Barbera, C.J., Greene Adkins McDonald Watts Hotten Getty, JJ.
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.
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.
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
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
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.
The Maryland Public Information Act
General Right of Access to Public Records
Maryland Public Information Act is currently codified at
Maryland Code, General Provisions ("GP"),
§4-101 et seq. The statute is similar, although
not identical, to the federal Freedom of Information Act
("FOIA"). 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).
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,
"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).
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
Exceptions to Disclosure Obligation
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.
Controlled by Other Law.
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. 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).
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. 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
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). 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
Catch-all Exception by Court Order.
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).
Role of the Custodian of Records
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.
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
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").
Process for Requesting Access to Records
person who wishes to inspect or copy public records typically
submits a written request to the appropriate custodian of
records. GP §4-202. 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).
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).
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. 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).
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). 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). 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).
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). If the requestor substantially prevails
in the action, the court may assess reasonable attorney's
fees and costs against the agency. GP
Factual Background and Procedural History
record, as best we can determine,  reveals the following.
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
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"). 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").
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.
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). 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).
Disposition of the Traffic Citation
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.
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 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
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. 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.
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.)
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.
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
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.
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.
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."
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. 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.
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.
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
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