United States District Court, D. Maryland, Southern Division
J. HAZEL, United States District Judge.
Se Plaintiff Eric Wang submitted a request for documents
to the City of Rockville ("the City") on April 24,
2017 under the Maryland Public Information Act
("MPIA"), Md. Code Gen. Prov. §§4-101
et seq. The City collected the documents but denied
Plaintiffs request to waive the associated fee. Plaintiff
filed suit and claims that the City denied his fee waiver
request in violation of MPIA (Count I) and the United States
and Maryland Constitutions (Count II). Presently pending
before the Court is the City's Motion for Summary
Judgment, ECF No. 13, and Plaintiffs Cross Motion for Partial
Summary Judgment and Permanent Injunctive Relief as to Count
I, ECF No. 15. No. hearing is necessary. Loc. R. 105.6 (D.
Md. 2016). For the following reasons, both motions are
April 24, 2017, Plaintiff submitted a MPIA request to Louise
Atkins, MPIA Coordinator for the Rockville, Maryland City
Manager's Office, for records related to the City's
management and use of automated traffic control systems,
including red light and speed cameras. ECF No. 13-2.
Following communications with Atkins on how to more
efficiently narrow the City's search parameters,
Plaintiff submitted a revised MPIA request on May 4, 2017.
ECF No. 13-6; see also ECF No. 13-3 ¶ 4, 13-4
¶ 2. Upon receipt of the revised request, Atkins
informed Plaintiff that pursuant to City policy, the City
would search for and review responsive documents, including
emails from city officials, but that the City would charge
Plaintiff for the actual cost of its review beyond the first
two hours of time incurred. ECF No. 13-7.
11, Atkins informed Plaintiff that many of the requested
documents were publically available on-line, including budget
documents, speed and red light camera program goals, and
public meetings, and provided the associated links. ECF No.
13-9. However, Atkins estimated that the City would need to
spend four to five hours to perform a search of city
officials' emails at a cost to Plaintiff of $125-250.
Id. On May 19, the City informed Plaintiff that it
would respond to his MPIA request by May 26, 2017 at an
anticipated cost of $150.25, plus copying charges. ECF No.
21, Plaintiff requested a fee waiver, stating that his
document request was in furtherance of the public interest.
ECF No. 13-11. Plaintiff indicated that he intended to use
the documents "for use in an op-ed regarding the
proliferation of speed cameras and red light cameras in the
metropolitan Washington, DC area, " and provide the
documents to the Maryland Drivers Alliance. ECF No. 13-11 at
2. Plaintiff further suggested that his MPIA request
warranted a fee waiver because he intended to reveal details
of government operations related to one of the City's
major financial undertakings-not for a personal, private, or
commercial purpose. ECF No. 13-11 at 2. Ultimately, Atkins,
on behalf of the City, denied Plaintiffs fee waiver request,
indicating that "[t]he City does not find that the
reasons you offered are in the public interest and does not
believe that a waiver is in order." ECF No. 13-12. The
City further indicated that it had provided the two most
expensive hours of its staffs search free of charge and
offered to provide the responsive documents in an electronic
format to save Plaintiff copying charges. Id. Though
correspondence between Plaintiff and the City occurred
predominantly through Atkins, Cynthia Walters, Deputy City
Attorney, was personally involved in evaluating and
adjudicating Plaintiffs fee waiver request. ECF No. 13-3
¶¶ 2, 3. In evaluating Plaintiffs fee waiver
request, Walters consulted with both the City Attorney and
the City Manager, who is also the official custodian of
records. Id. ¶ 7.
satisfied with the City's response, Plaintiff filed suit
in Montgomery County Circuit Court on June 12, 2017. ECF No.
2. The City filed a Notice of Removal on July 28, 2017,
asserting that this Court has federal question jurisdiction
over Count II pursuant to 28 U.S.C. § 1331 and
supplemental jurisdiction over Count I pursuant to 28 U.S.C.
§ 1367. ECF No. 1.
STANDARD OF REVIEW
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "This standard provides that the
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact." Anderson v. Liberty Lobby Inc., 477 U.S.
242, 247-48 (1986) (emphasis in original). Thus, "[t]he
party opposing a properly supported motion for summary
judgment 'may not rest upon the mere allegations or
denials of [his] pleadings, ' but rather must 'set
forth specific facts showing that there is a genuine issue
for trial.'" Bouchat v. Baltimore Ravens
Football Club. Inc., 346 F.3d 514, 525 (4th Cir. 2003)
(quoting Fed.R.Civ.P. 56(e)) (alteration in original).
the Court may rule on a motion for summary judgment prior to
commencement of discovery, see, e.g., Demery v. Extebank
Deferred Compensation Plan (B), 216 F.3d 283, 286 (2d
Cir. 2000), Federal Rule of Civil Procedure 56(d)
"mandates that summary judgment be denied when the
nonmovant has not had the opportunity to discover information
that is essential to his opposition." Pisano v.
Strach, 743 F.3d 927, 931 (4th Cir. 2014) (internal
citation and quotation marks omitted). "To obtain Rule
56(d) relief, the non-moving party bears the burden of
showing how discovery could possibly create a genuine issue
of material fact sufficient to survive summary judgment or
otherwise affect the court's analysis."
Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d
406, 411 (4th Cir. 2015).
provides the public with the right to inspect public records
of Maryland State and local government agencies, including
the City, but the agency may charge a reasonable fee to
search for, prepare, and reproduce the requested records. Md.
Code Gen. Prov. § 4-206(b)(1). The agency may waive this
fee if "after consideration of the ability of the
applicant to pay the fee and other relevant factors, the
official custodian determines that the waiver would be in the
public interest." Id. §
4-206(e)(2)(ii). While the public policies advanced by MPIA
are virtually identical to that provided in the federal
Freedom of Information Act ("FOIA"), Action
Committee for Transit, Inc. v. Town of Chevy Chase, 145
A.3d 640, 648 (Md. Ct. Spec. App. 2016), only MPIA specifies
that the ability of an applicant to pay is a relevant
consideration in granting a fee waiver request. Cf.
FOIA, 5 U.S.C. § 552(a)(4)(A)(iii) ("documents
shall be furnished without any charge ... if disclosure of
the information is in the public interest because it is
likely to contribute significantly to public understanding of
the operations or activities of the government and is not
primarily in the commercial interest of the requestor").
Plaintiff alleges that the City denied his fee waiver in
violation of both MPIA and the First Amendment of the U.S.
Constitution. Because the Court's determination of
Plaintiff s MPIA claim depends, in part, on his First
Amendment claim, the Court will address Count II first.
First Amendment Claim (Count II)
Count II, Plaintiff alleges that the "City denied
Plaintiffs fee waiver request because of the City's
animus against Plaintiffs viewpoint and Plaintiffs expressed
intention to use the requested documents in a manner critical
of certain City government programs, " in violation of
the First Amendment of the Constitution and Article 40 of the
Maryland Declaration of Rights. ECF No. 2 ¶ 21. As a
general matter, government officials may not restrict speech
solely based on the opinion or perspective of the speaker,
and imposing financial burdens based on the content of the
speech or viewpoint ...