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Glenn v. Maryland Dep't of Health & Mental Hygiene

Court of Appeals of Maryland

February 22, 2016


         Argued January 11, 2016.

Page 246

          Circuit Court for Baltimore City. Case No. 24-C-13-004661.

         ARGUED 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 FOR PETITIONER.

         ARGUED 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.

         Barbera, 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., concurs.


Page 247

          [446 Md. 380] Harrell, J.

          To 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 litigation.


         An 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, 2013), [ ]. 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.

         This 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 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

         On 12 March 2013, Petitioner Andrew Glenn, pursuant to the Public Information Act (" PIA" ), Maryland Code (2014), General Provisions Article, § 4-101, et seq. (" Gen. Prov." ),[1] 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). [2] There was no redaction of corporate or other business names of applicants.

Page 248

          On 19 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.[3] The Circuit Court conducted a hearing on 18 April 2014 to hear argument.[4] 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 facilities.

         Glenn 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.

         We 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?

         Although 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.


          We 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)

Page 249

(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 8-131(c).


         I. Contentions

         Glenn 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.

         II. 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).

          There 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 ...

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