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Action Committee for Transit, Inc. v. Town of Chevy Chase

Court of Special Appeals of Maryland

September 1, 2016

ACTION COMMITTEE FOR TRANSIT, INC. ET AL.
v.
TOWN OF CHEVY CHASE

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

          OPINION

          Kehoe, J.

         The Maryland Public Information Act (the "MPIA")[1] permits government agencies to charge a reasonable fee for expenses incurred in the course of responding to a request to inspect public records. See § 4-206 of the General Provisions Article ("GP"), Md. Code Ann. (2014). The MPIA also allows an agency to waive fees upon the request of an applicant if, "after considering the applicant's ability to pay and other relevant factors, the official custodian determines that the waiver would be in the public interest." GP § 4-206(e)(2). The dispositive issue in this appeal is whether an official custodian may take a community organization's past criticisms of the agency into account in deciding whether granting the organization's fee waiver request is in the public interest.

         The Action Committee for Transit ("ACT") and Benjamin Ross appeal from a judgment of the Circuit Court for Montgomery County in favor of the Town of Chevy Chase.[2] ACT and Ross assert that the Town violated the MPIA when it denied their requests for waivers of fees that the Town proposed to charge them for responding to requests for copies of certain Town records. The circuit court concluded that the Town did not violate the Act and entered judgment accordingly. ACT and Ross present two issues, which, for purposes of analysis, are best expressed in terms of whether the circuit court erred in granting summary judgment to the Town as to the claims of ACT on the one hand, and Ross on the other.[3]

         We will vacate the judgment of the circuit court and remand this case for further proceedings.

         Background

         "In cases interpreting an MPIA request, facts necessary to the determination of a motion for summary judgment may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admission of facts, stipulations and concessions." Prince George's County v. The Washington Post Co., 149 Md.App. 289, 304 (2003) (internal quotation and citation omitted). Our summary of the facts is drawn from those sources.

         ACT is a non-stock, non-profit organization that advocates for public transportation in Montgomery County, Maryland. Ross is a published author who has written extensively in print and electronic media about issues regarding the Purple Line. He lives in Bethesda. The Town is a Maryland municipal corporation and, as such, is subject to the MPIA. Todd Hoffman, the Town Manager, is the official custodian of the Town's public records. See GP § 4-101(f).[4]

         The controversy between the parties concerns the Purple Line, a proposed light rail public transit system that, if constructed, will extend from Bethesda to New Carrollton. The Purple Line is a multi-billion dollar project that is proposed to be funded through a combination of federal, State, local, and private sources.[5] Current plans call for a portion of the Purple Line to be located within in a former railroad right-of-way which is currently used as a linear park known as the Georgetown Branch Trail or the Capital Crescent Trail. Part of this trail is located within the Town. Town residents and property owners will be directly affected by the construction and operation of the Purple Line. The Town opposes the project.[6]

         ACT and Ross allege that, in 2008, and as part of its effort to oppose construction of the Purple Line, the Town retained the law firm of Sidley Austin and a civil engineer to review the Maryland Transit Administration's Draft Environmental Impact Statement for the Purple Line. ACT and Ross allege that the Town spent approximately $434, 000 in that effort. ACT and Ross further allege that in 2014, the Town retained the law firm, of Buchanan Ingersoll & Rooney (the "Buchanan Firm"), which in turn subcontracted with two lobbying firms, Chambers, Conlon & Harwell, LLC (the "Chambers Firm") and Alexander & Cleaver, P.A. (the "Alexander Firm"). The Town also retained the public relations firm Xenophon Strategies. All four firms were retained to represent the Town's interests in lobbying both the federal and state governments to deny funding for the Purple Line. The Town paid the Buchanan Firm $20, 000 monthly for its services.

         Early in 2014, the Washington Post and other news sources published several articles detailing the Town's relationship with the four firms, including some details on the monthly fees the Town paid for the firms' services. Additionally, an article in the Washington Post reported that one of the partners in the Buchanan Firm was Robert L. Shuster, whose brother, Bill Shuster, is the chair of the Transportation and Infrastructure Committee of the United States House of Representatives.[7] Spurred by the information contained in these articles, ACT and Ross sought access to the Town's records pertaining to the Town's relationship with these firms. To that end, both ACT and Ross filed a series of MPIA requests with the Town.

         ACT's first request was submitted in February, 2014. ACT sought documents regarding the Town's relationship with the Buchanan Firm; it did not request a fee waiver. The Town provided copies of all non-privileged documents that were responsive to the request without charge because the time spent by Town staff in responding was less than two hours. See GP § 4-206(c) ("The official custodian may not charge a fee for the first 2 hours that are needed" to respond to a request to inspect public records.).

         ACT filed two additional requests in April. The first sought documents pertaining to the Town's relationship with the Chambers and Alexander Firms, as well as any additional documents pertaining to the Buchanan Firm. The second request sought access to privileged documents relating to the Buchanan Firm and documents concerning the Town's relationship with Xenophon Strategies.

         In response to the first April request, Hoffman, the Town Manager, stated that the Town staff would begin searching for documents responsive to the request upon ACT's deposit of $700, noting that it would not provide the two hours of free research because ACT's request was on the same general topic as its February request. As to the second April request, Mr. Hoffman stated that it would provide two hours of free research, but still required a deposit of $250 before it would begin research on the requested documents.

         ACT then requested a fee waiver for both April requests. The Town denied the waiver request on April 23, 2014. By way of explanation, Mr. Hoffman stated that "[i]t is anticipated that the Town will expend a significant amount of time researching and processing [t]he requests."[8]

         On May 21, 2014, ACT submitted another request for documents, asking for substantially the same information sought in the April requests. Meriam Schoenbaum, a part-time news blogger, submitted the request on ACT's behalf, requesting a fee waiver based upon ACT's status as a non-profit and its intent to disseminate the information, and her own status as a journalist.[9] The Town denied Ms. Schoenbaum's request for a fee waiver on June 20, 2014 on both grounds. By way of explanation, the Town's letter stated that: "In your request, you outline your arguments in support of a waiver of all fees . . . . Please be advised your request for a waiver has been considered and denied." The Town further stated that it would not provide the two hours of free research because the previous request filed by ACT related to the same general topic.

         This brings us to the two MPIA requests that are at issue in this appeal: ACT's request dated October 15, 2014 (the "ACT Request"), and Ross's request, which was one of two filed by him on November 10, 2014.

The ACT Request sought:
copies of public records relating to contracts, agreements, and communications between [the Town] and the four firms the Town retained to provide services in relation to the Purple Line public transit project.
ACT also seeks full minutes of closed sessions held by the Town Council . . . . ACT makes this request in order to promote the public's understanding of the Town and the conduct of its public officials in conducting public business relating a major public infrastructure project. ACT intends to contribute significantly to the public's understanding by making public the requested records and the information the records contain.
As part of its request, ACT sought a waiver of fees on three grounds:

         (1) it was entitled to a fee waiver because "the information requested will serve the public interest and contribute significantly to the public's understanding of the business, activities, and public-money expenditures of a government body related to a major public infrastructure project";

         (2) it was not seeking the information for any commercial purpose; and

         (3) ACT did not have the financial resources to pay any fee associated with its request because it was a grassroots, public interest organization run by volunteers, and because its charter requires that any assets to be donated to a 501(c)(3) charitable organization upon dissolution. However, ACT did not attach any documentary support for these assertions.[10]

         On October 27, 2014, counsel for the Town responded to ACT. First, the Town denied ACT's request for a fee waiver. By way of explanation for the denial, counsel stated:

As you know, the [MPIA] authorizes the Town to charge a reasonable fee for making copies and a reasonable fee for researching its records. In your request, you outline your arguments in support of a waiver of all fees associated with the request. Please be advised the request for a waiver has been considered and is denied.

         Additionally, counsel explained that the Town would not provide two hours of free research because the request related "to the same general topic" as ACT's previous request. Finally, counsel provided ACT with an estimate of $879 for the fee the Town would charge to respond to the request and requested that amount as a deposit before the Town processed ACT's request.

         On November 10, 2014, Ross submitted two MPIA requests to the Town. The first was titled: "Re: Maryland Public Information Act Request on behalf of Action Committee for Transit[.]" Ross almost immediately withdrew this request and submitted a second request titled "Re: Maryland Public Information Act Request[.]" Titles aside, the two requests were largely identical, although Ross's second request contained more detail on his status as a member of the media. In both letters, he specified that he was submitting the request as a member of the media:

I am submitting the following request as a member of the media. I am a published author who writes on issues of public interest, such as chemical pollution and urban development. I have written extensively on issues regarding the Purple Line in both print and electronic media. For the last 14 years, I have regularly contributed articles and (in more recent years) blog posts to Dissent magazine and I have written there on issues regarding the Purple Line. I also write at Greater Greater [sic] Washington blog. The purpose of this blog is to provide information about elected officials, development, traffic, and other matters impacting the Greater Washington area, including Montgomery County, Maryland.

         Included in his letter were requests for fee waivers. He listed all of the same grounds included in the ACT Request, but additionally listed several other grounds related to his status as a member of the media, including that: (1) he frequently writes books and articles concerning issues impacting the public, (2) that he has written before on developments concerning the Purple Line, and (3) that providing him more information on the Purple Line would be in the public interest because it, and the Town's expenditures, have garnered coverage in mainstream news outlets.

On November 21, Hoffman denied Ross's request for a fee waiver. He stated:
In your request, you identify yourself as a member of the media as a basis for a waiver of all fees associated with the request. Please be advised that the request for a waiver has been considered and is denied. We do not believe this request is being made in your capacity as a member of the media. This belief is based on the first request you submitted and then immediately withdrew on November 10, 2014, which clearly indicated it was being submitted on behalf of [ACT], along with your known affiliation with ACT. Accordingly, the Town will expect payment in full for all fees associated with the request.

         - The Circuit Court Proceedings -

         In January, 2015, ACT and Ross filed a joint complaint in the circuit court challenging the Town's denial of their fee waiver requests. The complaint alleged that the Town violated the MPIA when it: (1) denied their requests for access to the minutes of the closed meetings between the Town and the lobbying and public relation firms; (2) denied their requests for waivers of the fees associated with the requests; (3) denied providing them with two hours of free research for the requests;[11] and (4) denied ACT's and Ross's requests to review the minutes of closed meetings in which the Town's relationship with the Buchanan Firm and the other lobbyists were discussed.

         In their prayer for relief, ACT and Ross requested that the Town provide access to all of the requested documents, and that the fees associated with the requests be waived. Additionally, ACT and Ross requested that the Town provide them with copies of minutes of the closed meetings of the Town Council that pertained to the lobbyists. Finally, they asked that the court award them attorneys' fees pursuant to § 4-362(f) of the MPIA.[12]

         In response, the Town filed a motion to dismiss, or, in the alternative, a motion for summary judgment. In its motion, the Town took a two-fold approach:

         First, it argued that it denied ACT's and Ross's fee waiver requests based on the grounds contained in ACT's and Ross's requests themselves; as the Town explains this logic: "[T]he Town reviewed ACT's arguments and all of the 'relevant factors' stated by ACT in support of its fee waiver request, considered those factors, and nevertheless decided that the request was denied." (Emphasis deleted.) Notably, the Town did not attach any affidavit from Hoffman, or from anyone else, describing the Town's actual decision-making process or explaining what specific considerations entered into the Town's decision to deny the waiver request.[13] The only evidence in the record concerning the Town's motives are the Town's denial letters themselves.

         Second, the Town provided an explanation of its reasoning in its memorandum in support of its motion. Among other reasons advanced by the Town was the following:

The Town also did not agree that ACT or Ross's fee waiver requests were made in the 'public interest, ' or even that the documents requested were sought for a public purpose. Rather, the history of attacks on the Town by ACT/its members, and previous requests made by ACT and its Officers demonstrated that Plaintiffs sought the fee waiver for their own personal interests in retaliating against the Town for its opposition to the proposed Purple Line project. ACT had posted false accusations against the Town on ACT's website and had repeatedly attacked the Town because of the Town's opposition to the proposed Purple Line project, accusing the Town of acting illegally. The Town, like any private citizen, is entitled to take a position on the public issue. ACT and its members engaged in a smear campaign and utilized the Open Meetings Act Compliance Board[14]and, now this Court, to retaliate against the Town for its position on the proposed Purple Line project. Thus, the Town rightfully disbelieved ACT and Ross's claims that the request for the fee waiver was in the 'public interest.' If anything, ACT and Ross appeared to desire the documents without paying the fee for the 'commercial' or proprietary purpose of attacking the Town for its opposition to a project supported by ACT. Thus, the Plaintiffs' fee waiver requests were carefully considered and all factors militated against a finding by the Town that a fee waiver was in the 'public interest' or was warranted.

(Emphasis added; citation deleted.)

         To buttress these assertions, the Town attached copies of press releases issued by ACT in March of 2014 as exhibits to the memorandum. One release criticized the Town Council for "misinforming" the public about the nature of the services that the Buchanan Firm would provide to the Town. Another stated that the Town "broke the law when its council met in secret to hire an anti-Purple Line lobbyist."[15] Additionally, in its memorandum, the Town asserted that it was entitled to deny Ross's request because: a) it was justified in not crediting Ross's claim that he filed his request in his capacity as a member of the media; b) in any event, Ross was not a member of the media because contributing to a news blog did not qualify one as a member of the media; and c) the records that ACT had sought did not pertain to a matter of public interest.

         After a hearing, the circuit court issued a bench opinion granting the Town's motion for summary judgment. The court denied ACT's and Ross's requests for access to minutes of the closed sessions of Town Council meetings.[16] The court concluded that, since the MPIA does not state that an agency or government must name the factors it relied on in ...


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