United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
case arises from pro se Plaintiff Eric Wang's
request to Defendant City of Rockville, Maryland (the
“City”) for documents pertaining to the
City's red-light and speed camera program. Plaintiff
filed this action in Montgomery County Circuit Court
challenging the City's denial of a public interest fee
waiver as contrary to the Maryland Public Information Act
("MPIA") and a violation of the First Amendment of
the United States Constitution. Defendant removed the case to
this Court and the parties filed cross-motions for summary
judgment. The Court denied both motions, see ECF No.
19, the parties conducted discovery, and have now submitted
renewed cross-motions for summary judgment, see ECF
Nos. 23, 25. No. hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). Defendant's Motion for Summary
Judgment on Count II of the Complaint is granted, and Count I
is remanded to Montgomery County Circuit Court.
Plaintiff's Motion is denied.
April 24, 2017, Plaintiff submitted an initial MPIA request
for documents regarding the City's automated traffic
enforcement systems. ECF No. 23-2. The City assisted
Plaintiff in narrowing his request, see ECF Nos.
23-3, 23-4, and he submitted a new MPIA request on May 4,
2017, ECF No. 23-6. The City responded that Plaintiff would
be charged $150.25 for the request, constituting five hours
of staff time, two of which would be provided free of charge.
ECF No. 23-11. Plaintiff responded with a fee waiver request
based on his belief that it related to matters “of the
utmost public concern that the city's residents need and
deserved to know.” ECF No. 2-3 at 3. Specifically, he
stated that he planned to distribute the documents to the
Maryland Drivers Alliance and use the obtained materials in
“an op-ed regarding the proliferation of speed cameras
and red-light cameras in the metropolitan Washington, DC
area.” ECF No. 2-3 at 2. The City denied the request,
explaining that it does “not find that the reasons 
offered are in the public interest and does not believe a
waiver is in order.” ECF No. 2-4 at 1. Plaintiff claims
the denial violated both the First Amendment of the United
States Constitution and the MPIA.
STANDARD OF REVIEW
Fed.R.Civ.P. 56, summary judgment is appropriate only when
the Court, viewing the record as a whole and in the light
most favorable to the nonmoving party, determines that there
exists no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The
burden is on the moving party to demonstrate that there
exists no genuine dispute of material fact. Pulliam Inv.
Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). To defeat the motion, the nonmoving party must submit
evidence showing facts sufficient for a fair-minded jury to
reasonably return a verdict for that party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
First Amendment prohibits the imposition of financial burdens
based upon the content of a person's speech.
Rosenberger v. Rector & Visitors of the Univ. of
Va., 515 U.S. 819, 828 (1995). “It is axiomatic
that the government may not regulate speech based on its
substantive content or the message it conveys.”
Id; see also Planned Parenthood of S.C. Inc. v.
Rose, 361 F.3d 786, 795 (4th Cir. 2004)
(“Discrimination can occur if [a] regulation promotes
one viewpoint above others.”). Plaintiff contends that
the City denied his fee waiver because he planned to use the
requested documents to criticize the City's traffic
camera program. If proven, this allegation would constitute
viewpoint discrimination barred by the First Amendment.
See Davison v. Randall, 912 F.3d 666, 687 (4th Cir.
2019) (“Viewpoint discrimination is apparent, for
example, if a government official's decision to take a
challenged action was ‘impermissibly motivated by a
desire to suppress a particular point of view.'”)
(quoting Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 812-13 (1985)).
concedes he has discovered no emails or other internal
communication among City staff suggesting the fee waiver was
rejected due to his opposition to the traffic camera program.
See ECF No. 25-1 at 17. But a plaintiff need not
have direct evidence of viewpoint discrimination in order to
survive summary judgment; indirect evidence can be
sufficient. See Jones v. Potter, 488 F.3d 397, 407
(6th Cir. 2007).
contends that the City's acceptance of other comparable
fee waiver requests is sufficient indirect evidence of
discrimination against his viewpoint. But this argument is
belied by the very record of requests he introduces.
See ECF Nos. 25-7, 25-8. Plaintiff identifies
twenty-seven comparable fee waiver requests, among them
requests from legacy media organizations such as the
Associated Press and the Washington Post, non-profit
organizations such as the American Civil Liberties Union of
Maryland and Montgomery County Partners for Animal
Well-being, and various individuals. Notably, two prior
requests are from Stop Big Brother MD.org, the predecessor
organization to the Maryland Drivers Alliance, and multiple
other requests also concern the City's traffic camera
program. See ECF No. 25-8 at 21-40, 53, 108. Like
Plaintiff's request, many requests seek information that
could be used to criticize city officials, including
reimbursement logs for expenses made by the mayor and council
members, id. at 5, employee grievance records,
id. at 9-11, records relating to automatic license
plate readers, id. at 17-20, and Rockville police
officers' use of force, id. at 97. The City
granted fee waivers in each of these cases, which sharply
rebuts the notion that viewpoint discrimination is at issue
contends that the City's consideration of his ability to
pay-absent a similar consideration for others who requested
fee waivers-is evidence of viewpoint discrimination. But
Plaintiff has not established that the City did not consider
the ability of other requesters to pay. For one, Plaintiff
has not pointed to any evidence as to the City's
considerations in these comparator cases. Plaintiff's
only support for his contention are emails the City sent
granting the fee waivers to members of the media, non-profit
organizations, and other individuals. But none of these
emails contain any statements, one way or another, that
establish the City's considerations when granting fee
waiver requests. It is not reasonable to conclude that,
because the City did not specifically ask a requester the
extent to which they could afford to pay in an email, that
the City did not consider ability to pay at all.
Cynthia Walters, the Deputy City Attorney who evaluated
Plaintiff's fee waiver request, explained that she knew
that Plaintiff worked as an attorney for Wiley Rein LLP, a
large law firm, and thus had “no reason to
believe” that the $150.25 fee was beyond his ability to
pay. ECF No. 23-4 ¶ 11. Plaintiff has not offered any
evidence that the City believed that those who were granted
fee waivers had an equivalent or greater ability to pay than
him. And where the Court could potentially infer a greater
ability to pay, as in the case of The Washington Post, the
greater public interest impact of the request provides the
most reasonable explanation.
most fatal to Plaintiff's First Amendment claim is the
revelation that the City has granted fee waiver requests, on
multiple occasions, to both an organization
(StopBigBrotherMD.org) and an individual who also intended to
criticize the traffic camera program. See ECF No.
25-8 at 21-40. Plaintiff contends that the City's
decision to grant fee waiver petitions in these cases should
have led them to do the same in his case. That may or may not
be so, but generally uneven application of the City's
standards does not, without more, establish that the
City's rejection of Plaintiff's fee waiver petition
was due to viewpoint discrimination. Plaintiff attempts to
distinguish the grant of the fee waivers to
StopBigBrotherMD.org because the organization did not
specifically state that the requested documents would be used
to criticize the City's traffic program. This distinction
is unpersuasive, as it was likely safe to assume that an
organization named StopBigBrotherMD.org did not plan to write
in favor of the City's traffic program.
Furthermore, the City had actual knowledge that the
individual requesting traffic camera documents likely planned
to be critical of that program. See ECF No. 25-8 at
28 (sharing link to an article in which the individual is
described as finding “holes in systems” in
Montgomery County). In short, the viewpoint does not appear
to have been the difference between these comparators.
Plaintiff points to the City's Motion for Summary
Judgment as evidence of viewpoint discrimination, arguing
that it impermissibly criticizes “Plaintiff's
expressed intention to use the requested documents in a way
that defames certain government officials.” ECF No.
23-1 at 6. But in general, “statements by counsel in
briefs are not evidence.” Cochran v. Volvo Group
N.A., 931 F.Supp.2d 725, 730 (M.D. N.C. 2013) (citing
INS v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984)).
Therefore, the Court will not impute upon the City defense
counsel's characterization of Plaintiff's use of the
requested documents. And even if the Court were to impute the
comments onto the City, it is clear from their context that
counsel was simply paraphrasing its view of Plaintiff's
allegations. ECF No. 23-1 at 7 (“Plaintiff also
alleged, with no factual support, that the City denied
the fee waiver request because of the City's supposed