January 11, 2016.
Circuit Court for Baltimore City. Case No. 24-C-13-004661.
BY Erik M. Zimmerman (Francis J. Manion, Geoffrey R. Surtees,
American Center for Law & Justice of New Hope, KY; John
Garza, The Garza Law Firm, P.A. of Rockville, MD) on brief
BY Joshua N. Auerbach, Assistant Attorney General (Sarah W.
Rice, Assistant Attorney General, Brian E. Frosh, Attorney
General of Maryland Baltimore, MD) on brief FOR RESPONDENT.
C.J., Greene, Adkins, McDonald, Watts, Harrell, Glenn T., Jr.
(Retired, Specially Assigned), Wilner, Alan M. (Retired,
Specially Assigned), JJ. Opinion by Harrell, J. McDonald, J.,
Md. 380] Harrell, J.
foster transparency in the operation of our State government,
disclosure of documents and records relating to the operation
of the government is a desirable priority generally. Public
policy regarding such disclosure is made manifest by a strong
presumption in favor of disclosure. See Kirwan
v. The Diamondback, 352 Md. 74, 80, 721 A.2d 196, 199
(1998). Maryland's strong policy of disclosure is
expressed in its Public Information Act (" PIA" ).
Swimming against that strong current, denial of information
requested pursuant to the PIA is the subject of the current
impetus to regulate specifically surgical abortion facilities
arose in Maryland following an investigation into the
activities in Maryland of a doctor by the name of Steven [446
Md. 381] Brigham, who operated abortion clinics in multiple
states. See Erik Eckholm, Maryland's Path to
an Accord in Abortion Fight, New York Times (July 10,
[https://perma.cc/BAQ2-57E6 ]. Dr. Brigham " was not
licensed to practice in Maryland [and] had not even been
required to notify the state health department when he set up
[an] Elkton center to complete late-term abortions, after
about the 14th week of pregnancy." Id.
lack of specific governmental oversight led to dangerous
conditions for women seeking abortions in Maryland and
resulted, in 2012, in the Maryland Department of Health and
Mental Hygiene (" DHMH" ) adopting new procedures
regarding the application process for surgical abortion
facilities. The regulations required that individuals and
other entities must obtain a license from the Secretary of
DHMH before establishing or operating such a facility.
See COMAR 10.12.01.02. Along with a $1500
application fee, any individual or entity who wishes to
operate a facility must be compliant with relevant State and
federal laws, file an application with DHMH, and "
submit a written description of its quality assurance
program" to DHMH. See COMAR 10.12.01.03.
March 2013, Petitioner Andrew Glenn, pursuant to the Public
Information Act (" PIA" ), Maryland Code (2014),
General Provisions Article, § 4-101, et seq.
(" Gen. Prov." ), requested the records of
all such applications submitted for a license under these
regulations. DHMH responded to Glenn's PIA request on 3
July 2013, providing copies of the applications, but with
certain information redacted. DHMH redacted the names and
email addresses (where the email address [446 Md. 382]
contained the individual's name) of individuals who were
listed as owners, administrators, and medical directors for
each facility, asserting that it " was in the public
interest to deny access to those particular pieces of
information" pursuant to Gen. Prov. § 4-358(a).
There was no redaction of corporate or other business names
July 2013, DHMH filed a petition in the Circuit Court for
Baltimore City, pursuant to Gen. Prov. § 4-358(b),
seeking judicial confirmation for the continued denial of the
names and email addresses of these individuals. The Circuit
Court conducted a hearing on 18 April 2014 to hear
argument. DHMH, arguing that disclosure of the
redacted information was against the public interest, cited
to instances where medical doctors and individual owners of
this type of facility have been harassed, assaulted, or
murdered around the United States over the last few decades.
Glenn relied essentially on the presumption in favor of
disclosure under the PIA. On 8 May 2014, the Circuit Court
granted DHMH's petition, indicating that the agency's
decision to redact was made on the basis of public safety
concerns for those individuals who proposed to operate the
appealed timely to the Court of Special Appeals, which
affirmed the Circuit Court's judgment on 21 April 2015 in
an unreported opinion. The intermediate appellate court gave
deference to " the agency's interpretation of
statutes that [446 Md. 383] it administers" and found
cases decided under the federal Freedom of Information Act
(" FOIA" ) to be persuasive. The Court of Special
Appeals concluded " that DHMH provided a reasonable and
sufficiently supported explanation" for redaction due to
the national historical record of violence and harassment
towards abortion providers and the potential chilling effect
it would have on providers if redaction did not occur.
granted Glenn's Petition for a Writ of Certiorari,
Andrew Glenn v. Maryland Department of Health and Mental
Hygiene, 444 Md. 639, 120 A.3d 766 (2015), to consider
the following questions:
1. Did the Court of Special Appeals err in granting deference
to DHMH's legal conclusion that it was authorized, under
Gen. Prov. § 4-358 of the Maryland PIA, to redact the
records in question?
2. Did the Court of Special Appeals err in substituting for
the PIA's requirement of proof of " substantial
injury to the public interest" the far less demanding
standard of mere " greater risk" that disclosure of
public information might have a " chilling effect"
on owners of regulated businesses?
we do not agree completely with some of the reasoning of our
intermediate appellate court brethren, we affirm the judgment
that redaction and denial of the relevant information in this
case was appropriate.
review for clear error the decision by an agency to deny
disclosure to an individual requesting information under the
PIA. We determine whether the " court had an adequate
factual basis for the decision it rendered and whether the
decision the court reached was clearly erroneous."
Comptroller of Treasury v. Immanuel, 216 Md.App.
259, 266, 85 A.3d 878, 883 (2014)
(citing Haigley v. Dep't of Health & Mental
Hygiene, 128 Md.App. 194, 210, 736 A.2d 1185, 1193
(1999)). Under this standard, " [w]hen an action has
been tried without a jury, the appellate court will review
the case on both the law and the evidence [and] will not set
aside the judgment of the [446 Md. 384] trial court on the
evidence unless clearly erroneous." Maryland Rule
contends that the Court of Special Appeals's decision
undermines the Public Information Act and grants "
unbridled discretion to government agencies to keep
information hidden from the public scrutiny." He argues
further that the intermediate appellate court misinterpreted
the standard set forth in Gen. Prov. § 4-358 and created
" precedent" that applies a less stringent standard
than required in PIA cases where nondisclosure is invoked.
DHMH responds that the Court of Special Appeals concluded
correctly that, based on public safety, public health, and
health access harms related to harassment of abortion
providers, it was within the authority of DHMH to redact the
names of the designated categories of individuals involved
with the applications for the proposed surgical facilities
and that such redaction should be continued.
The Maryland Public Information Act
Enacted in 1970, the PIA was created to " provide the
public the right to inspect the records of the State
government or of a political subdivision within the
State." Haigley, 128 Md.App. at 207, 736 A.2d
at 1191 (quoting Faulk v. State's Attorney for
Harford County, 299 Md. 493, 506, 474 A.2d 880, 887
(1984)). The PIA provides a general right to information --
" [a]ll persons are entitled to have access to
information about the affairs of government and the official
acts of public officials and employees." Gen. Prov.
§ 4-103(a). Accordingly, " [t]o carry out the right
set forth in subsection (a) of this section, unless an
unwarranted invasion of the privacy of a person in interest
would result, this title shall be construed in favor of
allowing inspection of a public record." Gen. Prov.
§ 4-103(b). Unsurprisingly, the provisions of the
statute are to be " liberally construed. . . in order to
effectuate [446 Md. 385] the Public Information Act's
broad remedial purpose." Haigley, 128 Md.App.
at 208, 736 A.2d at 1192 (internal quotation marks omitted).
are " well-established general principles governing the
interpretation and application of the [PIA which] create a
public policy and a general presumption in favor of
disclosure of government or public documents."
Maryland Dep't of State Police v. Maryland State
Conference of NAACP Branches, 430 Md. 179, 190, 59 A.3d
1037, 1043 (2013) (citation and internal quotation ...