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Amster v. Baker

Court of Appeals of Maryland

May 22, 2017


          Argued: March 3, 2017

         Circuit Court for Prince George's County Case No.: CAL 12-19598

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.


          Adkins, J.

         Statutory access to commercial information contained in public records requires courts to strike a balance between government transparency and the protection of private commercial interests. Petitioner Jayson Amster seeks access to a lease between Respondent Calvert Tract, LLC ("Calvert Tract") and the grocery store Whole Foods, which was voluntarily provided to Respondent Prince George's County ("the County") while Calvert Tract's zoning application was pending. This case presents the question of how a trial court should determine whether portions of a public document fall within the confidential commercial information exemption to the Maryland Public Information Act ("the MPIA" or "the Act").


         Calvert Tract owns about 36 acres of land in northern Prince George's County, near the intersection of U.S. 1 and Maryland Route 410. In October 2011, Calvert Tract submitted a zoning application to the Prince George's Planning Board of the Maryland-National Capital Park and Planning Commission ("the Planning Board") seeking to use the land for a mixed-use town center. Around the same time, Calvert Tract entered into a lease with Whole Foods for a grocery store to "anchor[ ]" the new development. Calvert Tract voluntarily provided a redacted version of the lease to Prince George's County Executive Rushern L. Baker "as part of the ongoing discussions of the development of the property." The Planning Board approved Calvert Tract's zoning application, which was then sent to the District Council for further review. The District Council approved the application in the summer of 2012.

         In April 2012, Petitioner filed an MPIA request with Baker seeking access to the lease between Whole Foods and Calvert Tract. The Prince George's County Office of Law denied Petitioner's request, explaining that the lease was not subject to MPIA disclosure. In July 2012, Petitioner filed a complaint against Baker in the Circuit Court for Prince George's County seeking access to the lease.[1]

         Petitioner alleged that proponents of Calvert Tract's zoning application referenced deadlines in the Whole Foods lease to urge the District Council to expedite the application process. He sought access to the lease, in part, to validate this information. Attached to his complaint, Petitioner included a letter from Baker to a citizen of the County, Kate Kelly, who had inquired about the zoning application. The letter indicated that Calvert Tract's lease with Whole Foods influenced Baker's decision to support its zoning application. Baker explained, "I strongly believe that attracting retailers of the quality of Whole Foods is important to our County." He concluded, "I am persuaded that the dialogue should be focused on how we ensure that this is a development that the community can support and how we can improve upon what has been proposed."

         The court granted Calvert Tract's motion to intervene as a defendant, and both Calvert Tract and Baker filed motions for summary judgment arguing that the lease was exempt from disclosure as confidential commercial information. Calvert Tract also filed an affidavit from its employee, Jane Cafritz, in which she stated that: (1) the Whole Foods lease was "the product of extensive confidential negotiations" between Calvert Tract and Whole Foods; (2) Calvert Tract provided a redacted copy of the lease to the County; (3) Calvert Tract "did not intend for the lease to become publicly available"; (4) "Calvert [Tract] does not customarily publicly disclose its commercial leases"; (5) "[n]either Calvert [Tract] nor Whole Foods has made the lease available to the general public"; and (6) "[d]isclosure of the Whole Foods lease would place Calvert [Tract] at a disadvantage when negotiating future commercial leases for the property."

         Petitioner filed a motion opposing summary judgment and attached an affidavit from Kelly in which she testified that the project manager for the new development announced at a public meeting that the Whole Foods lease requires "grading [to] begin by August 2013" and that the store "must open by February 2015." Petitioner argued that the County could not "refuse to release to [Petitioner] what has already been made public."

         At the summary judgment hearing, the trial court applied the test established in Critical Mass. Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992), to determine what constitutes confidential commercial information under the federal Freedom of Information Act ("the FOIA"). It concluded that the lease was confidential commercial information and granted summary judgment. The court also substituted the County in as a defendant, dismissing the suit against Baker as an individual.[2] Petitioner filed a motion to reconsider the judgment and attached his own affidavit, which stated that he heard the Whole Foods CEO reveal on the radio a lease term for a store in Detroit. The trial court denied the motion. Petitioner appealed to the Court of Special Appeals.

         The Court of Special Appeals affirmed the trial court's grant of summary judgment based on the Critical Mass. test. Amster v. Baker, 229 Md.App. 209, 228 (2016). The intermediate appellate court further held that the public release of certain information within the lease did not waive the confidential commercial information exemption. Id. at 231-32. The court explained that the contents disclosed "constituted a 'small portion' of the lease, not the detailed, technical, or specific information that appellant was requesting." Id. at 231 (quoting Bowen v. U.S. Food & Drug Admin., 925 F.2d 1225, 1228 (9th Cir. 1991)). Additionally, the court stated that because the information was disclosed by Calvert Tract, and not by the County, the release cannot limit the County's ability to invoke the confidential commercial information exemption. Id. at 232. Lastly, the court concluded that MPIA disclosure of any severable portions of the lease was not appropriate because it might deter individuals from voluntarily providing commercial information to the government. Id. at 238-41. Petitioner appealed.

We granted certiorari to answer the following question:[3]
Did the trial court err in entering summary judgment on the grounds that the Whole Foods lease was protected from disclosure under the MPIA's confidential commercial information exemption?

         Because we answer this question in the affirmative, we vacate the judgment of the Court of Special Appeals.


         Petitioner appeals from the trial court's grant of summary judgment on his MPIA request. We have yet to enunciate a standard of review for summary judgment granted in MPIA cases. Under the FOIA, federal circuit courts are split on this question. Recognizing that trial courts often make factual determinations at the summary judgment stage in FOIA cases, some federal circuit courts limit their review to "whether (1) the district court had an adequate factual basis for the decision rendered and (2) whether upon this basis the decision reached is clearly erroneous." Bowers v. U.S. Dep't of Justice, 930 F.2d 350, 353 (4th Cir. 1991) (citation omitted); see also Rubman v. U.S. Citizenship & Immigration Servs., 800 F.3d 381, 388 (7th Cir. 2015); Sheet Metal Workers Int'l Ass'n, Local Union No. 19 v. U.S. Dep't of Veterans Affairs, 135 F.3d 891, 896 (3d Cir. 1998). Others adhere to the traditional standard of review for summary judgment and review the district court's decision de novo. See, e.g., Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 988-89 (9th Cir. 2016); Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010); Juarez v. Dep't of Justice, 518 F.3d 54, 58 (D.C. Cir. 2008); Missouri ex rel. Garstand v. U.S. Dep't of Interior, 297 F.3d 745, 749 (8th Cir. 2002).

         The U.S. Court of Appeals for the Ninth Circuit recently departed from its past decisions applying the limited two-step review in favor of the traditional de novo approach. The court explained, "By definition, summary judgment may be granted only when there are no disputed issues of material fact, and thus no factfinding by the district court. Thus, where the district court has made a factual determination, summary judgment cannot be appropriate." Animal Legal Def. Fund, 836 F.3d at 989-90 (citation and internal quotation marks omitted). We agree. Accordingly, we review the trial court's grant of summary judgment to Respondents without deference.


         Petitioner argues that the trial court (1) erred in adopting the Critical Mass. test to determine whether the Whole Foods lease is protected from disclosure by the MPIA's confidential commercial information exemption and (2) failed to gather sufficient information about the contents of the lease to make a determination as to whether the entire document falls within the exemption. Respondents contend that the trial court properly applied the Critical Mass. test, and that ...

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