Governor v. Washington Post

• Decision Date: 12 September 2000
• Docket Number: No. 117,117
• Citation: 360 Md. 520,759 A.2d 249
• Parties: OFFICE OF THE GOVERNOR et al. v. WASHINGTON POST COMPANY.
• Court: Maryland Court of Appeals

759 A.2d 249

360 Md. 520

OFFICE OF THE GOVERNOR et al. v. WASHINGTON POST COMPANY.

No. 117, Sept. Term, 1998.

Court of Appeals of Maryland.

September 12, 2000.

Lawrence P. Fletcher-Hill, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellants.

Carmen M. Shepard, Deputy Atty. Gen. (reargued), for appellants.

Jonathan J. Frankel (Stephen H. Sachs, Patrick J. Carome, Tarnisha A. Graves, Wilmer, Cutler & Pickering, on brief), Washington, DC; Eric N. Lieberman, Washington, DC, of counsel, for appellee.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

Reargued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ. ELDRIDGE, Judge.

This case involves the extent to which telephone bills for telephones used by the Governor and two of his staff members, and the Governor's unpublished appointment schedules, are subject to public disclosure under the Maryland Public Information Act, Maryland Code (1984, 1999 Repl.Vol.), §§ 10-611 through 10-630 of the State Government Article.¹

I.

In November and December 1996, the Washington Post Company (the Post), through its agents, reporters Mary Pat Flaherty and Charles Babington, requested telephone and scheduling records, pursuant to Maryland's Public Information Act, from the Office of the Governor. Ms. Flaherty's request sought the telephone records of "the Governor and his staff" over a two-year period, including

"[a]ll phones in the Governor's Mansion [Government House]; his State House offices; all phones in Shaw House (an annex office in Annapolis); all phones in the Washington and Baltimore offices; all car phones and cellular phones used by the governor and anyone on his staff."

Mr. Babington's request for appointment or scheduling records was limited to the Governor but also spanned a two-year period. He requested

"[a]ll calendars indicating the persons, times, dates, and locations of meetings involving Governor Glendening in his official capacity as governor. This should include meetings in his State House office as well as those in Baltimore and other places where the governor conducts business."

Both requests were granted in part and denied in part.

The Office of the Governor (the Office) provided Ms. Flaherty with the aggregate cost of the telephone calls specified in her request; however, it denied the release of any "call detail," including the date, time, and length of each call. The Office asserted executive privilege, citing § 10-618(b) of the Act and this Court's opinion in Hamilton, Superintendent v. Verdow, 287 Md. 544, 414 A.2d 914 (1980), as well as cases in other states holding that telephone and scheduling records are exempt from disclosure under their corresponding public information acts.² The Office released the Governor's public agendas to Mr. Babington but denied the remainder of his request, stating that the appointment or scheduling records were not "public records" within the meaning of § 10-611(g) of the Act, and also invoking executive privilege, citing § 10-618(b) and Hamilton.³

Negotiations between the parties continued throughout much of 1997, and during that time the Post narrowed its request. With respect to telephone records, the Post limited its request to the telephone records of calls by the Governor, Chief of Staff Major E. Riddick, Jr., Senior Advisor Susan Smith-Bauk, and Secretary of State John F. Willis, over the six-month period from February 1, 1996, through July 31, 1996. In addition, Mr. Babington's original request for appointment records was also limited to the same six-month period. Despite these changes, the Office still refused to comply with the Post's request.

As a result, on December 4, 1997, the Post brought suit in the Circuit Court for Anne Arundel County against the Office of the Governor and Governor Parris Glendening. Under the Post's complaint, the records sought were those asked for after the Post had narrowed its request, namely records of telephone calls by specified individuals and appointments of the Governor, covering only the six-month period. The Office and the Governor filed a motion for summary judgment, claiming that all of the records fell within § 10-618(b) and the doctrine of executive privilege. They also argued that public disclosure of the Governor's daily schedules, even after the fact, would pose a threat to the personal security of the Governor and those around him.⁴ In addition, they claimed that some of the documents were also exempt from disclosure under other sections of the Act, specifically the exemptions for records containing confidential personnel information (§§ 10-616(d) and (i)), confidential commercial information (§ 10-617(d)), confidential employee information (§ 10-617(e)), or confidential financial information (§ 10-617(f)). The defendants argued that these specific exemptions under the Act would require redactions that were "virtually impossible to accomplish." Finally, they argued that the Post's request for the telephone records of Secretary of State Willis was barred because he had not been joined as a party to the action.

Pursuant to an order of the court, the Governor and his office submitted in camera sample copies of the appointment schedules and telephone records, as well as affidavits from the Governor and numerous staff members, including Joanne Trumbule, the Governor's Director of Scheduling, Robert Platky, the Director of Financial Administration for the Office of the Governor, and State Police Lieutenant Gary Shields, Commander of the Governor's Protection Unit.

The Post filed a cross motion for summary judgment, arguing that the documents at issue were not "interagency or intra-agency letter[s] or memorand[a]" within the meaning of § 10-618(b) of the Act, and that, as purely factual material, the documents were not privileged. According to the Post, any threat to the Governor's security as a result of the release of the requested records, even if true, did not constitute an "independent justification recognized under the [Act] for withholding public records." Finally, the Post contended that the exemptions claimed for commercial information, financial information, and personnel records did not apply to the records at issue and that, alternatively, even if parts of the records were within such exemptions, the defendants were not justified in withholding all of the records.

A hearing was held on the motions for summary judgment in May 1998. In early July 1998, the Circuit Court issued an opinion and order denying the motions. The court held that the doctrine of executive privilege was incorporated into the Act in both § 10-618(b), as argued by the Office and the Governor, and also in § 10-615(1), which requires non-disclosure when "by law, the public record is privileged or confidential." As a result, the court held that whether the documents fit within the definition of "memorandum" under § 10-618(b) was irrelevant if the documents were privileged under the doctrine of executive privilege. Citing Hamilton, Superintendent v. Verdow, supra, 287 Md. 544, 414 A.2d 914, the Circuit Court found that a purpose of that privilege "is to promote the efficient operation of the government by allowing the Governor to solicit advice from a wide range of people without fear that public disclosure will restrain the free flow of that advice." The court also stated that the privilege was not absolute, and that the evidence was insufficient to determine whether the records might be privileged under § 10-618(b) and/or § 10-615(1). Accordingly, the court ordered the defendants to produce all telephone and scheduling records to the Post for which the defendants were not claiming privilege, submit to the court for an in camera review all records claimed to be privileged, and submit to the court a proposed redacted version of those records with a detailed memorandum explaining why the redacted information was privileged.

Two weeks after the Circuit Court's opinion and order, the Post filed a motion requesting the court to set a compliance deadline for the defendants. One week later, the defendants filed a motion for clarification and reconsideration, again asking the court to recognize a categorical executive privilege as to all documents at issue and asserting that compliance with the opinion and order would be excessively burdensome. After a hearing, the court granted the Post's motion and set the compliance deadline for September 5, 1998, which was subsequently extended to September 11, 1998. The court denied the defendants' motion for reconsideration, stating that "[t]he court does not believe that the Governor is entitled to a broad claim of executive privilege on all telephone and calendar records," but that he "may be entitled to executive privilege if [he] can prove that disclosure of particular information will adversely affect [his ability] to effectively carry-out his Constitutional duties." The court also held that the telephone records of Secretary of State John F. Willis were not within the scope of the court's July opinion and order because the Post had failed to name the Secretary of State as a party.

The Office and the Governor on September 11, 1998, submitted a limited group of records to the Post, including the telephone records from the business line in Mr. Riddick's home, other telephone records at issue with call detail redacted so that only the cost was revealed, and reimbursement receipts for personal calls made by Mr. Riddick and Ms. Smith-Bauk for the six months at issue. They submitted to the court, for in camera review, unredacted copies of the telephone and calendar records with proposed redactions highlighted, as well as a memorandum and affidavits in support of those redactions.

On September 15, 1998, the Post filed a motion to unseal the in camera explanations for the redactions, and thereafter argument on this motion was...