Lamson v. Montgomery Cnty.
Decision Date | 31 July 2018 |
Docket Number | No. 67, Sept. Term, 2017,67, Sept. Term, 2017 |
Parties | Bernadette Fowler LAMSON v. MONTGOMERY COUNTY, MD |
Court | Court of Special Appeals of Maryland |
Argued by Timothy F. Maloney, Greenbelt (Alyse L. Prawde, Joseph, Greenwald & Laake, P.A., Greenbelt, MD), on brief, for Petitioner
Amicus Curiae Montgomery County Career Fire Fighters Association, International Association of Fire Fighters, Local 1664, Montgomery County Government Employees Organization, United Food and Commercial Workers Local 1994 and Fraternal Order of Police, Montgomery County Lodge 35 in Support of Petitioner: Molly A. Elkin, Esquire, Woodley & McGillivary LLP, 1101 Vermont Avenue, NW, Suite 1000, Washington, DC 20005, Carey R. Butsavage, Esquire, Butsavage & Durkalski, P.C., 1920 L Street, N.W., Suite 301, Washington, DC 20036, James F. Shalleck, Esquire, 9408 Bethany Place, Montgomery Village, MD 20886
Argued by Erek L. Barron, Bethesda (Tiffany Releford and Allen E. Honick, Whiteford, Taylor & Preston, L.L.P., Bethesda, MD), on brief, for Respondent
Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.
The issue before us is a request for the release of notes containing possible personnel information, relating to the performance of Bernadette Fowler Lamson ("Petitioner") as an employee of the Montgomery County Attorney's office. Petitioner filed a Maryland Public Information Act ("MPIA")1 request relative to her personnel file, seeking the disclosure of supervisory notes that were withheld by her employer, Montgomery County ("Respondent") and her supervisor, Silvia Kinch ("Ms. Kinch"). The disputed notes are divisible into two separate categories. The first consists of three pages of notes that were removed from Petitioner's personnel folder prior to its disclosure and the second set consists of notes that are contained in a personal journal in the exclusive possession and control of Ms. Kinch. With regard to both, Petitioner asserts that Respondent improperly withheld the notes when responding to her MPIA request. In response, Respondent contends that the notes are privileged, non-public information. Petitioner now seeks review of the grant of summary judgment in Respondent's favor, to determine whether the disputed notes were subject to disclosure under the MPIA. For the reasons discussed infra, we shall vacate the judgment of the Court of Special Appeals and remand with instructions.
Petitioner was an employee of the Office of the Montgomery County Attorney for over twenty years. During that time, she received "highly successful" reviews and top performance ratings. In 2015, Ms. Kinch downgraded Petitioner's performance rating from "highly successful" to "successful," which prevented her from receiving a 20-year, 2% performance bonus. Prompted by the negative rating, Petitioner requested access to her personnel file on September 1, 2015, which was provided after three pages of supervisory notes were redacted. On October 8, 2015, after receiving this response, Petitioner filed a MPIA request specifying 16 categories of public records, including the missing notes. Specifically, Petitioner requested the following categories of information:
On January 27, 2016, Respondent provided several responses to the MPIA request. Regarding request number one, Respondent asserted that:
Respondent concluded by stating that the supervisory notes constitute attorney work product. Regarding the second request, Respondent reiterated the rationale advanced in request one. Regarding the remaining requests, Respondent either provided the documentation or denied the existence of the document.
Thereafter, Petitioner filed a Complaint on February 24, 2016 in the Circuit Court for Montgomery County, alleging that Respondent violated the MPIA, and requested that the court order the disclosure of all relevant documents. In response, Respondent asserted that both sets of notes were not personnel records and were privileged or confidential by law, privileged attorney-client documents, attorney work product, or not subject to disclosure because of executive privilege. Thereafter, Respondent filed a Motion to Dismiss, or alternatively, a Motion for Summary Judgment. On May 10, 2016, Petitioner filed a Motion for a Vaughn index,4 seeking judicial review of the requested documents. Respondent proposed instead that the court conduct an in camera review, contending that a Vaughn index was only appropriate when the documents are voluminous and suggested that an in camera review was more practical. On June 22, 2016, the trial court considered arguments and issued an oral ruling granting the Respondent's Motion to Dismiss. The court stated:
As a result, the trial court concluded that an in camera review was not required, because the notes were not considered personnel records pursuant to Montgomery County Personnel Regulation § 4-8 (2001). Thereafter, Petitioner noted a timely appeal to the Court of Special Appeals.
The Court of Special Appeals issued its unreported opinion on August 25, 2017. See Lamson v. Montgomery Cty. , No. 892, Sept. Term 2016, (Md. Ct. Spec. App. Aug....
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