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Amster v. Baker

Court of Special Appeals of Maryland

August 30, 2016


          Woodward, Leahy, Reed, JJ.


          Woodward, J.

         On 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.

         On July 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 information.[1]

         On June 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.

         On 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)?

         For reasons set forth below, we answer this question in the negative and affirm the judgment of the circuit court.


         Calvert 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."[2] County officials acknowledged the lease's existence in communications with constituents.

         Appellant, 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 granted.

         Calvert 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;[3] (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).

         The 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].

(Emphasis added).

         The court also dismissed the County Executive as a defendant and substituted the County in his place.

         Appellant filed a motion to reconsider, alter, or amend, which the trial court denied. Appellant filed his timely notice of appeal on October 30, 2013.[4]


         Appellant 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. test.[5]

         Appellant 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.

         Finally, 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.

         Appellees 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 County."

         Calvert 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 further."

         Furthermore, 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."


         The Court of Appeals set out the appellate standard of review for a grant of summary judgment in Tyler v. City of College Park:

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).

         When 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).


         The 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).

         The Act 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 § 4-203(c)(3).

         At issue in the instant case is a second category exemption ...

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