265 A.3d 1187
Md. Ct. Spec. App.2021Background
- Between Dec 2019–Jan 2020, Baltimore Action Legal Team (BALT) submitted three MPIA requests to the Baltimore State’s Attorney’s Office (SAO): (1) the SAO’s “do not call” list of 305 BPD officers with alleged credibility problems, (2) investigatory files for BPD investigations closed in 2019 or open >16 months, and (3) files about a named officer; BALT sought fee waivers for requests #2 and #3.
- The SAO refused to produce the list (invoking the personnel-record exemption, work-product, and investigatory exemptions) and estimated large reproduction fees for other requests; it did not grant fee waivers.
- BALT sued in Baltimore City Circuit Court; the circuit court granted summary judgment to the SAO, treating the list as protected personnel/internal-affairs records and as attorney work-product and upholding the fee-denial.
- On appeal, the Court of Special Appeals reversed: it held the list itself (names) is not a personnel record because the SAO lacks supervisory authority and the list does not contain employment/performance information; any underlying internal‑affairs records could be severed/redacted.
- The court also held the list is not attorney work-product because it was a general office tool created to flag credibility concerns, not prepared in anticipation of specific litigation; and the SAO’s denials of BALT’s two fee‑waiver requests were arbitrary and capricious for relying primarily on BALT’s ability to pay and the agency burden without adequate consideration of public‑interest factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the SAO’s “do not call” list is a personnel record under GP § 4‑311 | The list is not a personnel record because it contains only names and was created by SAO (not BPD); SAO lacks supervisory authority and supporting confidential records can be severed | The list was compiled from confidential internal affairs/personnel records, so it is a protected personnel/internal‑affairs record | Reversed: list (names) is not a personnel record; SAO lacks supervisory authority and severance/redaction of supporting IA records is required |
| Whether the list is exempt as investigatory records under GP § 4‑351(b)(1) (would disclosure interfere with law‑enforcement proceedings) | BALT: SAO failed to show particular investigations or explain how disclosure would interfere; blanket claim insufficient | SAO: disclosure could interfere with prosecutions and investigations | Reversed: SAO did not demonstrate a valid reason to withhold the list under GP § 4‑351; a blanket claim was insufficient and severance was possible |
| Whether the list is attorney work‑product | BALT: work‑product protects materials prepared for specific, anticipated litigation only; the list is a routine office tool and publicized already | SAO: the list aids compliance with Giglio/Brady obligations and was prepared because of litigation prospects | Reversed: list is not work‑product — it was created as a general prosecutorial tool, not in anticipation of particular litigation; SAO must identify specific litigation if asserting privilege on remand |
| Whether denial of fee‑waiver requests under GP § 4‑206(e) was arbitrary and capricious | BALT: SAO relied mainly on requester’s ability to pay and production burden, failed to consider public controversy and other relevant factors | SAO: reasonably concluded BALT could pay, disclosures wouldn’t significantly advance public understanding, and production would unduly divert resources | Reversed: denials were arbitrary and capricious — SAO relied primarily on ability to pay and burden without adequately weighing public‑interest factors (e.g., public controversy) |
Key Cases Cited
- E.I. du Pont de Nemours & Co. v. Forma‑Pack, Inc., 351 Md. 396 (1998) (work‑product protects materials prepared "in anticipation of litigation" and requires identification of specific impending litigation)
- Kirwan v. The Diamondback, 352 Md. 74 (1998) (personnel records mean materials directly pertaining to employment and ability to perform job; exemptions construed narrowly)
- Prince George’s Cnty. v. The Washington Post Co., 149 Md. App. 289 (2003) (agency asserting personnel exemption must have supervisory authority over the individual and the records)
- Montgomery Cnty. v. Shropshire, 420 Md. 362 (2011) (discusses status of internal affairs records under MPIA and informed the circuit court’s reasoning)
- City of Balt. v. Burke, 67 Md. App. 147 (1986) (fee waiver denial arbitrary where agency considered only cost and requester’s ability to pay)
- Action Comm. for Transit, Inc. v. Town of Chevy Chase, 229 Md. App. 540 (2016) (custodian must consider ability to pay and other relevant public‑interest factors when deciding fee waivers)