Short v. Frank Bishop

• Decision Date: 09 March 2016
• Docket Number: No. 0496,0496
• Parties: KEVIN SHORT v. FRANK BISHOP, WARDEN
• Court: Court of Special Appeals of Maryland

KEVIN SHORT v. FRANK BISHOP, WARDEN

No. 0496

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

March 9, 2016

UNREPORTED

Woodward, Friedman, Zarnoch, Robert A. (Retired, Specially Assigned), JJ.

Opinion by Zarnoch, 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.

In 2014, appellant Kevin Short, an inmate at the North Branch Correctional Institution ("NBCI"), submitted a request under the Maryland Public Information Act ("PIA"), at the time codified at § 10-604 et seq. of the State Government Article ("S.G."), Maryland Code (1984, 2009 Repl. Vol., 2014 Supp.), to Warden Frank Bishop for various records concerning the detention facility.¹ After receiving an unsatisfactory response, Short filed a petition for judicial review in the Circuit Court for Allegany County. The State filed a motion for summary judgment, which the court granted on March 23, 2015. Short now contends that the circuit court erred in granting the motion for summary judgment against him. For the reasons set forth below, we affirm the judgment of the circuit court in part, and remand without affirmance or reversal in part for reconsideration of certain issues.

BACKGROUND

In his request, received by NBCI on March 26, 2014, Short sought the following information:

1. Inmate Kevin Short - 299855 complete Basefile excluding any and all confidential portions unavailable to the public and inmate Kevin Short;2. Any and all correctional medical services contract records, including documents describing the name and number of the health care/mental health care providers at NBCI, the cost and availability of medical services and any complaints from prisoners against NBCI health care providers; to include all reports, documents, memo, statements, etc., from 2005 till present;

3. Any and all institutional operations records such as documents relating to any and all security restrictions, security violations, and complaints from inmates about their conditions of confinement to include letters, memos, reports, documents, statements, etc.;

4. Any and all records of the inmate welfare fund including documents describing the officials who manage the fund and any investments or expenditures made by NBCI from 2009 till present.

In a letter, dated April 24, 2014, the Warden's designee, Leslie Simpson, responded to Short's four requests. In response to his first request, she told Short that because his institutional base file is confidential, he must submit the appropriate form to his assigned case management specialist for review by the Warden's designee. In response to his second request, Simpson informed him that the Wexford Medical contract is available for review in the NBCI Support Services Building Library and instructed Short how to contact the NBCI librarian to inspect those records. Simpson informed Short that any additional requests included in his second request should be directed to Wexford Medical at the address provided.

Responding to the third request, Simpson determined that the application for institutional operation records of NBCI was unreasonably broad and asked Short to resubmit his request specifying the particular directives and policies he sought. She also noted that all institutional directives that are available for inmate distribution areavailable for review in the NBCI library. Simpson determined that there were no documents responsive to his request for complaints ("letters, memos, reports, documents, statements, etc.") from inmates about their conditions of confinement.

Regarding the final request, records of the inmate welfare fund "including documents describing the officials who manage the fund and any investments or expenditures made by NBCI from 2009 till present," Simpson found responsive documents totaling 3,000 pages. She denied Short's fee waiver request and informed him that copies of the records were available at a cost of 15 cents per page and that it would take 22 hours to search for and prepare the records. The Warden charged $27.50 per hour for 20 hours, resulting in a total cost of $1,000 for the records. Short did not respond to the Warden with a clarification of his requests, and did not pay the fees for the responsive records.

On May 12, 2014, Short filed a petition for judicial review pursuant to S.G. § 10-623 in the circuit court alleging that the Warden and Simpson had improperly responded to his PIA request by directing him to other departments and by failing to disclose records he was entitled to inspect.² Short requested that he be able to obtain therequested records at no charge due to indigence and that he be awarded punitive damages punitive damages of $300.³

On September 15, 2014, Warden Bishop filed an answer. Five months later, on February 25, 2015, the Warden filed a motion for summary judgment arguing that Short had not been denied access to any public records. Pursuant to Maryland Rules 1-203 and 2-311, Short had 18 days after the motion was mailed, until March 16, 2015, to respond to the motion. After receiving no response from Short, on March 23, 2015, the circuit court granted the warden's motion for summary judgment. On March 27, 2015, several days late, Short filed a response to the motion for summary judgment.⁴

Short filed an appeal to this Court on April 3, 2015, and presents several questions for our review, which we have rephrased and consolidated to the following⁵:

Was the circuit court legally correct in granting Warden Bishop's motion for summary judgment?

DISCUSSION

The General Assembly enacted the PIA in 1970, four years after Congress's passage of the Freedom of Information Act ("FOIA"), now codified at 5 U.S.C. § 552 et seq. See Blythe v. State, 161 Md. App. 492, 513 (tracing the origins of the PIA), cert. granted, 388 Md. 97, and appeal is dismissed as moot, 390 Md. 323 (2005). "'The purpose of the Maryland Public Information Act . . . is virtually identical to that of the FOIA'; consequently, to the extent that the PIA is like the FOIA, the federal circuits' interpretation of the FOIA is persuasive." MacPhail v. Comptroller of Maryland, 178 Md. App. 115, 119 (2008) (citing Faulk v. State's Attorney for Harford County, 299 Md. 493, 506 (1984)). Therefore, this Court adopted the standard of review applied by federal courts of appeals involving claims under the FOIA, which is (1) whether the trial court had an adequate factual basis for the decision rendered and (2) whether upon this basis the decision reached was clearly erroneous. Comptroller of Treasury v. Immanuel, 216 Md. App. 259, 266 (2014) (citing Haigley v. Dep't of Health & Mental Hygiene, 128 Md. App. 194, 210 (1999)). "We review de novo any purported errors in interpreting the Act itself."

A. The Maryland Public Information Act

"The public's right to information about government activities lies at the heart of a democratic government. Maryland's [PIA] grants the people of this State a broad right of access to public records while protecting legitimate government interests and the privacy rights of individual citizens. Leopold, 223 Md. App. at 109 (quoting Office of theAttorney General, Maryland Public Information Act Manual, Preface (13th ed., October 2014)).

The Court of Appeals outlined the procedure for requesting records under the PIA and for seeking judicial review of a request in Ireland v. Shearin:

Maryland's PIA states that a "custodian shall permit a person ... to inspect any public record at any reasonable time" except as otherwise provided by law. Md. Code (1984, 2009 Repl. Vol.), § 10-613 of the State Government ("SG") Article.

An individual asserts this right to access by submitting a written application to the custodian of records, unless an exception applies. See SG § 10-614(a)(1). The recipient of the application must verify (1) that he or she is in fact a custodian of the record, see SG § 10-614(a)(3), and (2) that the document in question exists, see SG § 10-614(a)(4). If these two requirements are met, the custodian of records must then either grant or deny the application within thirty days of receiving the initial application. See SG § 10-614(b). A grant of the application requires the custodian of records to produce the public record within 30 days of receipt of the application. See SG § 10-614(b)(2). On the other hand, a denial requires the custodian of records to immediately notify the applicant and, within ten business days, provide a written statement to the applicant giving the legal reasons for the agency's failure to disclose and advising the applicant of his or her right for review of the denial. See SG § 10-614(b)(3).

The PIA permits applicants to broadly seek judicial review whenever they are denied inspection of a public record by filing a complaint in the appropriate circuit court jurisdiction. See SG § 10-623(a). We have reiterated on numerous occasions that the PIA reflects the need for wide-ranging access to public records, and therefore, the statute should be construed in favor of disclosure for the benefit of the requesting party. See, e.g., Hammen v. Balt. County Police Dep't, 373 Md. 440, 457, 818 A.2d 1125, 1135 (2003) ("[T]he provisions of the [PIA] reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government.") (emphasis in original); Kirwan v. The Diamondback, 352 Md. 74, 81, 721 A.2d 196, 199 (1998) (same); Fioretti, 351 Md. at 73, 716 A.2d at 262 (same); A.S. Abell Pub. Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983) (same).

417 Md. 401, 407-08 (2010) (Footnote omitted).

B. Disclosure of Institutional Base File

In response to Short's request for his institutional base file, Simpson directed him to fill out a request form because of the record's confidential nature....