Glass v. Anne Arundel Cnty.

• Decision Date: 25 May 2017
• Docket Number: No. 20, Sept. Term, 2016,20, Sept. Term, 2016
• Citation: 453 Md. 201,160 A.3d 658
• Parties: Gary Alan GLASS v. ANNE ARUNDEL COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

453 Md. 201

160 A.3d 658

Gary Alan GLASS

v.ANNE ARUNDEL COUNTY, Maryland, et al.

No. 20, Sept. Term, 2016

Court of Appeals of Maryland.

May 25, 2017

Argued by Brian D. Patterson, Washington, DC, on brief, for Petitioner.

Deborah A. Jeon, Esquire, Sonia Kumar, Esquire, Maryland ACLU, Baltimore, MD, Richard A. Simpson, Esquire, Kimberly Ashmore, Esquire, Wiley Rein LLP, Washington, DC, for Amicus Curiae for American Civil Liberties Union of Maryland and Public Justice Center.

Argued by Philip E. Culpepper, Senior Asst. County Atty. (Nancy McCutchan Duden, County Atty. of Anne Arundel County Office of Law, Annapolis, MD), on brief, for Respondents.

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

McDonald, J.

This case began with what Petitioner's counsel characterized at trial as an episode of "road rage" between a motorist and an off-duty police officer in September 2010. Who was at fault we do not know and need not determine. An investigation into the officer's conduct apparently exonerated the officer; a traffic citation issued to the motorist resulted in an acquittal.

The matter did not end there. It has achieved an afterlife in several judicial and other forums over the past six years. This appeal stems from one of several public records requests under the Maryland Public Information Act ("PIA") made by the motorist, Petitioner Gary A. Glass, to the Police Department of Respondent Anne Arundel County. The response to that request was coordinated by Respondent Christine Ryder, the Police Department's records manager.

The records requests submitted by Mr. Glass to the Police Department initially targeted the traffic stop and the internal affairs file created by the Police Department in response to complaints by Mr. Glass about the officer, but later encompassed "any and all" records related to Mr. Glass. Dissatisfied with the handling of his requests, Mr. Glass filed at least two lawsuits under the PIA against the County. The lawsuits have resulted in numerous rulings since 2011 by at least five judges of the Circuit Court for Anne Arundel County, made against the backdrop of three contemporaneous decisions by this Court concerning the limits on public access to police internal affairs files under the PIA.

As a result of the rulings in the Circuit Court, Mr. Glass obtained a number of records that the County had not found in its initial searches in response to his requests or had initially withheld as privileged. Following a bench trial about whether the County had committed "knowing and willful" violations of the PIA, the Circuit Court held that the County had done so in two respects, but declined to award Mr. Glass the injunctive relief or damages he sought. The Court of Special Appeals disagreed with the Circuit Court in part and held that there was not clear and convincing evidence of any such violations; it agreed with the Circuit Court that Mr. Glass was not entitled to the relief he sought.

The alleged violations of the PIA turn on whether the County conducted reasonable searches in response to the PIA requests made by Mr. Glass, whether the County actually denied him access to responsive, non-privileged records, and whether a particular privilege (for personnel records) was properly asserted by the County with respect to certain records. For the reasons explained below, we reach the same result as the Court of Special Appeals.

IBackground

A. The Maryland Public Information Act

1. General Right of Access to Public Records

The Maryland Public Information Act is currently codified at Maryland Code, General Provisions ("GP"), § 4–101 et seq .¹

The statute is similar, although not identical, to the federal Freedom of Information Act ("FOIA").² This Court has frequently relied on case law under FOIA in deciding similar issues under the PIA. See, e.g., Fioretti v. Maryland State Board of Dental Examiners , 351 Md. 66, 76, 716 A.2d 258 (1998).

Based on the principle 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,"³ the statute provides members of the public with a right to inspect and copy public records, subject to certain exceptions. "Public record" is defined broadly as documentary material that is made or received by a unit of State or local government "in connection with the transaction of public business." GP § 4–101(j). The statute lists a number of examples of the myriad forms that a public record may take in addition to paper documents, including digital or electronic versions. Id. For example, email messages sent in connection with public business have long been considered to fall within the definition. See 81 Opinions of the Attorney General 140, 144 (1996).

The PIA spells out a general process for a person to request and obtain access to a public record (or, if access is denied, learn the reason why). GP § 4–201 et seq. The statute is to be construed "in favor of allowing inspection of a public record, with the least cost and least delay" to the requestor, unless "an unwarranted invasion of ... privacy" would result with respect to a particular person to whom the record pertains. GP § 4–103(b).

2. Exceptions to Disclosure Obligation

While the PIA creates a general right of access to public records, it also sets forth numerous exceptions to that general rule. The exceptions fall into four basic categories.

(1) Disclosure Controlled by Other Law. The PIA generally defers to the dictates of other laws that control disclosure of a particular public record. Thus, if another law—e.g., constitutional provision, statute, common law privilege—forbids disclosure of a record, or gives the agency discretion not to disclose the record, that other law controls disclosure of the record. See GP § 4–301.⁴ For example, a record of a communication covered by attorney-client privilege would not be disclosed in response to a PIA request, unless the client waived the privilege. GP § 4–301(1).

(2) Mandatory Exceptions. The PIA itself forbids disclosure of certain specified categories of records . See GP § 4–304 et seq. Similarly, the statute forbids an agency from disclosing certain types of information that may appear in a record, even if other parts of the record are open to inspection. See GP § 4–328 et seq . These exceptions to the PIA's general rule of disclosure are often called mandatory exceptions. An example of a mandatory exception for entire records, pertinent to this case, is the exception for personnel records of public employees. GP § 4–311.⁵ An example of a mandatory exception for information (that may be only a portion of a record) is the exception for confidential commercial information. GP § 4–335.⁶

(3) Discretionary Exceptions. The PIA specifies other categories of records or information that an agency may withhold from public inspection if it believes that disclosure "would be contrary to the public interest." GP § 4–343 et seq. For example, a custodian may deny inspection of interagency or intra-agency letters and memoranda that contain pre-decisional deliberations. GP § 4–344. Another example is a record of an investigation conducted by police or prosecutors as well as "an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose." GP § 4–351(a).⁷ These exceptions to the PIA's general rule in favor of disclosure are often referred to as discretionary exceptions. They are "discretionary" not in the sense that the agency may withhold or disclose as it pleases, but in the sense that the agency must make a judgment whether the statutory standard for withholding a record—that is, disclosure "would be contrary to the public interest"—is met.

(4) Catch-all Exception by Court Order. Finally, even when disclosure of a record is not controlled by other law or precluded by one of the PIA's mandatory or discretionary exceptions, an agency may—subject to certain procedural requirements—temporarily deny inspection of the record if the official custodian believes that inspection would cause "substantial injury to the public interest." GP § 4–358(a). The agency must promptly seek a court order in order to continue to withhold the record. See Glenn v. Department of Health and Mental Hygiene , 446 Md. 378, 132 A.3d 245 (2016).

3. The Role of the Custodian of Records

The PIA assigns important responsibilities in responding to PIA requests to a "custodian" of records. The statute defines "custodian" as "any ... authorized individual who has physical custody and control of a public record." GP § 4–101(d)(2). As is evident, an agency may have many custodians of its records. A custodian of records has the responsibility for responding to a PIA request by either allowing inspection of the requested records or asserting the appropriate exceptions. See GP § 4–201 et seq. , § 4–301 et seq.

Certain special responsibilities are assigned to the "official custodian," defined as an "officer or employee [of the agency] who is responsible for keeping a public record, whether or not the officer or employee has physical custody and control of the public record." GP § 4–101(f). Some decisions are reserved to the official custodian, such as designating records to be disclosed without a written request and deciding when to seek a court order under the catch-all exception. GP §§ 4–201(c), 4–358.

An official custodian is also responsible for "adopting reasonable rules or regulations that ... govern timely production and inspection of a public record." GP § 4–201(b).

In practice, an agency may designate one of its employees, perhaps called a records manager or PIA coordinator, to receive PIA requests and coordinate searches and responses to such requests rather than have each individual custodian (which may include most employees) respond piecemeal to records requests. In responding to a PIA request, a designated custodian generally must enlist the assistance of others who...