Gov't Accountability & Oversight, P.C. v. Frosh
| Decision Date | 01 March 2021 |
| Docket Number | No. 2602,2602 |
| Parties | GOVERNMENT ACCOUNTABILITY & OVERSIGHT, P.C. v. BRIAN FROSH |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City
Case No. 24-C-19-001095
UNREPORTED
Arthur, Shaw Geter, Wells, JJ.
Opinion by Arthur, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Under the Maryland Public Information Act (the "PIA"), Maryland Code , §§ 4-101 to -601 of the General Provisions Article ("GP"), the public is generally entitled to "access to information about the affairs of government and the official acts of public officials and employees." GP § 4-103(a). In some instances, however, the PIA requires the custodian of a public record to deny access to a public record. One such instance is when the record is privileged or confidential. GP § 4-301(a).
In this case, a public interest organization, Government Accountability & Oversight, P.C. ("GAO"), submitted a PIA request to the Office of the Attorney General ("OAG"). The request concerned communications between the OAG and the State Energy and Environmental Impact Center at the New York University School of Law (the "Impact Center"). The OAG produced much of the relevant document, but redacted portions of it on the ground that they were exempt from disclosure because they were subject to the attorney-client privilege.
Disagreeing with the OAG's redactions, GAO filed suit to compel disclosure in the Circuit Court for Baltimore City. The parties filed cross-motions for summary judgment, and the OAG provided the circuit court with an unredacted copy of the document for in camera review. The circuit court, concluding that the redacted segments of the document were exempt from disclosure under the attorney-client privilege, denied GAO's motion and granted OAG's cross-motion for summary judgment. GAO filed this timely appeal.
On appeal, GAO presents the following questions, which we have reordered and rephrased:
For the reasons stated herein, we shall affirm the decision of the circuit court.
The document in dispute is an application submitted by the OAG to the Impact Center, a program associated with the New York University School of Law. The Impact Center offers legal advice and resources to support state attorney generals ("AGs") in pursuing environmental initiatives. Funding for the Impact Center comes from the businessman, philanthropist, and political figure Michael Bloomberg.
The Impact Center offers two distinct services to AGs: (1) direct legal assistance "to interested AGs on specific administrative judicial or legislative matters involving clean energy, climate change, and environmental interests" and (2) "funding to recruit and hire 10 NYU fellows who will serve as Special Assistant AGs, working as part of the state [AG's] staff."
In 2017 the Impact Center invited interested AGs to apply for the opportunity to have Special Assistant AGs ("SAAGs") "seconded" to their offices for a two-year term. The Impact Center would pay the salary for the SAAGs and provide ongoing support, but "the SAAGs' duty of loyalty" would "be to the attorney general who hired them."
The Impact Center instructed interested AGs to prepare an application that described "the particular scope of needs within their OAGs related to the advancement and defense of progressive clean energy, climate change, and environmental matters." The application was to include a detailed explanation on "how additional support could help advance the work of the state attorney general on behalf of his or her constituents."
The OAG applied to the Impact Center. In its application, the OAG described its "commitment to enhancing and protecting environmental laws and regulations."
The Impact Center selected the OAG as one of the participating offices and hired an NYU Fellow to be seconded to the OAG as a SAAG. In a separate agreement, the Impact Center undertook to provide pro bono counsel to the OAG in an attorney-client agreement.
GAO, a non-profit research, public policy and public interest law firm, believed that the Impact Center was "deputiz[ing]" the OAG to carry out a "'progressive' ideological political agenda." GAO submitted a request under the PIA for "documents related to any 'determination' or 'analysis'" regarding OAG's authority to hire "legal fellows whose salary and benefits are provided by an outside funding source."2
The OAG provided GAO with several documents, including a redacted version of the OAG's application. The OAG informed GAO that the redacted sections were protected from disclosure by the attorney-client privilege.
On December 6, 2018, GAO submitted the PIA request at issue here. In this request, GAO asked the OAG to provide the OAG's "application to participate in the NYU State Energy and Environmental Impact Center's fellowship program." In response, the OAG again provided GAO with a redacted version of its application. After taking a "closer look," however, the OAG determined that it could produce portions of the document that it had previously redacted.
The OAG provided the more-lightly redacted application with a two-page letter explaining that the redacted portions were protected by the attorney-client privilege. The OAG stated that the redacted portions were privileged because they "relate to professional advice and to the subject-matter about which the advice is sought." TheOAG further stated that "in some instances" the redacted portions included "information about our OAG's litigation strategy." The OAG asserted that, although it "did not yet have an attorney-client relationship with the Impact Center at the time [of the application], the attorney-client privilege extends, under Maryland law, to confidential preliminary discussions before the attorney-client relationship is formed concerning the subject matter about which legal advice is sought." The letter concluded by informing GAO of its right to contest the OAG's decision through mediation or judicial review.
On February 25, 2019, GAO filed suit in the Circuit Court for Baltimore City to "enforce the right to inspect public records pursuant to" the PIA. In its complaint, GAO challenged the OAG's claim that the redacted portions of the applications were exempt from disclosure under the attorney-client privilege.3
GAO moved for summary judgment, and the OAG filed a cross-motion for summary judgment. The OAG provided the circuit court with an unredacted copy of the application for the court to review in camera. Neither party requested a hearing. In the circuit court's assessment, the parties were in "substantial agreement as to the facts," and the dispute "appear[ed] to be a pure question of law."
On January 24, 2020, the circuit court denied GAO's motion for summary judgment and granted the OAG's cross-motion. In its five-page decision, the circuitcourt concluded that the attorney-client privilege applied to the redacted portions of the application. Based on its in camera review of the document, the court observed that the redacted portions of the application "relate to [the OAG's] reasons for seeking legal assistance and deal with the nature of potential services to be provided and strategies to be implemented." The court recognized that the attorney-client privilege may apply to communications that occur before a formal attorney-client relationship has been formally established, when the parties are engaged in "interviews and negotiations leading to the establishment of such a relationship." Lanasa v. State, 109 Md. 602, 617 (1909). Thus, the court determined that the attorney-client privilege protected the document and that the OAG, as the client, had not consented to disclosure.
GAO filed this timely appeal.
This Court reviews the circuit court's grant of summary judgment in PIA cases "without deference." Amster v. Baker, 453 Md. 68, 75 (2017).
In its lead argument, GAO complains that "the trial court's order is devoid of factual findings." It contends that we cannot "allow a judgment unsupported by factual findings to stand." It cites Comptroller of Treasury v. Immanuel, 216 Md. App. 259, 266 (2014), for the proposition that the circuit court's ruling must have "an adequate factual basis."
GAO misconceives the nature of the ruling under review in this case. Here, the circuit court decided cross-motions for summary judgment, granting the OAG's motion, and denying GAO's. In arriving at that decision, the court was prohibited from making factual findings. " " Amster v. Baker, 453 Md. at 75 (quoting Animal Legal Def. Fund. v. U.S. Food & Drug Admin., 836 F.3d 987, 988-89 (9th Cir. 2016)).
The factual basis for the circuit court's decision was the set of undisputed facts that the parties presented to the court. In claiming that they were entitled to summary judgment on the basis of those undisputed facts, both GAO and the OAG tacitly agreed that the court had an adequate factual basis on which to rule. Cf. Md. Rule 2-501(requiring a response to a summary judgment motion to "identify with particularity each material fact as to which it is contended that there...
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