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Glass v. Anne Arundel County

Court of Appeals of Maryland

May 25, 2017

Gary Alan Glass
v.
Anne Arundel County, Maryland, et al.

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

          OPINION

          McDonald, J.

         This case began with what Petitioner's counsel characterized at trial as an episode of "road rage" between a motorist and an off-duty police officer in September 2010. Who was at fault we do not know and need not determine. An investigation into the officer's conduct apparently exonerated the officer; a traffic citation issued to the motorist resulted in an acquittal.

         The matter did not end there. It has achieved an afterlife in several judicial and other forums over the past six years. This appeal stems from one of several public records requests under the Maryland Public Information Act ("PIA") made by the motorist, Petitioner Gary A. Glass, to the Police Department of Respondent Anne Arundel County. The response to that request was coordinated by Respondent Christine Ryder, the Police Department's records manager.

         The records requests submitted by Mr. Glass to the Police Department initially targeted the traffic stop and the internal affairs file created by the Police Department in response to complaints by Mr. Glass about the officer, but later encompassed "any and all" records related to Mr. Glass. Dissatisfied with the handling of his requests, Mr. Glass filed at least two lawsuits under the PIA against the County. The lawsuits have resulted in numerous rulings since 2011 by at least five judges of the Circuit Court for Anne Arundel County, made against the backdrop of three contemporaneous decisions by this Court concerning the limits on public access to police internal affairs files under the PIA.

         As a result of the rulings in the Circuit Court, Mr. Glass obtained a number of records that the County had not found in its initial searches in response to his requests or had initially withheld as privileged. Following a bench trial about whether the County had committed "knowing and willful" violations of the PIA, the Circuit Court held that the County had done so in two respects, but declined to award Mr. Glass the injunctive relief or damages he sought. The Court of Special Appeals disagreed with the Circuit Court in part and held that there was not clear and convincing evidence of any such violations; it agreed with the Circuit Court that Mr. Glass was not entitled to the relief he sought.

         The alleged violations of the PIA turn on whether the County conducted reasonable searches in response to the PIA requests made by Mr. Glass, whether the County actually denied him access to responsive, non-privileged records, and whether a particular privilege (for personnel records) was properly asserted by the County with respect to certain records. For the reasons explained below, we reach the same result as the Court of Special Appeals.

         I Background

         A. The Maryland Public Information Act

         1. General Right of Access to Public Records

         The Maryland Public Information Act is currently codified at Maryland Code, General Provisions ("GP"), §4-101 et seq.[1] The statute is similar, although not identical, to the federal Freedom of Information Act ("FOIA").[2] This Court has frequently relied on case law under FOIA in deciding similar issues under the PIA. See, e.g., Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 76 (1998).

         Based on the principle that "[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees, "[3]the statute provides members of the public with a right to inspect and copy public records, subject to certain exceptions. "Public record" is defined broadly as documentary material that is made or received by a unit of State or local government "in connection with the transaction of public business." GP §4-101(j). The statute lists a number of examples of the myriad forms that a public record may take in addition to paper documents, including digital or electronic versions. Id. For example, email messages sent in connection with public business have long been considered to fall within the definition. See 81 Opinions of the Attorney General 140, 144 (1996).

         The PIA spells out a general process for a person to request and obtain access to a public record (or, if access is denied, learn the reason why). GP §4-201 et seq. The statute is to be construed "in favor of allowing inspection of a public record, with the least cost and least delay" to the requestor, unless "an unwarranted invasion of … privacy" would result with respect to a particular person to whom the record pertains. GP §4-103(b).

         2. Exceptions to Disclosure Obligation

         While the PIA creates a general right of access to public records, it also sets forth numerous exceptions to that general rule. The exceptions fall into four basic categories.

         (1)Disclosure Controlled by Other Law.

         The PIA generally defers to the dictates of other laws that control disclosure of a particular public record. Thus, if another law - e.g., constitutional provision, statute, common law privilege - forbids disclosure of a record, or gives the agency discretion not to disclose the record, that other law controls disclosure of the record. See GP §4-301.[4] For example, a record of a communication covered by attorney-client privilege would not be disclosed in response to a PIA request, unless the client waived the privilege. GP §4-301(1).

         (2)Mandatory Exceptions.

         The PIA itself forbids disclosure of certain specified categories of records. See GP §4-304 et seq. Similarly, the statute forbids an agency from disclosing certain types of information that may appear in a record, even if other parts of the record are open to inspection. See GP §4-328 et seq. These exceptions to the PIA's general rule of disclosure are often called mandatory exceptions. An example of a mandatory exception for entire records, pertinent to this case, is the exception for personnel records of public employees. GP §4-311.[5] An example of a mandatory exception for information (that may be only a portion of a record) is the exception for confidential commercial information. GP §4-335.[6]

         (3) Discretionary Exceptions.

         The PIA specifies other categories of records or information that an agency may withhold from public inspection if it believes that disclosure "would be contrary to the public interest." GP §4-343 et seq. For example, a custodian may deny inspection of interagency or intra-agency letters and memoranda that contain pre-decisional deliberations. GP §4-344. Another example is a record of an investigation conducted by police or prosecutors as well as "an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose." GP §4-351(a).[7] These exceptions to the PIA's general rule in favor of disclosure are often referred to as discretionary exceptions. They are "discretionary" not in the sense that the agency may withhold or disclose as it pleases, but in the sense that the agency must make a judgment whether the statutory standard for withholding a record - that is, disclosure "would be contrary to the public interest" - is met.

         (4) Catch-all Exception by Court Order.

         Finally, even when disclosure of a record is not controlled by other law or precluded by one of the PIA's mandatory or discretionary exceptions, an agency may - subject to certain procedural requirements - temporarily deny inspection of the record if the official custodian believes that inspection would cause "substantial injury to the public interest." GP §4-358(a). The agency must promptly seek a court order in order to continue to withhold the record. See Glenn v. Department of Health and Mental Hygiene, 446 Md. 378 (2016).

         3. The Role of the Custodian of Records

         The PIA assigns important responsibilities in responding to PIA requests to a "custodian" of records. The statute defines "custodian" as "any ... authorized individual who has physical custody and control of a public record." GP §4-101(d)(2). As is evident, an agency may have many custodians of its records. A custodian of records has the responsibility for responding to a PIA request by either allowing inspection of the requested records or asserting the appropriate exceptions. See GP §4-201 et seq., §4-301 et seq.

         Certain special responsibilities are assigned to the "official custodian, " defined as an "officer or employee [of the agency] who is responsible for keeping a public record, whether or not the officer or employee has physical custody and control of the public record." GP §4-101(f). Some decisions are reserved to the official custodian, such as designating records to be disclosed without a written request and deciding when to seek a court order under the catch-all exception. GP §§4-201(c), 4-358. An official custodian is also responsible for "adopting reasonable rules or regulations that ... govern timely production and inspection of a public record." GP §4-201(b).

         In practice, an agency may designate one of its employees, perhaps called a records manager or PIA coordinator, to receive PIA requests and coordinate searches and responses to such requests rather than have each individual custodian (which may include most employees) respond piecemeal to records requests. In responding to a PIA request, a designated custodian generally must enlist the assistance of others who actually hold the records. However, a custodian to whom a PIA request is directed remains responsible for ensuring that the request is appropriately addressed. Ireland v. Shearin, 417 Md. 401, 409-10 (2010); ACLU Foundation of Maryland v. Leopold, 223 Md.App. 97, 125 (2015) (the official custodian may not "kick the PIA responsibility down the chain of command").

         4. The Process for Requesting Access to Records

         A person who wishes to inspect or copy public records typically submits a written request to the appropriate custodian of records. GP §4-202.[8] In responding to a PIA request, the agency is to conduct a search for responsive records. As is the case under the FOIA, the adequacy of the agency's search is measured by whether it is reasonably calculated to uncover responsive records, not by whether it locates every possible responsive record. See Ethyl Corp. v. EPA, 25 F.3d 1241, 1246-47 (4th Cir. 1994).

         The custodian is to grant or deny the request to inspect the records within 30 days. If the request is granted, the records are to be made available immediately or after a reasonable time necessary to retrieve them. GP §4-203. If the request is denied in whole or in part, the custodian is to provide a written explanation of that decision that includes the reasons for the denial, the legal authority supporting the denial, and notice of how the requestor may seek review of that decision. Id. This means that the custodian must specify which exceptions to the general rule of disclosure apply to any records that are being withheld from the requestor. If a particular exception applies to only part of a record, the custodian is to allow inspection of those parts of the record that are open to inspection. GP §4-203(c)(1)(ii).

         5. Fees

         An agency may charge a reasonable fee for fulfilling a PIA request, including the costs of searching for records responsive to the request, reviewing those records for material that falls within an exception to the PIA's general rule of disclosure, and making copies of the records. GP §4-206.[9] The fee assessed to the requestor must bear a reasonable relationship "to the recovery of actual costs incurred by a governmental unit" for the search, preparation, and reproduction of requested public records. Id. The fee may be waived if the custodian decides that it is in the public interest to do so. Id. Following the practice of federal agencies under FOIA, agencies sometimes require pre-payment of fees or a commitment to pay fees when the cost of processing a PIA request is likely to be substantial. See Office of the Attorney General, Maryland Public Information Act Manual (14th ed. 2015) ("PIA Manual") at 7-2; Ireland v. Shearin, 417 Md. 401, 412 n.8 (2010).

         6. Judicial Review

         If an agency denies a request to inspect or copy a public record, the requestor may seek judicial review of that decision in a circuit court. GP §4-362(a).[10] In such an action, the agency has the burden of sustaining its decision. GP §4-362(b). To facilitate its review, the circuit court may require the agency to submit a listing of the withheld records and the basis for withholding each record, sometimes referred to as a "Vaughn index." Cranford v. Montgomery County, 300 Md. 759, 778-79 (1984).[11] The court also may choose to review the withheld records directly and order the agency to submit them for in camera inspection. GP §4-362(c)(2).

         The circuit court may order injunctive relief against the agency - for example, order the agency to produce a record that was withheld from the requestor. GP §4-362(c)(3). At the time of the trial of this case, a court could also award actual damages against the agency if the court found by "clear and convincing evidence" that the agency "knowingly and willfully" failed to disclose a record in accordance with the PIA. GP §4-362(d).[12] If the requestor substantially prevails in the action, the court may assess reasonable attorney's fees and costs against the agency. GP §4-362(f).[13]

         B. Factual Background and Procedural History

         The record, as best we can determine, [14] reveals the following.

         1. The Traffic Stop

         The bare essentials of the precipitating event - a traffic stop - are undisputed. While driving on September 14, 2010, Mr. Glass was stopped and detained by Officer Mark Collier of the Anne Arundel County Police Department, who was off duty at that time. Officer Collier issued a traffic citation to Mr. Glass for following too closely. As a result of that encounter, Mr. Glass immediately filed a complaint against Officer Collier with the Police Department. The Police Department's Internal Affairs Division launched an investigation. The incident also resulted in several successive PIA requests by Mr. Glass to the Police Department. At least two of those PIA requests spawned lawsuits.[15]

         2. 2011 PIA Request

         On March 18, 2011, Mr. Glass submitted a PIA request to the Police Department, seeking "all records" from the date of the traffic stop to the date of the request "that refer to or pertain to Gary A. Glass ... " ("2011 PIA Request").[16] He specifically sought Officer Collier's "logbook and notes, " records of calls made to and from Officer Collier's cell phone, and, most importantly for our purposes, "all internal affairs files on [the] investigation into Mark Collier's conduct" during the traffic stop ("IA File").

         Apparently, some of the records described in the 2011 PIA Request did not exist and some had already been provided to Mr. Glass. In a letter to Mr. Glass dated April 14, 2011, Brenda D. Fraser, the Acting Records Manager for the Police Department, explained that his request for Officer Collier's IA File was being denied under the personnel records exception in the PIA. She noted that, because the IA File was created as part of an investigation of alleged employee misconduct, it was deemed a personnel record. Citing the statutory exception for personnel records, she informed Mr. Glass that the file could not be disclosed under the PIA without a court order. Finally, she advised Mr. Glass of his right, pursuant to the PIA, to seek judicial review of the denial of access.

         3. 2011 PIA Lawsuit

         A few weeks later, on May 4, 2011, Mr. Glass filed suit against the County in the Circuit Court for Anne Arundel County, naming the County, the Police Department, the Police Chief, and the County Attorney as defendants and alleging violations of the PIA. On December 22, 2011, the Circuit Court granted summary judgment in favor of the defendants and explained its reasoning in a written opinion. The court upheld the Police Department's decision to withhold Officer Collier's IA File, citing the personnel records exception and relying on this Court's then-recent decision in Montgomery County v. Shropshire, 420 Md. 362 (2011).[17] The court rejected Mr. Glass' unsupported contentions that the Police Department had not been truthful in reporting the results of its search for records in response to his request. Mr. Glass appealed and the Court of Special Appeals affirmed the Circuit Court's decision in an unreported opinion on May 28, 2013. This Court denied his petition for a writ of certiorari. 435 Md. 268 (2013).

         4. Disposition of the Traffic Citation

         In the meantime, the traffic citation that Officer Collier had issued to Mr. Glass had been litigated in the District Court of Maryland sitting in Anne Arundel County. Mr. Glass was acquitted at the trial of that case in November 2011. The details of that case are not germane to the issues before us. However, we note that, as part of discovery in that case, Mr. Glass obtained some of the requested records from the IA File after an in camera review of the file by the District Court judge under a procedure that treated that file as an otherwise privileged personnel record.[18]

         5. 2012 PIA Request

         On February 22, 2012 - two months after the Circuit Court had upheld the Police Department's withholding of the IA File, but before the resolution of the appeal of that decision - Mr. Glass submitted another PIA request to the Police Department ("2012 PIA Request"). This time, Mr. Glass requested "[a]ny and all records of the police department . . . on Gary A. Glass" without any temporal limitation[19] and without specifically requesting the IA File. Mr. Glass indicated on the form that he was willing to pay fees in connection with the request "with prior notification."

         In response, Christine Ryder, the Police Records Manager, surveyed everyone in the Police Department by email. She responded to Mr. Glass in a letter dated March 21, 2012. First, Ms. Ryder alluded to a conversation between Mr. Glass and an Assistant County Attorney and stated that she would "not address grants and denials previously made." Ms. Ryder then listed a number of records that were responsive to the 2012 PIA Request.[20] Of the listed records, Ms. Ryder indicated that the Police Department would withhold one file consisting of five confidential attorney-client communications - described as a "PIA file maintained by the department's Records Manager" - based on the exception for records covered by attorney-client privilege. She stated that the Police Department would provide copies of the other responsive records, totaling 46 pages, upon the payment by Mr. Glass of $11.50 in accordance with the Police Department's fee schedule.

         In her letter, Ms. Ryder also informed Mr. Glass that she had asked the County's Office of Information Technology ("OIT") to search for archived email that might be responsive to his request for Police Department records, but she had not yet received the results of that inquiry. (Although not part of her letter, testimony at the trial indicated that the Police Department's policy at that time was to store emails on the department's computers for 90 days, after which they were archived with OIT.)

         Ms. Ryder also noted that the Police Department might have other records responsive to his request that were not indexed under his name and therefore had not been located. She solicited his assistance in providing any information that would help locate such records. Finally, she advised Mr. Glass that he could seek judicial review under the PIA of the denial of the records covered by attorney-client privilege.

         On March 28, 2012, Mr. Glass responded to Ms. Ryder's letter. He provided the names of 11 members of the Police Department whom he believed could have records "that pertain to me or to the incident on September 14, 2010 involving Officer Mark Collier and myself." The list included Officer Collier, the Police Chief, and members of the department's Internal Affairs Division, among others. Mr. Glass also listed the names of three commanders of various units of the department whom he believed could help locate electronic communications involving the other employees.

         Ms. Ryder contacted each of the individuals named in Mr. Glass' letter who still worked for the Police Department to double check whether they had records pertaining to Mr. Glass. In a response to Mr. Glass dated May 9, 2012, Ms. Ryder stated that her further inquiry based on the names Mr. Glass had listed had turned up one additional record (a "stored communication log") that she provided to Mr. Glass at no charge.

         In that letter Ms. Ryder also reported the results of the search for archived email conducted by OIT. She stated that a search using the keyword "Glass" produced approximately 7, 500 emails, and a second search using the keyword phrase "Gary Glass" narrowed that result to approximately 1, 000 emails. She stated that the individual emails, however, would need to be inspected for attorney-client privilege before release. Ms. Ryder estimated that it would take 250 hours to review 7, 500 emails, which she estimated would result in a fee of $4, 960 for the search and review time. Alternatively, she estimated that it would take 33 hours to review 1, 000 emails, which would result in an estimated fee of $620. She asked Mr. Glass to let her know how he wished her to proceed. Although the letter itself did not request pre-payment of the estimated fee as a condition of proceeding with a review of the emails for privileged material, it is apparently undisputed that, if Mr. Glass had asked Ms. Ryder to proceed with one of the two options she offered, the County would have required pre-payment to undertake the review.

         Mr. Glass did not respond directly to Ms. Ryder's request for further direction, but two weeks later sent a letter dated May 23, 2012 to the County Attorney, complaining that Ms. Ryder's response did not comply with the PIA. Among other things, Mr. Glass stated his view that many of the 1, 000 archived emails that contained the phrase "Gary Glass" were likely created by Ms. Ryder herself when she broadcast his 2012 PIA Request to the entire Police Department in her effort to find records responsive to that request. Mr. Glass expressed the view that OIT ought to be able to segregate such emails and thereby reduce the need to review them for privileged material. More broadly, he asserted that "[t]here is no reason why there would be attorney-client privilege in any of those records of Ms. Ryder's search." He asked the County Attorney to advise Ms. Ryder to conduct the search and review of the emails as Mr. Glass suggested and provide a new estimate of the number of emails requiring review for attorney-client privilege. He also requested that the County waive any fees related to his request. The County Attorney replied in a brief letter dated May 31, 2012 that opined, without elaboration, that Ms. Ryder's response to Mr. Glass's PIA request had been a "reasonable response . . . consistent with state law."

         6. 2012 PIA Lawsuit

         Mr. Glass apparently decided not to proceed further with Ms. Ryder or the County Attorney and, instead, a couple weeks later, on June 19, 2012, filed another lawsuit against the County under the PIA in the Circuit Court for Anne Arundel County.[21] In the complaint, Mr. Glass made various general allegations that the County had violated the PIA in its response to his 2012 PIA Request, including failing to conduct a search reasonably calculated to discover responsive records, failing to comply with time limitations, charging an unreasonable fee, and failing to grant him a fee waiver. The specific factual allegations of the complaint focused on his traffic encounter with Officer Collier and the suggestion by Mr. Glass that the search of archived emails be conducted in a way that avoided emails seeking responses to his prior PIA requests. He asked the Circuit Court to order the County to produce a Vaughn index of the archived emails containing the phrase "Gary Glass, " to isolate those emails related to attorney-client communications and Ms. Ryder's search in response to Mr. Glass's PIA requests, and to release all other emails to Mr. Glass. He also asked the court to order the County to waive any fees associated with its response to his PIA request and to pay him actual damages for its failure to provide the records. Finally, he asked for an award of attorney's fees and costs.

         7. 2013 PIA Request, Second IA Complaint, and Amended Court Complaint While he was litigating the County's response to the 2012 PIA Request in the Circuit Court and its response to the 2011 PIA Request in the Court of Special Appeals, Mr. Glass submitted another PIA request to the County Executive and Police Chief on February 20, 2013 ("2013 PIA Request"). The 2013 PIA Request sought any records pertaining to him in the custody of the Police Department that were compiled from February 23, 2012 - the day after his 2012 PIA Request - to the date of 2013 PIA Request. In the 2013 PIA Request, he gave some direction to the County on how to conduct the search for records. Among other things, he stressed that he wanted only pre-existing records, not records created as part of the searches in response to his prior PIA requests, specified certain regional and national law enforcement databases he wished to be searched, and requested a waiver of any fees.

         In a letter dated March 7, 2013, Ms. Ryder advised Mr. Glass that she had forwarded his latest request to OIT to conduct an additional search for archived emails, reported that no responsive records were found in searches of certain County databases, stated that she was unable to do a keyword search of one electronic database but offered to undertake a manual search, and advised Mr. Glass to submit separate record requests to State and federal agencies with respect to other databases not under the County's control. She estimated the fee for the manual search of the remaining database to be $2, 560, declined to waive that fee, but suggested that Mr. Glass could refine the date ranges and individual users to be searched on that database in order to reduce the cost of the search.

         Mr. Glass promptly amended the complaint in his 2012 PIA Lawsuit to assert that the County's response to his 2013 PIA Request violated the PIA. The amended complaint also noted that he had made a second complaint to the Police Department concerning Officer Collier's conduct after the trial of his traffic case in the District Court. In the amended complaint he asserted that the County had failed to disclose or ...


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