Court: Court of Special Appeals of Maryland; July 7, 1983; Maryland; State Appellate Court
The Court, led by Justice Garrity, addresses the standards for equity courts in determining public access to records held by local governments under the Maryland Freedom of Information Act (FOIA). The case involves a claim by Blake Construction Company against Montgomery County, prompting media inquiries into the construction of the Executive Office and Judicial Center. The editor of the Sentinel newspapers requested access to related documents but was denied certain records, including intra-agency and interagency memoranda, inspection reports, personal notes, and a consultant’s report.
After partial access to documents, the appellant filed for injunctive relief to obtain the withheld records. Initially, Judge Mitchell ordered an in camera inspection but later recused himself. Judge Barrick, who took over, ruled against the in camera review and dismissed the appellant's complaint. The appellant's appeal questioned whether the circuit court erred in determining the documents were exempt from disclosure and in deciding against the in camera review.
The Court upheld the circuit court's decision, affirming that the FOIA allows custodians to deny access if disclosure contradicts the public interest, and accepted the County's argument that the documents were privileged under the Act. The statute specifically permits withholding interagency and intra-agency communications not accessible to private litigants, which the Court found applicable in this case.
The circuit court based its decision to restrict public access to certain documents solely on their classification as inter-office memoranda, attorneys’ work product, consultants’ reports, meeting notes, and personal notes. Judge Barrick found these documents to be "very similar" to those deemed non-accessible in Wellford v. Hardin, determining that they would not be discoverable by a private litigant. The appellant argues that this ruling was erroneous, claiming insufficient detail was provided to justify the exemption and that the documents could be obtained through litigation discovery. The appellant's argument suggests that the evidence supporting the exemption was inadequate, merging this claim with the assertion that discovery rules in Maryland favor broad access, particularly under circumstances of substantial need or hardship.
Moreover, the appellant contends that the burden of proof for non-disclosure lies with the state agency, which must show that releasing the records would disrupt law enforcement processes or cause other specified harms. This principle is supported by previous rulings, including Equitable Trust Co. v. Md. Comm. on Human Relations, referencing the necessity for specific justification for withholding access. The discussion of law also highlights that exemptions for internal memoranda should not allow agencies to broadly conceal information merely by labeling it as internal, citing Bristol-Myers and the federal statute that encourages open exchanges among policymakers without granting blanket protection.
Purely factual reports and scientific studies are not protected from disclosure under exemptions meant for internal working papers that contain opinions and policy recommendations. An internal memorandum may lose its protected status if cited publicly as the basis for an agency's action. The court's prior opinion incorrectly suggested that certain documents should be reviewed in camera to redact factual information; however, upon reconsideration, the court determined these documents reflect inter-agency communications of an opinion-formative nature and thus fall under the congressional exemption against disclosure. The legislation aims to facilitate inter-agency communication and prevent delays in policymaking, as public disclosure could hinder the free exchange of ideas critical for policy development. Under the intra-agency memoranda exemption, an agency must show that disclosure would be contrary to the public interest, rather than prove specific harms. During a hearing, it was established that the withheld documents comprised discussions among subordinates and superiors regarding policy recommendations and opinions, not final decisions or purely factual information. Testimony indicated that releasing these documents could deter open discussions among staff and raise concerns about external scrutiny from entities involved in litigation with the county. Additionally, it was noted that the Assistant County Attorney had carefully reviewed files and removed non-disclosable memoranda.
The documents in question include intra-agency memoranda from architects to the Office of Design and Construction's leadership, discussing beneficial perceptions for their superiors. Additionally, inter-agency memoranda addressed construction progress issues, while inspection reports ensured a seamless transition from construction to operation. Handwritten notes from architect John McNichol documented his observations from meetings with contractors and consultants. A consultant's report from MDC Systems evaluated the general contractor's progress in relation to claims made by Blake Construction Company. Mr. Hutt, during direct examination, indicated that the withheld documents contained neither factual material nor agency policies, but rather inquiries aimed at alerting supervisors. He cited public interest and ongoing litigation as reasons for withholding the documents, a point he maintained despite limited cross-examination from the appellant’s counsel, who did not call witnesses to contest his testimony. The circuit court found that the evidence presented by the appellee justified withholding the documents, establishing that they fell within an exemption from disclosure and that releasing them would adversely affect public interest related to the agency's operations and pending litigation. The court concluded that the agency met its burden of proof without the need for a balancing test, as the requested documents comprised confidential opinions and deliberations essential for governmental authority.
Memoranda contents can be withheld from disclosure if revealing them contradicts the public interest, as established in various cases. The circuit court appropriately determined that the withheld documents were interagency and intra-agency memoranda exempt from disclosure under Md. Ann. Code, Art. 76A.3(b.v). For in camera review, the appellees submitted all withheld documents to the circuit court along with a detailed ten-page list identifying each document by author, recipient, subject, date, and reasons for non-disclosure, including claims of attorney work product and personal recollections. Judge Barrick concluded that the appellees provided sufficient evidence for the exemption and required the appellant to demonstrate a preliminary case against the exemption to justify in camera inspection. The appellant argued that the chancellor abused discretion by denying the review, citing federal cases that stress the need for specificity by agencies in claiming exemptions. The federal standard allows trial judges broad discretion to order in camera inspections based on the specificity of agency claims versus any evidence presented by the appellant. Ultimately, the decision for in camera review hinges on whether a judge believes it is necessary for making an informed ruling on the exemption claims.
In Maryland, the Court of Appeals has not clarified the statutory provisions for in camera review of documents. However, in *Equitable Trust Co. v. State of Maryland, Comm’n on Human Relations*, the Court of Special Appeals determined that in camera review is discretionary and does not require individual examination of withheld documents. The standard for chancellors in these cases must align with the Freedom of Information Act’s purpose, which is to promote the disclosure of most government information while placing the burden on the agency to justify non-disclosure. Chancellors are not deemed to have abused their discretion if there is sufficient evidence indicating that the documents fall within a statutory exemption. The discretion exercised by chancellors is not limited by the movant's ability to counter the government's justification; instead, the movant’s arguments are additional considerations. In this instance, the County Attorney provided written and oral justifications for withholding documents, demonstrating compliance with the Maryland standard. Although more detailed explanations could have emerged during cross-examination, the appellant did not actively pursue this. The County established that the documents were privileged memoranda, leading to the conclusion that Judge Barrick did not abuse discretion in denying the in camera review request. The judgment was affirmed, with the appellant responsible for costs. The relevant statute outlines the conditions under which public record inspection may be denied, including interagency memorandums not available to private litigants.
Each agency is required to make certain information available to the public, but this obligation does not extend to inter-agency or intra-agency communications that would not be accessible to external parties involved in litigation with the agency. Specifically, reports prepared by outside consultants for agency counsel are classified as "intra-agency memoranda" and are exempt from disclosure as attorney work product or part of the agency's decision-making process, as established in relevant federal case law. Under Maryland law, if an individual is denied access to records, they can petition the circuit court to review the records in camera to determine if any exemptions apply. The responsibility to justify withholding records lies with the defendant, who may present a memorandum for the court's consideration. The Court of Appeals did not explore this provision in a previous case because it focused on executive privilege, which favors confidentiality, contrasting with the Maryland Freedom of Information Act's presumption in favor of public disclosure.
