Md. Dep't of State Police v. Dashiell

• Decision Date: 25 June 2015
• Docket Number: No. 84, Sept. Term, 2014.,84, Sept. Term, 2014.
• Citation: 443 Md. 435,117 A.3d 1
• Parties: MARYLAND DEPARTMENT OF STATE POLICE v. Teleta S. DASHIELL.
• Court: Court of Special Appeals of Maryland

443 Md. 435

117 A.3d 1

MARYLAND DEPARTMENT OF STATE POLICE

v.Teleta S. DASHIELL.

No. 84, Sept. Term, 2014.

Court of Appeals of Maryland.

June 25, 2015.

Ronald M. Levitan, Asst. Atty. Gen. (Mira A. Feldstein, Asst. Atty. Gen., Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner/Cross–Respondent.

Seth A. Rosenthal (Venable LLP, Washington, DC; Deborah A. Jeon, Sonia Kumar, ACLU Foundation of Maryland, Baltimore, MD), on brief, for Respondent/Cross–Petitioner.

Mary M. Gardner (Jeffrey M. Johnson, Dickstein Shapiro LLP, Washington, DC), on brief, for Respondent/Cross–Petitioner.

Anna Jagelewski, Esquire, Francis D. Murnaghan, Appellate Advocacy Fellow, Baltimore, MD, for Amici Curiae brief of Casa De Maryland, Caucus of African–American Leaders, Howard University School of Law Civil Rights Clinic, Maryland State Conference of NAACP Branches, Public Justice Center, and Somerset County Organizational Partnership.

Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.

Opinion

BATTAGLIA, J.

Teleta S. Dashiell,¹ Respondent, filed a complaint for declaratory² and injunctive relief under the Maryland Public Information Act, Maryland Code (1984, 2010 Repl.Vol.), Sections 10–611 et seq. of the State Government Article³ against the Maryland State Police Department. Ms. Dashiell's complaint was based upon the State Police's refusal to provide her with records of an internal investigation conducted by them in response to a complaint Ms. Dashiell filed against Sergeant John Maiello of the State Police that was “sustained”.⁴

Judge Patrick J. Cavanaugh of the Circuit Court for Baltimore County granted the State Police's motion for summary judgment and agreed with the State Police that the records were exempt mandatorily from disclosure as “ personnel records.”⁵ After the Court of Special Appeals determined that the Circuit Court erred by not requiring the State Police to create an index of the withheld documents and by not conducting an in camera review of the documents, the State filed a writ of certiorari asking us to consider the following question:

Did the Department of State Police properly invoke the Maryland Public Information Act's (MPIA) exemptions for personnel records and records that are confidential under other law—here the Law Enforcement Officers' Bill of Rights—to deny a request for the internal affairs records of an investigation into the conduct of a specifically identified state trooper?

Ms. Dashiell cross-petitioned and asked:

[W]hether a complaining victim ... may be considered the subject of an investigation such that she is a “person of interest” under the MPIA?

441 Md. 61, 105 A.3d 489 (2014) (internal quotation marks omitted).

We shall hold that the internal affairs records of an investigation into the conduct of a specifically identified state trooper is a “personnel record” under Section 10–616(i) of the Maryland Public Information Act, and, in this case, not capable sufficiently of redaction such as to render it “ sanitized” for possible disclosure, were disclosure necessary. See Maryland Dep't of State Police v. Maryland State Conference of NAACP Branches, 430 Md. 179, 59 A.3d 1037 (2013).

Teleta Dashiell had, in 2010, filed a complaint for declaratory and injunctive relief in the Circuit Court for Baltimore County in which she alleged that Sergeant John Maiello of the State Police, during a search for a fugitive, had left a voicemail for her, which included a racially perverse reference:

13. On or about November 2, 2009, Ms. Dashiell was questioned by MSP officers during the MSP's search for an alleged fugitive. During this initial questioning, Ms. Dashiell informed the MSP that she did not know the location of the alleged fugitive and had no other information that would assist the MSP in its search.

14. On or about November 3, 2009, during the course of the MSP search, MSP Sergeant John Maiello called Ms. Dashiell and left the following message asking her to call him back: “Hey, it's Sergeant Maiello with the State Police. Call me back.” Then, erroneously believing he had ended the call, Sergeant Maiello stated:

Why, that's what I think about it, and I need to hear some shit like that ... That's when I say to myself, ‘Oh my God ... I'm listening to some God dang n[* * * * *]'s voice mail play for 20 minutes. ’

In addition to the use of the word n [* * * * *] in the above statement, Sergeant Maiello was recorded using the slur a second time on Ms. Dashiell's voicemail. A second MSP officer can be heard laughing in the background.

Ms. Dashiell further alleged that she complained to the State Police, which investigated and disciplined Sergeant Maiello, the particulars of which were included in his personnel file, but the details of which were not disclosed to Ms. Dashiell:

15. On or about November 5, 2009, Ms. Dashiell contacted MSP Lieutenant Krah Plunkert, believing him to be the Commander of the Princess Anne Barrack, made a complaint regarding MSP Sergeant Maiello. At the time Ms. Dashiell made her complaint she gave a statement to MSP personnel, which she believes to have been recorded.

16. Ms. Dashiell's complaint was allegedly assigned to Detective Sergeant Kristi Meakin of the MSP Internal Affairs Section. Detective Sergeant Meakin allegedly investigated Ms. Dashiell's complaint regarding MSP Sergeant Maiello and later informed Ms. Dashiell that she had confirmed the allegations of derogatory racial comments made by Sergeant Maiello.

17. Upon information and belief, the MSP closed its alleged investigation into Ms. Dashiell's complaint on or about the second week of February 2010.

18. By letter to Ms. Dashiell dated February 17, 2010 from MSP Captain Kristina Nelson, the MSP stated that there exists an “investigative file” regarding Ms. Dashiell's complaint. This letter also indicated that, among other things, the MSP's alleged investigation confirmed Ms. Dashiell's allegations concerning Sergeant Maiello and stated that “[a]s a result of these findings the appropriate disciplinary action was taken against Sergeant Maiello and documented in his personnel file.”

19. The MSP did not inform Ms. Dashiell of the details of the alleged investigation, or of the content of the MSP's files, including the results of any investigation into her complaint or whether (and to what extent) Sergeant Maiello was reprimanded or actually disciplined.

Ms. Dashiell, thereafter, according to her complaint, sent a formal request to the State Police to inspect and copy various records related to the internal investigation of Sergeant Maiello:

20. On March 2, 2010, following completion of MSP's alleged investigation of Ms. Dashiell's complaint, the ACLU of Maryland, acting on its own behalf and on behalf of Ms. Dashiell, sent a formal MPIA request to MSP Lieutenant Colonel Michael Fischer—believed to be the MSP custodian of records—seeking records from the MSP's closed investigation into Ms. Dashiell's complaint against Sergeant Maiello.

21. Specifically, Ms. Dashiell and the ACLU requested to inspect and copy records pertaining to:

The internal investigation conducted by the Maryland State Police pursuant to the complaint lodged against Sergeant John Maiello by Teleta Dashiell on November 5, 2009, and closed the second week of February, 2010, relating to the offensive voicemail message left on Ms. Dashiell's cell phone on November 3, 2009, including, but not limited to:

a. Any documents, including video and/or audio recordings, obtained during the investigation;

b. Any document, including video and/or audio recordings created during the investigation;

c. Incident reports;

d. Witness statements;

e. Charging documents;

f. Complaint control card;

g. Results of internal investigation; and

h. Results of the review of findings of the internal investigation.

22. Ms. Dashiell sought records concerning the MSP's handling of the complaint that she filed; where such records are classified as investigatory records, the MPIA makes them available for inspection by a “person of interest.” The MPIA defines a “person in interest” as “a person or governmental unit that is the subject of a public record or a designee of the person or governmental unit....”

(emphasis in original). Ms. Dashiell's complaint further alleged that initially her request was returned stamped “addressee unknown”, because the identified custodian of records had retired:

23. The MSP returned the March 2, 2010 MPIA request to the ACLU stamped “addressee unknown.” Apparently, unbeknownst to Ms. Dashiell and the ACLU at the time the MPIA request was sent, Lieutenant Colonel Fischer had retired from the MSP.

24. The MSP returned the MPIA request, failing to even identify the new custodian, rather than deliver it to the current custodian of records.

Ms. Dashiell, thereafter, according to her complaint, sent a new request to review the same records, which was denied “in its entirety”:

25. Subsequently, the ACLU of Maryland, on its own behalf and on behalf of Ms. Dashiell, again submitted the MPIA request by letter dated March 11, 2010, this time with a copy to MSP Principal Counsel, Ronald M. Levitan.

26. By letter dated March 22, 2010, Mr. Levitan acknowledged receipt of the MPIA request by the MSP Custodian of Records, as well as himself, on March 17, 2010. He promised a response to the request within 30 days.

27. On April 15, 2010, MSP responded in writing, declining Ms. Dashiell's MPIA request in its entirety.

The complaint further stated that, after the State Police denied the request, Ms. Dashiell then sought, at minimum, a “detailed index of the records being withheld”:

28. By letter dated June 7, 2010, Dickstein Shapiro—having then become counsel for Ms. Dashiell along with the ACLU—sent the MSP a letter challenging the MSP's denial of Ms. Dashiell's MPIA request and seeking, at the very least, a detailed index of the records being withheld, including a summary of each document, and a statement concerning the particular exemption that the MSP

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