1977 Repl.Vol., 1982 Cum.Supp.), § 2-64G(a). The director of DFS is Thomas S. Abraham (Abraham). Within DFS is a section headed by Frederick P. Kranz (Kranz) and known as the Office of Architectural Services (OAS). While it is not completely clear in the record, we infer that OAS is or was sometimes called the Office of Design and Construction. Overall responsibility for project administration, design and supervision of construction of Government Center was in OAS. James A. Dove (Dove) and John D. McNickle (McNickle) are staff architects in OAS assigned to the Government Center project.

As early as January 9, 1979 Blake had claimed against the County for additional compensation. By the fall of 1979 construction was behind schedule. The County began discussions with a consultant, MDC Systems Corp. (MDC), which culminated in a contract dated March 31, 1980 between MDC and the County. Services to be rendered by MDC included schedule analysis, monthly schedule review and "claims prevention services." MDC agreed to "[s]erve as expert witness testifying in behalf of the County in court sessions, as required." By an amendment of March 11, 1981 MDC agreed to evaluate all change order claims and requests for time extensions and for delay costs. These evaluations were to be done "by professional engineers capable of testifying in behalf of the County as expert witnesses ...."

On May 8, 1981 a reporter and the editor of the Sentinel newspapers in writing asked Abraham to give them access to all documents relating to the Government Center construction project. Martin J. Hutt, Esq. (Hutt), an Assistant County Solicitor, was assigned to determine what material was exempt from disclosure under the Md.Act. He went through files at OAS for "several hours" and concluded that documents filling two five drawer file cabinets should be produced. He culled out a variety of documents, numbering in excess of 130 and collectively measuring approximately three inches in thickness, each of which he deemed to be privileged in its entirety. When the County advised the newspaper that certain classes of documents were being withheld, its corporate publisher and its editor (the Petitioners) sued in the Circuit Court for Montgomery County.

Pertinent to the instant controversy are the following provisions of § 3 of the Md.Act:

(a) The custodian of any public records shall allow any person the right of inspection of such records or any portion thereof except on one or more of the following grounds or as provided in subsection (b) or (c) of this section:

(i) Such inspection would be contrary to any State statute;

(ii) Such inspection would be contrary to any federal statute or regulation issued thereunder having the force and effect of law;

(iii) Such inspection is prohibited by rules promulgated by the Court of Appeals, or by the order of any court of record; or

(iv) Such public records are privileged or confidential by law.

(b) The custodian may deny the right of inspection of the following records or appropriate portions thereof, unless otherwise provided by law, if disclosure to the applicant would be contrary to the public interest:

....

(iii) The specific details of bona fide research projects being conducted by an institution of the State or a political subdivision, except that the name, title, expenditures, and the time when the final project summary shall be available;

....

(v) Interagency or intraagency memorandums or letters which would not be available by law to a private party in litigation with the agency.

(c) The custodian shall deny the right of inspection of the following records or any portion thereof, unless otherwise provided by law:

....

(v) Trade secrets, information privileged by law, and confidential commercial, financial, geological, or geophysical data furnished by or obtained from any person[.]

Responding by a letter of June 3, 1981 to Petitioners' request, the county attorney claimed that the withheld documents were exempt under subsections (a)(iii) and (iv), (b)(iii) and (v) and (c)(v). This letter divided the allegedly exempt records into five categories, namely:

(1) Intraagency memorandums from the staff of the Office of Design and Construction to Frederick Kranz and/or Thomas Abraham (Director of the Department of Facilities and Services).

(2) Interagency memorandums from the staff of Office of Design and Construction or Thomas Abraham to the Chief Administrative Officer and/or County Executive.

(3) Inspection reports of James Dove.

(4) Personal notes of John [McNickle].

(5) Consultant report prepared by MDC.

A show cause order was issued when Petitioners docketed their suit, to which the County responded by filing a memorandum of law. It relied almost entirely on the agency memoranda privilege of § 3(b)(v), but it did mention other provisions of the Md.Act. To the extent that category one of the June 3 letter embraced correspondence with the county attorney's office, the County asserted an attorney-client privilege, which was said to rest on § 3(a)(iv). A privilege for confidential commercial information customarily regarded as confidential in the construction industry was claimed in reliance on § 3(c)(v), but the agency did not specify any documents or category of documents as protected by that claimed privilege. The County also raised executive privilege, citing Hamilton, Superintendent v. Verdow, 287 Md. 544, 414 A.2d 914 (1980). Although Montgomery County's memo said executive privilege "affords a broad immunity from disclosure of governmental documents, particularly those prepared for an executive officer," it did not particularly identify any documents to which application of that privilege was peculiarly suited. Finally, category five, described in the June 3 letter as the MDC report, was said to constitute bona fide research and to be exempt under § 3(b)(iii).

The case came on for trial on July 10, 1981 before Honorable John J. Mitchell. ¹ In Public Information enforcement actions § 5(b)(1) provides that

the court may examine the contents of the records in camera to determine whether the records or any part thereof may be withheld under any of the exemptions set forth in § 3, and the burden is on the defendant to sustain its action. In carrying this burden the defendant may submit to the court for review a memorandum justifying the withholding of the records.

The County's case before Judge Mitchell consisted of the MDC contract and testimony of Abraham, by stipulation, and of Hutt. By then Blake had presented a claim of $8.5 million against the County. The transcript of the stipulation reads that Abraham, who relied on Hutt to prepare the response, would have testified

that as a matter of course the subordinate staff correspondence with only on the project and subordinate staff design and construction correspondence with their supervisor Fred [Kranz] the Director of Architectural [Services] [sic ]. He would testify that he corresponds with the chief administrative officers and county executives who are superiors. Last he would testify that it would be detrimental for the correspondence to be public information since it would have a chilling effect on open and frank discussions between subordinates and in the [formulation] of policy and would have a detrimental effect on the claim pending before Blake Construction Company.

Hutt testified in person and described the five categories as they are set forth in the June 3 letter. Those descriptions will be quoted later in this opinion. On matters of general application to documents in all categories, Hutt's evidence was as follows:

Q In these materials that you felt should not be disclosed, were any of these purely factual materials? [Emphasis added.]

A No. In fact because from the County Attorney's Office staffing I...