Woodward, Leahy, Reed, JJ.
April 19, 2012, appellant, Jayson Amster, filed a Maryland
Public Information Act ("MPIA") request with
Rushern L. Baker, County Executive of Prince George's
County, seeking disclosure of a lease between Whole Foods and
Calvert Tract, LLC ("Calvert Tract"). The Prince
George's County Office of Law denied the request,
informing appellant that the lease was not subject to
disclosure under the MPIA.
3, 2012, appellant filed a complaint in the Circuit Court for
Prince George's County against the County Executive,
seeking disclosure of the Whole Foods lease. Subsequently,
the court granted the motion of appellee, Calvert Tract, to
intervene as a defendant. The County Executive and Calvert
Tract both filed motions for summary judgment on the grounds
that the lease was exempt from disclosure under the
MPIA's exemption for confidential commercial
4, 2013, following a motions hearing, the trial court granted
the motions for summary judgment, ruling that the lease was
exempt from disclosure under the MPIA. The court also
dismissed the County Executive as a defendant and substituted
appellee, Prince George's County ("the
County"), in his place.
appeal, appellant presents one question for our review, which
we have rephrased as follows:
Did the circuit court err in granting summary judgment by
ruling that the Whole Foods lease was exempt from disclosure
under GP § 4-335(2)?
reasons set forth below, we answer this question in the
negative and affirm the judgment of the circuit court.
Tract owns approximately thirty-six acres of land near the
intersection of Baltimore Avenue (U.S. 1) and East-West
Highway (Maryland Route 410) in Prince George's County.
In October 2011, Calvert Tract sought a zoning change from
R-55 (Single-Family Detached Residential) to MUTC (Mixed-Use
Town Center) in order to develop the land into "a mix of
office, commercial, and residential use." As part of the
development process, Calvert Tract entered into confidential
negotiations and executed a commercial lease with Whole Foods
as the anchor store. Calvert Tract provided a redacted copy
of the lease to the County "as part of the ongoing
discussions of the development of the
property." County officials acknowledged the
lease's existence in communications with constituents.
a member of the Maryland bar and a Prince George's County
resident, submitted an MPIA request to the County Executive
on April 19, 2012, seeking, among other items, "[a]ny
lease for a Whole Foods store . . . located in Prince
George's County." The County Office of Law responded
to the request on May 7, 2012, informing appellant that the
lease was not subject to disclosure under the MPIA because
the lease was "confidential commercial
information." On July 3, 2012, appellant filed a pro
se Complaint for Disclosure of Public Record against the
County Executive in the circuit court, seeking, among other
items, "a certain lease for a Whole Foods grocery store
to be located in Prince George's County which is a
prominent part of pending Zoning Application A-10018."
Calvert Tract filed a motion to intervene, which the court
Tract and the County Executive filed separate motions for
summary judgment, arguing that the lease was exempt from
disclosure under GP § 4-335(2), because the lease is a
private document containing confidential commercial
information that Calvert Tract voluntarily provided to the
government and would not ordinarily release to the public.
Calvert Tract attached an affidavit to its motion, which
stated, among other things, that (1) Calvert Tract entered
into a lease with Whole Foods to open a store at the
intersection of U.S. 1 and Maryland Route 410; (2) the lease
"was the product of extensive confidential
negotiations"; (3) a redacted version of the lease was
provided to the County with the intention of the lease
remaining private; (4) Calvert Tract "does not
customarily publicly disclose its commercial leases";
(5) the lease contains financial information; (6) Calvert
Tract "intends to pursue negotiations with other
businesses to enter into" leases at the property; and
(7) disclosure of the lease "would place Calvert [Tract]
at a disadvantage when negotiating future commercial leases
for the property." Appellant filed an opposition to the
motions for summary judgment, in which he argued that summary
judgment should be denied, because the movants did not meet
their burden of showing that "the document or a
severable portion meets all elements of exemption."
(Emphasis in original).
circuit court held a motions hearing on June 4, 2013, at
which the judge ruled from the bench that the lease was
exempt from disclosure under GP § 4-335(2) and that
appellant was not entitled to an in camera review of
the lease. The court stated the following:
And when I look at [4-335] I do find that it's-that it is
confidential information and confidential financial
information or a trade secret. . . . [I]t's very clear,
based on Critical Mass. [Energy Project v. Nuclear
Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (en
banc), cert. denied, 507 U.S. 984 (1993)] that . . .
there is an exemption for confidential trade secrets,
commercial or financial information . . . . [I]n the
situations with the NAACP, Governor Glendening, and these
type of situations, these are public entities . . . where I
am looking at the information to make the determination of
redaction or not to redact. As a judge, yes, I can go back
and forth. But it's very difficult to do an ex parte with
one party and then report to another party. I end up being an
arbitrator, and I'm a judge. I'm not an arbitrator .
. . that is just a perilous path for a judge to do when it
comes to confidential, financial information. What I may
think is disclosable, may not be really disclosable at all,
and may be the revelation of confidential information. . . .
The law based on the [MPIA] and Critical Mass.
lea[d] me to the conclusion that this is exempted material
and, therefore, I will deny the request of [appellant].
court also dismissed the County Executive as a defendant and
substituted the County in his place.
filed a motion to reconsider, alter, or amend, which the
trial court denied. Appellant filed his timely notice of
appeal on October 30, 2013.
contends that the circuit court erred by ruling that the
confidential commercial information exemption to the MPIA
barred the lease's disclosure. According to appellant,
the federal "Critical Mass" rule, which
provides a categorical exemption from disclosure under the
Freedom of Information Act ("FOIA") for information
voluntarily provided to the government by private parties,
"is inapposite to this case, " because the County
"had no need for the information in the lease." In
addition, appellant claims that "Calvert Tract offered
no 'proof' of the provider's custom for not
disclosing all or part of the document, " which is
required to satisfy the Critical Mass.
further asserts that, even if the lease is exempt under the
confidential commercial information exemption found in GP
§ 4-335(2), that exemption is not absolute. Because
representatives of appellees discussed provisions of the
lease in public, appellant argues that those provisions are
not protected by the MPIA exemption.
appellant claims that other parts of the lease not covered by
the confidential commercial information exemption should be
severed and released, because "[c]ourts will no longer
accept conclusory and generalized allegations of
exemption." Appellant concludes that the trial court
erred in exempting the lease in its entirety, without
conducting an in camera review to determine which
portions of the lease did not constitute confidential
commercial information and could be disclosed.
respond that the circuit court did not err in ruling that the
lease was exempt under the confidential commercial
information exemption of the MPIA, because the lease (1) is
commercial in nature, (2) was submitted to the government
voluntarily, and (3) would not ordinarily be subject to
public disclosure. According to appellees, public disclosure
would allow Calvert Tract's competitors "to derive
an unfair commercial advantage, " and as a consequence,
developers would "be dissuaded from volunteering useful
information to County officials, which will weaken the
ability of County officials to make well-informed, strategic
decisions and to promote economic development in the
Tract also asserts that, although the
"existence of the lease" has been made
public, "at no point have the contents of the lease been
made public." (Emphasis in original). Calvert Tract
argues that the lease "cannot be transformed into a
public record simply because a redacted version has been
provided to the relevant County and not disclosed
appellees claim that "segregability is not an
appropriate remedy, " because the circuit court does not
have sufficient expertise to determine what is confidential
or proprietary information in a commercial lease. The County
argues that cases that call for severable, redacted portions
of exempt documents all concerned "quintessential
government documents" that fell under "different
categories of exemptions" with different purposes, and
thus do not apply to the confidential commercial information
exemption. Calvert Tract claims that, if trial judges were
"permitted to comb through commercial leases, then all
future developers and investors in Maryland will be subject
to potentially inconsistent determinations as to what
elements of a lease are proprietary."
Court of Appeals set out the appellate standard of review for
a grant of summary judgment in Tyler v. City of College
Whether a circuit court's grant of summary judgment is
proper in a particular case is a question of law, subject to
a non-deferential review on appeal. As such, in reviewing a
grant of summary judgment, we review independently the record
to determine whether the parties generated a dispute of
material fact and, if not, whether the moving party was
entitled to judgment as a matter of law. We review the record
in the light most favorable to the non-moving party and
construe any reasonable inferences that may be drawn from the
well-plead facts against the moving party.
415 Md. 475, 498-99 (2010) (citations omitted). Ordinarily,
we "consider only the grounds upon which the trial court
relied in granting summary judgment." Ross v. State
Bd. of Elections, 387 Md. 649, 667 (2005)
(internal quotation marks omitted).
faced with an MPIA dispute, a trial court "must
interpret the [Act's] exemptions narrowly."
Fioretti v. Md. State Bd. of Dental Exam'rs, 351
Md. 66, 77 (1998). "The Public Information Act's
strong preference for public access to government documents
must be considered whenever a court is applying the
particular provisions of the statute." Md.
Dep't of State Police v. Md. State Conference of
NAACP Branches, 430 Md. 179, 191 (2013) ("NAACP
Branches"). The government has the burden of
sustaining its decision to deny the inspection of a public
record. Md. Code (2014), § 4-362(b)(2)(i)(1) of the
General Provisions Article ("GP"); see also
Fioretti, 351 Md. at 78. Whether to conduct an
in camera inspection of the requested
documents falls within the trial court's discretion.
See Cranford v. Montgomery Cnty., 300 Md.
759, 779, 791 (1984).
General Assembly codified a general right to access to public
information in the MPIA. See GP §§ 4-101
to -601. The Act "shall be construed in favor of
allowing inspection of a public record." GP §
4-103(b); see Kirwan v. The Diamondback, 352 Md. 74,
81 (1998) (noting that the Act "must be liberally
construed in order to effectuate the Public Information
Act's broad remedial purpose" (citations and
internal quotation marks omitted)). The Court of Appeals
recently noted, however, that
[w]hile the public policy of the MPIA favors disclosure, the
purpose of the Act reveals a legislative goal other than
complete carte blanche, unrestricted disclosure of
all public records. The legislative purpose underpinning the
MPIA is that "citizens of the State of Maryland be
accorded wide-ranging access to public information
concerning the operation of their government."
Immanuel v. Comptroller of Maryland, __ Md.__, __,
No. 87, September Term 2015 (filed July 12, 2016), slip op.
at 13 (emphasis in original) (citations and internal
quotation marks omitted).
contains three categories of exemptions to the general rule
favoring disclosure. The first category instructs the
custodian to deny inspection "of a public record or any
part of a public record" if inspection would be contrary
to statute, regulation, case law, or court order. GP §
4-301. The second category contains a mandatory requirement
for the custodian to "deny inspection of a public
record" or any part of a public record for specific
types of records, such as hospital records, adoption records,
or personnel records; or records containing specific types of
information, such as medical information, licensing records,
trade secrets, or confidential information. GP §§
4-304 to -326, 4-328 to -340. The third category gives the
custodian discretion to deny inspection "if a custodian
believes that inspection of a part of a public record by the
applicant would be contrary to the public interest." GP
§ 4-343. As to all exemptions, if a custodian denies an
MPIA request, the custodian "shall . . . allow
inspection of any part of the record that is subject to
inspection and is reasonably severable." GP §
issue in the instant case is a second category exemption