*1 117A.3d DEPARTMENT MARYLAND OF STATE POLICE

Teleta DASHIELL. S. Term, Sept.

No. 2014. Appeals Maryland. Court

June *2 (Mira Feldstein, A. Levitan, Atty. Asst. Gen. Ronald M. Frosh, Maryland, Gen., Atty. E. Gen. Brian Atty. Asst. MD), brief, Petitioner/Cross-Respondent. Baltimore, on for (Venable DC; LLP, Washington, Debo- A. Rosenthal Seth Kumar, Maryland, Jeon, Foundation ACLU rah A. Sonia brief, Baltimore, MD), Respondent/Cross-Petitioner. on Mary Johnson, M. Gardner (Jeffrey M. Dickstein Shapiro LLP, DC), brief, Washington, on for Respondent/Cross-Peti- tioner.

Anna Jagelewski, Esquire, Francis D. Murnaghan, Appel- Fellow, Baltimore, late Advocacy MD, for Amici Curiae brief Maryland, Casa De Caucus of Leaders, African-American Howard University School of Rights Clinic, Law Civil Mary- land State Branches, Conference of NAACP Public Justice Center, and Somerset County Organizational Partnership.

Argued BARBERA, C.J., HARRELL, before: BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.

BATTAGLIA, J. Dashiell,1 Teleta S. Respondent, filed a complaint for declar- atory injunctive relief under the Maryland Public Infor- Act, mation (1984, *3 Code Repl.Vol.), 2010 Sections 10-611 et seq. of the State Government Article3 against the Maryland State Police Department. Ms. Dashiell’s complaint was based upon the State Police’s refusal to provide her with an internal investigation conducted by them in response to a complaint Ms. Dashiell filed against Sergeant John Maiello of the State Police that was “sustained”.4 Throughout 1. entirety judicial of the proceedings, the American (“ACLU”) Civil Maryland Liberties Union of acting has been on Ms. behalf, Dashiell’s Dashiell, behalf and on its own but we refer to Ms. individually, Respondent. as the Article, Sections 3-401 et seq. Proceedings Courts and Judicial 2. (1974, Maryland Code Repl.Vol., 2006 Supp.), 2010 Maryland Act, Declaratory Judgments Uniform govern declaratory claims for relief. 1, 2014, 3. Effective Maryland October Public Information Act was recodified 4 as Title of the General Maryland Provisions Article. 2014 Laws 407-817. Maryland All references to the Public Information Act here, however are to Sections 10-611 et of the State Government seq. Article, (1984, Maryland Repl.Vol.), Code provisions of which applicable were complaint at the time the was filed. According Maryland Manual, to the State Police Administrative a “sustained”, complaint is investigation when the "the disclosed suffi- for Balti- the Circuit Court Cavanaugh of Patrick J. Judge summary motion for the State Police’s County granted more that the records Police with State agreed judgment rec- disclosure as mandatorily from were determined Special Appeals After the Court ords.” Police State by requiring Court erred the Circuit not conduct- documents and of the withheld create an index documents, a filed an in camera review of the ing following question: to consider the asking us writ of certiorari invoke the properly Police of State Department Did the (MPIA) exemptions Act’s Public Information under that are confidential records and records personnel Bill of the Law Enforcement Officers’ other law—here for the internal affairs records deny request Rights—to identified specifically the conduct of a investigation into state trooper? and asked: cross-petitioned

Ms. Dashiell [Wjhether ... considered the may victim be complaining “person such that she is subject investigation of an under the MPIA? interest” (2014) (internal quotation marks 105 A.3d 489 Md.

omitted). allegation”. Md. State Police cient information to substantiate 20, 2004). Manual, 5, V(H)(10) (rev. Aug. § An officer ch.

Admin. disciplinary "may subject against action, sustained be whom a Investiga- may appeal to the Internal demotion or dismissal Montgomery Cnty. Maryland Shropshire, 420 v. tive Review Panel.” (2011). Md. *4 616(1) provides, perti- Article in of the State Government 5. Section 10— part: nent subsection, (2) (1) (1) Subject paragraph of this Personnel records.— personnel an individ- deny inspection of a record of a custodian shall ual, rating, including application, performance or scholastic achievement information. (2) by: permit inspection shall A custodian interest; (i) person in (ii) supervises the work of the appointed official who an elected or individual. shall hold that We the internal affairs an investi- gation into the conduct of a specifically identified state trooper 616(i) a “personnel record” under Section of the Mary- 10— Act, and, case, land Public Information in this not capable sufficiently of redaction such as to render it “sanitized” for disclosure, possible necessary. were disclosure See Dep’t State Police v. Maryland State NAACP Conference of Branches, 179, (2013). 430 Md. 59 A.3d 1037 had, 2010,

Teleta in Dashiell a complaint filed for declarato- ry injunctive relief in the Circuit Court for Baltimore in County which she alleged Sergeant John Maiello of the Police, during a search fugitive, for a had left a voicemail her, for which included a racially perverse reference:

13. On or about November Ms. Dashiell was questioned by MSP during officers the MSP’s search for an alleged fugitive. this During initial questioning, Ms. Dash- iell informed the MSP that she did not know the location of the alleged fugitive and had no other information that would assist the inMSP its search.

14. On or about November during the course search, the MSP MSP Sergeant John Maiello called Ms. Dashiell and left the following message asking her to call him “Hey, back: Sergeant it’s Maiello with the State Police. Then, Call me back.” erroneously believing he had ended call, Sergeant Maiello stated: Why, it, that’s Iwhat think about and I need to hear some shit like ... That’s when I say to myself, ‘Oh * * * ... my God I’m listening to some God dang n[* *J’s voice mail play 20 minutes.’ * * In addition to the use of the word n [ ***] above statement, Sergeant Maiello was using recorded the slur a second time on Ms. Dashiell’s voicemail. A second MSP officer can be heard laughing the background.

Ms. Dashiell further alleged that she complained to the State Police, investigated which Maiello, and disciplined Sergeant particulars of which were file, included his personnel but the details of which were not disclosed to Ms. Dashiell: *5 5, 2009, contact- Ms. Dashiell

15. On or about November Plunkert, him to believing be Lieutenant Krah ed MSP Barrack, made com- of the Princess Anne Commander Maiello. At the time Ms. Sergeant MSP plaint regarding to MSP complaint gave she statement Dashiell made her to have been recorded. which she believes personnel, allegedly assigned was complaint 16. Ms. Dashiell’s of the MSP Internal Kristi Meakin Sergeant Detective inves- Sergeant allegedly Detective Meakin Affairs Section. regarding Sergeant MSP tigated complaint Ms. Dashiell’s had con- informed Ms. Dashiell she Maiello and later made derogatory racial comments allegations firmed the Maiello. by Sergeant belief, its information and the MSP closed Upon

17. on or complaint into Ms. Dashiell’s alleged investigation 2010. February second week of about the February to Ms. Dashiell dated By letter Nelson, stated that Kristina the MSP Captain from MSP regarding file” Ms. Dashiell’s “investigative there exists an that, among indicated other This letter also complaint. confirmed Ms. Dash- alleged investigation things, MSP’s Sergeant Maiello stated allegations concerning iell’s findings appropriate disciplin- of these a result “[a]s and docu- against Sergeant action taken Maiello ary was in his file.” personnel mented not inform Ms. Dashiell of the details 19. The MSP did or of the content of MSP’s alleged investigation, files, into her any investigation the results of including extent) (and Maiello Sergeant or whether to what reprimanded actually disciplined. was thereafter, Dashiell, according complaint, to her sent Ms. various inspect copy to the Police to request formal Maiel- investigation Sergeant the internal records related to lo: following completion MSP’s

20. On March complaint, of Ms. Dashiell’s ACLU alleged investigation of Ms. on its own behalf and on behalf Maryland, acting Dashiell, sent a formal request MPIA to MSP Lieutenant Colonel Michael Fischer —believed to be the MSP custodian seeking records from the MSP’s closed investi- records — *6 gation into Ms. complaint against Dashiell’s Sergeant Maiel- lo.

21. Ms. Specifically, Dashiell and the requested ACLU inspect to and copy records to: pertaining

The internal investigation conducted by State Police pursuant to the complaint lodged against Sergeant John Maiello Teleta Dashiell on November 2009, and closed the second week of February, to relating the offensive voicemail message left on Ms. 3, 2009, Dashiell’s cell on phone November including, but not limited to: documents, Any

a. including video audio record- and/or ings, obtained during the investigation; document, Any b. including video audio record- and/or ings created during investigation; c. reports; Incident statements;

d. Witness documents;

e. Charging card;

f. Complaint control g. Results internal investigation; and h. findings Results of the review of of the internal investigation.

22. Ms. Dashiell sought records concerning the MSP’s handling filed; that she where such records are records, classified as investigatory the MPIA makes them for inspection by available a “person of interest.” The MPIA “person defines a in interest” as “a person govern- or mental unit subject is the public of a record or a unit____” designee person governmental (emphasis in original). Ms. Dashiell’s complaint further al- leged initially request her was stamped returned “ad- unknown”, dressee because the identified custodian of had retired: 2, 2010 MPIA request returned the March

23. MSP unknown.” stamped Apparently, to the ACLU “addressee to Ms. Dashiell and the ACLU at the time unbeknownst sent, had MPIA was Lieutenant Colonel Fischer request retired the MSP. MPIA request, failing

24. The MSP returned the custodian, it identify even the new rather than deliver current custodian of records. Dashiell, thereafter, sent a according complaint,

Ms. her records, “in to review the same which was denied request new entirety”: its on own Subsequently, Maryland, the ACLU its Dashiell, again

behalf and on behalf of Ms. submitted the 11, 2010, request by MPIA letter dated March this time Counsel, M. copy Principal with a to MSP Ronald Levitan. ac- *7 By 26. letter dated March Mr. Levitan knowledged receipt request by the MPIA the MSP Records, himself, Custodian of as well as on March 2010. promised response request days. He a to the within 30 April responded writing, 27. On MSP declin- Ms. Dashiell’s ing request entirety. MPIA its that, The further stated after the State Police minimum, a request, sought, denied the Ms. Dashiell then “detailed index of the records withheld”: being By

28. letter dated June Dickstein Shapiro— then become counsel for Ms. Dashiell having along with ACLU—sent the MSP a letter challenging MSP’s denial request, very of Ms. Dashiell’s MPIA and at the seeking, least, withheld, being a detailed index of the records includ- document, a ing summary each and statement concern- ing particular exemption the MSP claims for each document. refused, refuse, pro-

29. The MSP and continues to any stemming duce from Ms. Dashiell’s complaint, detailing handling complaint, or its of that or an index of the withholding. documents it is Police complaint, moved to dismiss the or in the

alternative, for summary judgment, arguing that it had “prop erly inspection denied of the records as it was required do under the Law Enforcement Officers Bill of Rights, Md.Code Ann., (“LEOBR”)[6], Safety §§ Public 3-101-3-113 and the mandatory [M]PIA, personnel exemption of the Md. [record] [7]”. Ann., 616(i) § Code State Government Discretionary 10— authorized, denial of disclosure was also the State Police alleged, “under the permissive denial provisions [M]PIA’s for 618(b) § id. memoranda, intra-agency [8], investigatory and 10— Article, Safety 6. Section 3-104 "Investigation of the Public entitled or interrogation provides, pertinent of law enforcement officer" part: (a) general. In investigation interrogation by a law enforce- —The agency ment a law may enforcement officer reason that lead action, demotion, disciplinary or dismissal shall be conducted in accordance with this section. (n) provided completion investigation. (1) on On com- Information — pletion investigation of an days hearing, and at least 10 before a law investigation enforcement officer under shall be: (i) notified of the name of each charge witness and of each and officer; specification against the law enforcement and (ii) provided copy with a investigatory any exculpatory file and information, if the law enforcement officer and the law enforcement representative agree officer’s to: 1. confidentiality agreement execute a with the law enforcement agency not any to disclose investigatory material contained in the file exculpatory any purpose information for other than to defend the officer; law enforcement pay 2. charge reproducing reasonable for the cost of the material. Article, governing Section 10-616 of the State "required Government denials," provides, part: in relevant (a) law, general. provided by otherwise a custodian shall —Unless *8 record, deny inspection public provided of a as in this section. (1) (1) (2) subsection, Subject paragraph Personnel to of this records.— deny inspection a custodian personnel shall aof record of an individ- ual, including application, performance rating, an or scholastic achievement information. (2) permit inspection A by: custodian shall (i) interest; person or (ii) appointed an elected supervises or official who the work of the individual. 618(b) 8. provides: Section of the State Government Article 10— 618(f)[9].” Dashiell, id. records, conversely, argued § Ms. 10— not requested information she was further, Act, Police disclosure under the State its failure to justify had failed to meet its burden to disclose the records.

A who hearing Judge Cavanaugh, granted was held before summary judgment: motion for the State Police’s filed against This is a case where Ms. Dashiell suit Infor- alleging Maryland State Police violation Public Act. 2010. mation Suit was filed on October Prior to suit, filing they inquired Maryland State Police as to they regarding what actions had taken this incident. The Maryland required respond State Police were to on Febru- ary Police a Captain sent [Kristina Nelson]

letter to Dashiell stating quoting response Ms. —I’m —in (b) Interagency intra-agency may deny documents.—A custodian any inspection part interagency intra-agency an or letter or by private party memorandum that would not be available law to a

litigation with the unit. 618(f) provides: 9. Section of the State Government Article 10— (f) subsection, (2) Subject Investigations. (1) paragraph of this a — may deny inspection custodian (1) of: General, investigations Attorney records of conducted a Attorney, city county attorney, police department, State’s a or a or a sheriff; (ii) enforcement, investigatory compiled any an file other law judicial, prosecution purpose; correctional or or (iii) intelligence security proce- records that contain information or General, Attorney Attorney, city county dures of the a a or State’s attorney, police department, facility, a a State or local correctional or a sheriff. (2) may deny inspection by person only A custodian in interest inspection the extent that the would: (i) proper proceeding; interfere with a valid and law enforcement (ii) deprive person right impartial another fair trial or an adjudication; (iii) personal privacy; constitute an unwarranted invasion of source; (iv) identity disclose the of a confidential (v) investigative technique procedure; disclose an or (vi) prejudice (vii) endanger investigation; physical safety the life or of an individual. *9 to her inquiry there was an investigative file created regard- ing Ms. complaint. Second, Dashiell’s Maryland State Police confirmed Ms. third, Dashiell’s allegations, and that appropriate disciplinary action was against taken Ser- Maiello, geant and documented in personnel his file as stated the letter of February 2010. thereafter,

Shortly March Dashiell, Ms. through counsel, her requested, gathered one—facts during the in- itself, vestigation and an Internal Investigation. Affairs statements, Two—witnesses’ incident reports, documents obtained or created during the investigation, again, Internal Affairs Investigation, the results of the Internal Affairs Investigation, and five—the results of the review findings of the Internal Investigation. That’s what counsel is asking for. Basically, that’s what the suit is asking for. All five of these items are contained in the man’s personnel file.

The law very is clear. personnel record is confidentia l.[10 ]The only exceptions that I see the case law cases, involve criminal State, such as Robinson v. 354 Md. (1999) 287 [730 A.2d 181 State, Baltimore City ] Police v. 158 Md.App. 273. These Internal Affairs Investigation clearly are personnel 10-616, records under Section the State Government section of the annotated code.

It clearly states they shall deny you agot crimi- —unless nal case involving constitutional usually issues related to the Sixth or Fourteenth Amendment. There’s no question in my mind upon based Ms. Dashiell’s attorney’s requests they are looking for a result of an internal investigation by the Police, and everything they are looking for According complaint, to Ms. February Dashiell’s in a 2010 letter Police, she received from the State the State Police: stated "investigative that there exists an regarding file” Ms. Dashiell's that, complaint. This letter also among things, indicated other alleged investigation

MSP’s confirmed allegations Ms. Dashiell's con- cerning Sergeant Maiello and stated that “[a]s a result of these findings appropriate disciplinary against action was taken Ser- geant Maiello and personnel documented in his file.” are protect- are confidential records which personnel summary judg- Therefore, the motion granting I’m

ed. ment. *10 entered, order, thereafter, which stated: was

An Motion to Dismiss of the Defendant’s consideration Upon and Alternative, Summary Judgment, Motion for or in the held, thereto, good been for hearing having any response 2011; June, shown, day it is this 24th been having cause Summary ORDERED, Defendant’s Motion that the prejudice. with Judgment is Granted Ap Special The Court of appeal. Dashiell noted an Ms. and remanded ruling vacated the reported opinion, in a peals, Maryland Dashiell v. proceedings.11 case for further 647, 672-73, 577 Md.App. 219 Dep’t, State Police (2014). court, on this Court’s deci relying intermediate Our Branches, A.3d at Md. at 59 in NAACP 430 sion the trial court requires that “NAACP Branches concluded investiga in the requested each document determine whether any provision under is from disclosure tory exempt record Police], if exempt, and by the [State the MPIA advanced subject to disclosure as severa any such document is whether 10-614(b)(3)(iii)[12].”Dashiell, at Md.App. § under ble SG presented three Special Appeals, Ms. Dashiell 11. Before the Court of rephrased by follows: questions, were the court as which summary judgment granting in favor Did the trial court err in 1. sought by appellant under finding that the documents the MSP after disclosure? Maryland Act were Public Information ordering produce those by the MSP to 2. Did the trial court err not "reasonably severable”? portions withheld documents that are allowing MSP to withhold documents Did the trial court err 3. conducting first Maryland Information Act without under the Public of, of, discovery independent permitting or the documents? an review Md.App. A.3d Dep’t, State Police Dashiell v. (2014). 564-65 614(b)(3) provides in Government Article of the State 12. Section 10— pertinent part: application shall: who denies A custodian subject (iii) any part permit inspection of of the record reasonably inspection and is severable. 666, 101 A.3d at of Special Appeals, relying Court Branches, on also lan- emphasized plain NAACP that “[t]he 10-616(a) 614(b)(3)(iii) §§ guage of authorizes redac- 10— can applicant portions tions so that receive of an exempt record which are severable and the of which not receipt does 669,101 violate the substance of the id. at exemption”, A.3d removed), (emphasis concluded that the Circuit Court failing erred in to require the State Police to create an index and, addition, of the withheld documents conducting in camera review of the documents: case,

Given the state of the record before us in the instant we conclude that cannot we conduct a review of the legality propriety the MSP’s refusal to the requested disclose documents the investigative file as a created result appellant’s complaint. Without the identification each document, it, withheld along with detailed information about *11 appellant was not to cogent able develop arguments regard- ing whether a particular document is or severable. Without such information, identification and detailed or an documents, camera review of the withheld the trial court did not have a sufficient factual basis to determine the applicability of documents, an to such exemption if exempt, the severability of any portion thereof. Finally, the lack of identification and information about the withheld precluded documents the trial court from as determining, Branches, occurred NAACP any whether redactions agreed by appellant to particular would remove a document from an exemption or would make such document severable from other exempt documents.

Id. at 577. A.3d at Our appellate intermediate court also addressed Ms. Dashiell’s that argument she constituted a “person in interest” under Act, the Public Information because, determined she not was she although was “the complainant who triggered investigation by the the [State Police], the subject [she was] of the investigation itself. Sergeant subject Maiello was the the investigation, and thus a ‘person 662,101 in interest’ ”. Id. at A.3d at the by the issue raised certiorari to address granted

We of the it denied disclosure properly as to whether State Police under the investigation records internal Act. also Ms. granted Information We Public exemption Dashiell, in role consider if Ms. her cross-petition to Dashiell’s individual, subject of could be considered the as a complaining under such she is of interest” “person investigation, (2014). 61,105 441 Md. A.3d 489 Act. case, requested specific had Ms. Dashiell present Police, relating such records “[t]he State Police by Maryland investigation internal conducted John lodged against Sergeant pursuant 5, 2009, and closed Teleta on November Maiello Dashiell February, relating the offensive the second week phone cell on Novem- message voicemail left on Ms. Dashiell’s ber 2009” to include: documents, recordings, audio including

a. video Any and/or during investigation; obtained document, recordings, audio Any including b. video and/or during investigation; created reports; c. Incident statements;

d. Witness documents;

e. Charging card;

f. Complaint control investigation; and g. Results of internal internal investi- findings h. of the review of Results gation. rec- determined that the Judge requested Circuit Court *12 Maiello, Sergeant of

ords constituted the Public Information mandatorily exempt which were under to the Special Appeals disagreed Act. of extent The Court court that the Circuit appellate the concluded intermediate in the Police to create faffing require Court erred and, addition, by in documents index of the withheld documents, of a view an in review the with conducting camera so as to render the documents could be redacted whether them under NAACP Branches. disclosable

449 case, addressing Before the of merits this we must matter, procedural judgment first address a because a declar the of in ing rights parties the was not entered the present case. This an appeal case comes us as from a declaratory action, in judgment which trial court the must have entered “a declaratory judgment, the defining rights obligations the or the parties thing controversy, status in and that be in and in judgment writing separate must a document.” 362, Montgomery Cnty. Maryland 420 Shropshire, v. Md. 371 7, 205, (2011), n. A.3d 210 n. 7 quoting 23 Land v. State Lovell Admin., (2009). 242, 256, 284, Highway Md. 408 969 A.2d 292 declaratory judgment action is for or “[WJhether decided against there in plaintiff, should be declaration judgment defining parties decree rights under 288, 282, the issues v. Comptroller, made.” Case 219 149 Md. 6, (1959); A.2d 9 Cnty. accord Baltimore v. Baltimore Cnty. 4, 547, 566, Fraternal Order Police No. 439 Md. Lodge 96 742, (2014), 587, A.3d City Annapolis, 753 Bowen v. 402 Md. (2007). 608, 242, 937 A.2d 254 Allstate Ins. Co. v. State Co., 106,117 831, Farm Mut. Auto. Ins. Md. 363 n. 767 A.2d (2001): 1 837 n. we again, presented declaratory judgment

Once are with a action declaratory which there is no written judgment. that, We have admonished trial courts when a declaratory judgment brought controversy action is and the is appropri- for by declaratory judgment, ate resolution the court must enter declaratory judgment and that judgment, defining rights and obligations parties or the status of the thing controversy, must in writing. permissi- be It is not for ble the court to issue an oral declaration. The text of judgment must be writing. See Mutual Ins. Harford 399, 414-15, v. Woodfin, Co. 344 Md. 659 (1997); Brown, 70, 87, Ashton v. Md. A.2d (1995); Resources, Department v. Christ Natural (1994). Nor, Md. 644 A.2d since the 1997 2-601(a), amendment to Rule it permissible declaratory judgment part to be of a memorandum. requires That rule judgment shall be set forth “[e]ach *13 450 declaratory entering When

on a document.” separate document, must, state in separate in a the court judgment, rights parties, along the of writing its declaration of to be the part order that is intended any -with other it may recite that is judgment the judgment. Although memo- accompanying an on the reasons set forth based itself must randum, declaratory judgment of the terms the an Incorporating by reference separately. forth be set sufficient, not no one would be able is as ruling earlier oral rights of from the docu- the actual declaration discern judgment. just a matter of posing as the This is ment The hyper-technical requirement with a rule. complying writing the that the court enter its declaration fair notice of parties public the the purpose giving the court has determined. what though, in our the merits may, We discretion “review an entry appropriate controversy and remand for court”, Cnty. circuit Baltimore declaratory judgment 566-67, 4, Md. Police No. at Lodge Fraternal Order of Bowen, at 402 Md. at 937 A.2d quoting A.3d at we, herewith, that exercise. option regulated by officers are investigations police Internal Article, Safety Maryland Public seq. Section 3-101 et (2003), Bill Officers’ known as Law Enforcement Code 3-104(a) (“LEOBR”). Rights of the LEOBR dictates Section that, interrogation by a law enforce- investigation or “[t]he of a law officer for reason that agency ment enforcement action, demotion, or shall be may lead to dismissal disciplinary explained in accordance this section.”13 conducted with We 3-104(n) Safety argue Section of the Public The State Police 13. Article, "Investigation interrogation entitled of law enforcement confidentiality This sec- confers over internal affairs records. officer” situation, agree inapposite and we with the Court of tion is to this govern Special Appeals "does not whether documents LEOBR subject parties investigation third an internal are to disclosure to Dashiell, Md.App. at under the MPIA.” Act, hereafter, Any be our Maryland Public Information will talisman. Informa- Act hereafter will be Public references investigation the internal process14 Shropshire, Md. at 374-75, 23 A.3d at 212-13: *14 investigation

An internal aby “complaint” is initiated or “allegation against of misconduct made an of employee the department.” The Director of the Internal Affairs Division reviews the and complaint determines whether it merits Act, Article, seq. tion Maryland Sections 10-611 et of the State Government (1984, Repl.Vol.). Code 14. The State Police Administrative Manual sets forth the investigation protocol complaints. of Complaints the administrative 176," police employee are documented a on a "Form which is "Complaint Against entitled Personnel.” Md. State Police Admin. Manual, 5, V(D)(3)(b) (rev. 2004). § Aug. ch. The Internal Affairs opens complaint assigns Section a new tracking case file for the and a 111(E)(1),(F)(1), V(E)(4). §§ number to that file. Id. Either an Internal Affairs employee Section Commander or the the commander of investi- gates complaint, complete investigator which is when has witnesses, complainant interviewed questioned employee, and leads, physical examined all evidence and and the case has been accurately V(E)(4), V(H)(1). reported. §§ completed Id. investiga- A following: tion file case will contain the Investigative Report completed investigation The Format case organized file bewill as follows: Complaint Against Report, a. Personnel Form 176 ... Report Investigation b. (1) report Chapter Follow the detailed format in 3 to ensure the uniformity investigation reports. of internal Appendices. c. (1) complainant, Statement of if different from that of the victim. (2) victim, complainant. Statement if different from that of (3) Statement witnesses. (4) Complaint, applicable. Notification of Form if (5) employee(s) interrogation report Detailed from accused and/or transcript. (6) 178A, Interrogation, Order to Submit to applicable. Form if (7) Explanation Rights applicable. of Miranda Form if (8) Other or reports. statements detailed (9) charts, e.g., photographs, diagrams, Additional etc. exhibits — V(H)(10) § (underlining original). Id. investigator will then recommend, evidence, upon preponderance finding based a "non-sustained”, either "sustained” or "unfounded” for each violation. V(H)(10)(c). §Id. investiga- “Non-sustained” defined as when "the tion fails disclose clearly prove allega- sufficient information to tion. Id. "Sustained” is investigation defined as when "the disclosed sufficient information to allegation.” substantiate the Id. The third category, investigation "unfounded” is when "the revealed that the reported investigation did not occur.” Id. does, assigns the Director then If it investigation.

further commanding investigator, typically complaint an documentary “all available officer, gathering tasked with Investigative Report,” an “Internal compiling evidence” any report a written allegations, which contains all investigation, and a list of by the uncovered information At an investi- the close of contacted or interviewed. those “sustained,” in which case may be gation, action, demotion subject disciplinary be may officer Investigative to the Internal may appeal dismissal may years, request After three officer Review Panel. if expunged him be against a complaint that the record of Department or the determined the officer was exonerated or unfounded.” charges that “the were unsustained omitted). (footnotes and internal citations *15 Act, the gravamen the of Public Information Maryland case, Maryland 698 of the by Chapter instant was enacted of 1970, codified as Sections 1-5A originally of and was Laws Laws Maryland.15 the of 1970 Md. 1970- Article 76A of Code in the Government Article Upon 75. the enactment of State without Information Act was “transferred the Public the Govern seq. to Sections 10-611 et of State amendment” v. Article,16 Attorney in Gen. Galla- ment such that of Office Article, 10-618(f) addressing "in the Government 15. Section of State case, records”, this came into existence vestigatory which is at issue in through Chapter the of 1978. Md. Laws 2887-92. 1006 of Acts 3(b)(i) Maryland 76A the Code of to of former Art. of Prior that Section by police department, investigations a applied to records of conducted concerning inspection by special provisions a did include but it interest, although person person in interest was defined in the in a 1(h). Chapter time Section 1970 Md. Laws 1972. statute the in 76A, 3(b)(i), precursor § the to the Acts of 1978 added to Art. 1006 of 10-618(9(2), right person a in the "but the of interest Section statement may only inspect to the extent that to the records be denied consequences production generate of cur them would" one seven (i) (vii) 10-618(9(2). through §of rently subparagraphs enumerated in 1978 Md. Laws 2891-92. 4 of General as Title Provisions It has since been recodified to the Md. 407-817. All references Article. 2014 Laws seq. et to Sections 10-611 Act here are Public Information (2000), gher, 359 Md. A.2d we de- the transition: scribed is no in legislative

There indication history separate sections of Title subtitle of the State Govern- Article interpreted ment were be differently from the 76A, § separate subsections former Article 3. As pointed above, out the transfer was described in the Title Ch. 284 Moreover, being as “without amendment.” the revisor’s 10-615, 10-617, §§ *16 ticular, forth procedures sets that a custodian must follow to deny application an provides for disclosure and “a that custodian who the application denies shall ... permit inspec- any tion of part subject record that to is inspection is reasonably severable.”

Four Sections the Act address which circumstances deny custodian of records “shall inspection”, “may deny or Article, (1984, Repl.Vol.), Government Code provi- applicable sions of which were at the time the was filed. 10-616, here, At Section public records. issue inspection”, records”, “a cus- provides Specific “Required entitled denials— records, that including deny specific inspection” todian shall records”: “personnel law, a custo- (a) provided otherwise general. In —Unless record, as public provided of a deny inspection dian shall this section. (2) (1)

(1) this Subject paragraph Personnel records. — subsection, personnel of a deny inspection a custodian shall individual, application, perform- an including an record of information. rating, or scholastic achievement ance (2) by: permit inspection shall A custodian (i) interest; or person (ii) supervises work official who appointed an elected or of the individual. “the applicable, that when 10-616 opined have Section

We record.” Gallagher, must that deny inspection custodian 353, A.2d at at 359 Md. records”, lists “personnel not define but

The statute does records, i.e. an may personal that constitute types of records rating, or scholastic achievement “application, performance 616(1). Ann., In § State Gov’t information.” Md.Code 10— Diamondback, 352 Md. Kirwan v. this (1998), Legislature did not intend we noted legislative but that it “reflect[ed]

list “to be exhaustive” those documents that ‘personnel intent records’ mean ability employee’s directly pertain employment a “personnel concluded that record” job.” We perform dis- “hiring, discipline, promotion, employee’s to an relates missal, employee.” status as an any involving matter his at 721 A.2d at 200. Id. after Md. 23 A.3d at decided Shropshire, here, squarely we judgment

the Circuit Court entered its would investigatory affairs whether internal addressed Information under the Public constitute *17 case, Montgomery Act. the Office of the County Inspec- tor sought police department General obtain records of internal into investigation transgressions allegedly affairs by Sergeant Shropshire Captain committed Edward and Willie Parker-Loan. The Internal Affairs Division of the County Department Police had determined Sergeant Shropshire that and Parker-Loan “had Captain committed no administrative 366, violations.” Id. at 23 A.3d at 207. After the Inspector records, General had sought Shropshire and Sergeant disclosure, Captain Parker-Loan arguing resisted that exempt records were from under disclosure exemption the Public Information Act. We determined that the internal investigatory affairs rec- ords involving Sergeant Captain Shropshire Parker-Loan were, therefore, were related to employee discipline and “per- disclosure, sonnel records” pursuant to Section 616(i). Id. at at recognized A.3d 218. We 10— “records internal investigations significant personal contain information, name, such investigated as the officer’s date of birth, address, number, education, social security level of as well complaint, transcripts interviews, as the of witness notes, disclosed, the investigator’s if could be potentially officers, only detrimental to not but also the witnesses”. Id. at A.3d 217. We also recognized there a “significant public maintaining interest confidentiality,” when the officer is cleared of Id. at wrongdoing.

at 216. distinguished

We Shropshire from the Court of Special Appeals’s decision in Maryland Dep’t State v. Police Mary Branches, land 190 Md.App. Conference of NAACP (2010), 988 A.2d 1075 for which we granted had certiorari and argument, had heard had although yet case been filed: present is distinguishable, case because the internal affairs records specifically reference the acts taken by Ser- geant Shropshire and Captain Parker-Loan during the in- vestigation of a discrete motor vehicle accident and allegations them, unsustained against rather than statistics compiled regarding of group acts of officers without Records of personal information. of their

identification *18 as a by police department profiling racial alleged systemic investigating from differentiated records clearly whole are police identified by rule violations alleged administrative with a incident. specific in connection officers 382-83, at 217. held that at We 420 Md. Shropshire, admin- sum, involving alleged the internal affairs records “[i]n Shropshire Captain and by Sergeant istrative rule violations pursuant records’ to Section 10- ‘personnel are Parker-Loan 616(i) Article, are, therefore, of Government and the State of rec- from the custodian disclosure mandatorily 383, A.3d at 218. ords.” Id. at 23 Branches, in opinion we issued an NAACP

Subsequently, 1043, which, affirmed 190, A.3d at we the 430 Md. at omitting personal records releasing Circuit Court’s Order complaints investigations Police internal of 94 details State and 2007. use of racial between 2003 concerning profiling Police, and prior In a case between the NAACP State agreement, into “obligat[ing] had entered a consent parties reports with provide quarterly the State Police to the NAACP nature, number, loca- containing detailed information on complaints alleging profiling” tion and racial disposition incorporated which into an order the United States was 1,n. Maryland. District of Id. at 182 District Court for the at n. 1. A.3d thereafter, NAACP, inspection of requested

The documents any created connection with racial “obtained or if the had verify in order to State Police been profiling”, under the order. Id. at complying obligations with its court Police to disclose the 59 A.3d at 1039. refused records, claiming “personnel the records constituted 616(i)of the Public Information Act. pursuant to Section 10— relief brought declaratory then an action The NAACP hearing argu- County. for Baltimore After the Circuit Court ments, Police ordered the State Judge the Circuit Court review, after which for his in camera he submit the documents that if information was redacted identifying determined records, release of the records would not constitute an privacy. Although invasion of the records “per- constituted Act, according Judge, sonnel records” under the to the if identifying could be disclosed information was re- dacted. the Circuit affirming Special Court the Court

Appeals, rejected we the State Police’s argument redacted records still would constitute records” of “[ajfter individual, opining the names of troop- State Police ers, the all complainants, names of identifying information redacted, are records clearly do not fall within the statuto- ry language of ‘record[s] an individual.’ be There would no ‘individual’ identified the redacted records.” Id. *19 (internal omitted).

A.3d at 1046 citation sifting cases, After through the statute and our the State Police as it argues, did before the Court of Special Appeals, that the internal affairs records investigatory of Sergeant records”, subject Maiello constitute “personnel to disclosure, mandatory the of pursuant denial to Section 10- 616(i), because the records are “hiring, related the disci dismissal, pline, promotion, any involving matter an em status”, ployee’s 378, relying on 420 at Shropshire, Md. 23 Kirwan, A.3d at citing at 352 Md. 721 A.2d at 200. argues Ms. Dashiell requested the records do not 616(i) “personnel constitute records” under Section 10— Act.17 Ms. argues Dashiell that even were requested the argues, specifically, statutory Ms. Dashiell under the construc- concept ejusdem generis, tion which is "[a] canon of construction holding general phrase specifics, that when word or follows a list general phrase interpreted only word or will be to include items of listed”, (10th the same class those Law Dictionary as Black’s ed.2014), requested records fall in do not the "same class” as the 616(i) three records listed in Section of the State Government 10— Article, "application, performance rating, an or scholastic achievement information”, examples because those items are that contain records information, private personal while records of in this issue case expectation privacy. respect are not entitled to a reasonable With non-exhaustive, interpretation our of this list in as we Kirwan do not Diamondback, argument compelling. find this See v. The Kirwan records”, then disclosure “personnel to constitute

records Sergeant in an unwarranted invasion not result would 612(b), § because under Section personal privacy Maiello’s 10— matter of already public is identity Maiello’s Sergeant her com- contends that because Dashiell also record. Ms. sustained, Shropshire was Sergeant Maiello plaint against miscon- proven the instant records “reveal because inapposite that the argues next trooper.” a state Ms. Dashiell by duct trooper to the actions of a state pertain requested animus, would favor public policy in racial and thus engaging affairs and the rec- process of the internal transparency therefrom. generated ords with essence, presents initially situation us present occur under the of whether the disclosure should

the issue a specifi- Act of internal affairs records of Information Public against the officer identified officer where cally complain- the officer was identified was sustained and forum. public ant in a jurisprudence that under our rec-

It is clear discipline employee. Act See pertains ord” under the (“[BJecause 420 Md. at 23 A.3d at Shropshire, involving specifically identified [two internal affairs records are indeed discipline, related to the records employee officers] pursuant from disclosure to Sec- records’ ‘personnel Kirwan, 616(i) Article.”); tion of the State Government 10— constitute (“personnel may 721 A.2d at 200 Md. *20 dismissal, involving “hiring, discipline, promotion, the any involving employee.”). matter his status as specific in this case are to The internal affairs records Maiello, “personnel and thus are records” under Sergeant holding of progeny. and Kirwan and its Shropshire records, Branches, is because the instant inapposite, NAACP (which would possible highly unlikely), were redaction even 196, 74, 82-83, (1998) ("Although this list was 200 Md. exhaustive, legislative probably to be it does reflect a not intended directly "personnel documents that that records” mean those intent perform job.”). employee’s ability a pertain employment and an

459 a specific related to identified be individual. See NAACP (“After Branches, Md. at 59 A.3d at 1046 the names of State and all troopers, complainants, Police names of redacted, information identifying clearly are the records do statutory not fall of language within the of an ‘record[s] ”); individual.’ see Ledger Sagi- also Newark Co. v. Morning Sheriff, naw Cnty. Mich.App. 514 N.W.2d (9th Cir.1992) (1994), FBI, Hunt v. citing F.2d (“Had plaintiff requested the internal pertain- affairs records individual, ing to particular pur- redaction would no serve pose.”).

Because the records Dashiell requested by Ms. relate to Maiello, discipline Sergeant they are 10-616(i) and disclosure under of the Section State Government Article. nevertheless,

Ms. argues, Dashiell Act protects only against the unwarranted invasion of privacy Sergeant Maiello, Sergeant already Maiello has been identified as the actor in the incident under investigation. The fact that Sergeant Ms. Dashiell identified public Maiello forum does not importance undermine the public preserving employee’s privacy personal information the records requested, namely, documents during obtained or created investigation, incident statements, reports, witness charging documents, card, control results investigation internal and the results of the of findings review investigation. internal Ms. Dashiell also argues against the sustained finding Sergeant Maiello the applicability undercuts of the “personnel Knowing records” exemption. investigation that the resulted however, in a finding, sustained change does not the nature of sought the records with respect discipline imposed process arriving at such discipline. The Court of Appeals York New arrived at the same conclusion when it addressed the issue of disclosure of police officers’s names incident, who were involved in an off-duty egg throwing when the charges were Daily City sustained. Gazette Co. v. *21 472, 710 N.E.2d N.Y.S.2d 93 N.Y.2d

Schenectady, (1999). 1072, 1078 Act, also, does Information of the Public plain language

The com- and “unsustained” “sustained” between not differentiate finding requires a sustained A determination plaints. all information, affect though, would personnel disclosure Further, manda- force. only police not public employees, to sustained information related personnel tory disclosure those rendering disciplinary process, could chill findings finding a of misconduct. to sustain willing control less the use whether regarding troubling argument is Most the “personnel application obviates the epithet of a racial Although Ser- records. requested to the exemption records” to our sensibil- message repugnant Maiello’svoicemail geant employee’s of the the substance ities, we do not consider records” ex- “personnel determining whether actions Branches, noteworthy that NAACP It is emption applies. decision, it although animus in our not consider racial we did of the case. Because of the context foundationally part was among the bases not differentiate the Act itself does emanating and the records investigations affairs internal therefrom, not. we will conduct Court should to whether Circuit respect

With as ordered the Court of the records an in camera review consti- disagree. requested Appeals, we Special 10-616(i) of the to Section pursuant records” tute alter Article, cannot and in camera review State Government circum- under the decision, redaction be effective may nor stances. records are requested that the having decided

After disclosure, thus, we and, “personnel records” that, complainant, claim as not address Ms. Dashiell’s need “investigatory under the in interest” “person she is Act.18 do Public Information We exemption under argue “person in interest” that she is 18. Ms. Dashiell does fact, she acknowl- exemption the MPIA. In "personnel records” *22 so, however, prevent confusion when the case is remanded entry to the Circuit Court for of a declaratory judgment regarding the records” exemption. Article,

Section 10-618 of the State Government entitled that deny “Permissible denials” dictates “a custodian may records, inspection” case, certain significantly most in this investigations records of conducted by police department, a only person but to “a in interest ... the extent that the inspection would” either “interfere with a valid and law proper enforcement proceeding”, “deprive person right another of a to a fair or an impartial adjudication”, trial an “constitute unwarranted invasion of personal privacy”, “disclose iden- the source”, tity of a confidential “disclose an tech- investigative nique or procedure”, “prejudice investigation”, or “endan- ger physical safety the life or of an individual”. Md.Code 618(f). Ann., § A in “person Gov’t is interest” 10— 611(e)(1) in defined Section of the State Government Arti- 10— cle as “a or person governmental unit is the subject that a public record designee person the or governmental unit”.

Ms. Dashiell contends that under rec- “investigatory the ords” she as a “a exemption, complainant person in inter- text, est.” Ms. argues Dashiell that the legislative history purpose phrase “a in person interest” establish that the phrase, under the “investigatory records” is not exemption, limited target to the investigation.19 The State Police disagree. brief,

edges, person-in-interest exemption in personnel her "The in the exemption explicitly personnel records states access to granted otherwise person disclosure ‘shall’ be to ‘the interest,’ i.e., single employee subject who is the of those records." "a”, argues 19. Ms. Dashiell the use of the indefinite article as 618(f), opposed to "the” in Section demonstrates the General As- 10— sembly’s "person to not merely intent restrict in interest" to target investigation. of the The Public Information Act also includes records, phrase person § "the in interest" for retirement 10- records, records, 616(g)(2)(i), 616(k)(2)(i), § driving student 10— Nonetheless, § 616(p)(3)(ii). places the statute in some to the refers 10— Ms. agree did with Special Appeals The Court of interest”, as “a person of herself Dashiell’s characterization Appeals, specifically, of Special as we not. Court also do trig- who complainant here is the Dashiell] determined “[Ms. Police], and not the by the gered investigation [State was the subject investigation Sergeant itself. Maiello of the ” in interest.’ subject investigation, ‘person and thus Dashiell, 662,101 at A.3d Md.App. v. Mayor Baltimore City

As we & Council explained Ban, 78,Md. 82- Against the Gun Committee (1993): A.2d seeking inspect police If the record of person *23 interest,” “a in then investigation person is not department 618(f)(1) (f)(1), § the Under the custodi- applies. rule of 10— (f)(1) conjunc- an must be in may deny inspection. But read §to 10-618-“if custodi- general tion with the condition [the] by an a of a record inspection part public believes that of be to the interest.” applicant contrary public the would Thus, a of of person seeking inspection if the the records interest, person is not a in police investigation department if and of the records the custodian believes disclosure interest, in the investigation public of the is not the police Act require does not disclosure. omitted).

(internal citations footnote Ban, In Md. at Committee the Gun Against 1046-47, 92-94, history 617 A.2d at the explored legislative we Act, and, “a particular of the in the addition of the phrase 618(f)(2) in in person in interest” Section 1978. The Gun 10— sought developed during investiga- Ban Committee records interest, depend- subject person "a” of the record as either "the” or of ing preceding § on of the the term. See 10- the structure sentence 616(g) by (inspection permitted is to be “the of retirement records interest”, person may but that auditors not information in disclose interest") added); (emphasis § identify person "a in 10-625 would (allowing person request the inaccurate "a of interest” to correction of incomplete public person record in or information in a that “the added) inspect.”) (emphasis We decline to interest authorized to is meaning derive the use "the” in Act. of "a” versus the City tion of police during various Baltimore officers’s conduct specific involving a incident subpoena the service duces tecum. was not the complainant. The Committee The custo- dian the Committee to the in relying, denied access records on the fact that the Committee “a in part, person was not 618(f)(1). interest” under Section 10— discussing the legislative history, Act’s we held that the

Committee was not a in interest” it “person because was not subject investigation. left open question We ... complainant may “whether such be a in ‘person interest’ 618(f)(2).” under Section Id. 617 A.2d at 1046. 10— Were be considered records” “investigatory records”,20 not solely for the purpose argu- ment, Ms. Dashiell person would be “a in interest” pursu- ant to the “investigatory exemption of the Act. Under plain language “person the statute a “a interest” is or unit person governmental that is the of a subject public record or designee person of the or governmental unit.” Ann., 10-611(e). § subject Md.Code A Gov’t is “the person thing being that is discussed or described.” Web- ster’s New Third International Dictionary English (3rd ed.2002). Language Unabridged 1585 subject investigation present targeted case is the officer Dashiell, investigation. thus, Ms. not “a person interest”. JUDGMENT OF THE COURT OF SPECIAL APPEALS *24 VACATED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT BALTIMORE FOR AND TO COUNTY REMAND THE CASE TO THAT COURT FOR THE EN- light In our "personnel of determination that the records constitute 616(f), discretionary records” under authority of the custodian 10— under Attorney Gallagher, 10-618 "cannot arise.” See Gen. v. Office of 354, 341, 1036, (2000). Nonetheless, 359 Md. 753 requested Maryland A.2d 1043 may categories fall within several under the See Act. Dep’t Branches, Maryland State Police v. State NAACP of Conference of 1037, (2013) ("[T]he 430 Md. 59 A.3d 1045 fact that the requested 10-618(f) might by § records in this case have been covered would preclude personnel by § their status as records covered 10- 616(i)."). IN CONFORM- JUDGMENT

TRY OF A DECLARATORY IN THIS COURT OPINION. COSTS ANCE WITH THIS BE PAID TO THE OF SPECIAL APPEALS AND COURT BY RESPONDENT. WATTS, JJ„ dissent.

GREENE GREENE, J., WATTS, J., joins. dissenting, in which hold a record of I dissent.1 I would Respectfully, a law en- complaint against on a sustained discipline based Information exempt is not from Public forcement officer exemption. under Act its Act, Assem- enacting In the Public Information the General access “All are entitled to have bly persons declared: and the official government information about affairs of Ann., of officials and Md.Code Gen. public employees.” acts (2014) (“GP”) 4-103(a).2 § also Dep’t Prov. See Md. Branches, Police v. NAACP 430 Md. Md. State Conference of (“[T]he 1037, (2013) 179, 190, A.3d Public Information citizens Assembly’s] Act intent [General reflect[s] access to wide-ranging the State of be accorded operation govern- of their public concerning information Diamondback, 74, Kirwan 352 Md. (Quoting ment.” v. (1) agree Majority 1. I with the that: this Court should exercise its entry of to review this merits and remand for the discretion case's 450, 9; appropriate declaratory judgment, Maj. Op. see at 117 A.3d at Ann., 3-104(n)(l)(ii)l, (2) (2003, Repl.Vol.) § Safety Pub. Md.Code Rights, part which is the Law Officers' does not Enforcement Bill discipline the Public Act a record based on Information officer, Op. complaint against Maj. a sustained a law enforcement see at 13, 13; (3) n. camera 450 n. 117 A.3d at 9 an in review the relevant case, unnecessary Maj. Op. 117 A.3d at records is this see at 15- 16; Dashiell, (4) Respondent, "person S. is not a in interest” Teleta Ann., (2014) 4-101(e), Maj. Op. § as Prov. see defined Md.Code Gen. at 17. 2. Before Public Act was as Information codified Md.Code Ann., (1984, § Repl.Vol.) State Gov't 10-611 to -630. § Assembly the Public Act as GP 4- General recodified Information clarity, 101 to I to the Public Information Act’s current -601. For refer version, which, substantively purposes, is identical to for this case’s its predecessor.

465 (internal 196, (1998) 81, quotation 721 A.2d 199 marks omit- ted))).

Accordingly, Assembly expressly General directed to courts the Public Information Act “in favor interpret of a record” allowing inspection public “unless unwarranted person invasion of of a privacy interest would result[.]” 4-103(b). Branches, 190, §GP also NAACP 430 See Md. at 59 (Courts “liberally A.3d at 1043 must the Public construe[]” Information Act “to effectuate broad purpose[.]” remedial [it]s Kirwan, (Quoting 81, 199)); at 352 Md. 721 at A.2d NAACP Branches, 190, (The Md. 430 at 59 A.3d at 1043 Public Information Act “a general presumption establishes favor of government disclosure documents.” public (Quoting Co., 520, Washington Governor v. Post 360 Md. Office of (2000) (internal quotation omitted))); 262 marks Post, (“[C]ourts Washington at Md. A.2d must interpret Information exemptions [Public Act’s] nar- (Citation omitted)). rowly!.]” quotation and internal marks instance, In this I fear that the has not Majority heeded the mandate of both the General Assembly this Court’s precedent broadly to construe the Public Information Act in favor by narrowly of disclosure construing Public Informa- result, tion Act’s exemptions. As law agency enforcement will permitted be conceal from public view action that it ultimately took in to a response sustained about a law enforcement officer. This is particularly unfortunate in light that, today, honoring public’s circumstance right to know how agencies respond law enforcement especially misconduct arises out of contact misconduct— with public vital to maintaining public’s trust —is words, law enforcement. paraphrase other Justice Louis Brandéis, D. transparency the best remedy.3 Valeo, "Sunlight Buckley is said to be the best of v. disinfectants!.]” (1976) (quoting U.S. 96 S.Ct. 46 L.Ed.2d 659 Louis D. Brandéis, People's Money Other How the Bankers Use It 62 (National ed.1933)). Library Home Foundation *26 exemption Information Act’s

The Public inspection personnel shall of a deny custodian states: “[A] individual, application, perform- an a including of an record § 4- information.” GP rating, ance or scholastic achievement 811(a). that directly A is a personnel “document!] record ability perform to employment employee’s pertain[s] thus, is not a record where the job”; personnel a a document disci- employee’s] hiring, not “relate to [the document does dismissal, em- involving matter promotion, any [the pline, Post, Washington 360 Md. as an ployee’s] employee[.]” status Kirwan, 83, 547, at Md. at 721 (quoting at 759 A.2d 264 352 (internal 200) (third original) quotation at in A.2d alteration omitted). following marks For documents are example, tickets, Kirwan, see parking records: records of personnel 200-01; 84, at telephone 352 Md. at 721 A.2d records of calls Washington judicial appointees, or executive see potential 264; Post, 548, employment 360 at A.2d at Md. 759 contracts, Co., 79, Balt. 381 Md. Sys. see Univ. Md. v. Sun (2004). 102, 427, 441 847 A.2d Cnty. Shropshire, Md. v. 420 Md. Montgomery (2011), 205, A.3d held that certain “internal

23 216 this Court they because “related personnel affairs records” were records “investigation employee discipline” and because the wrongdoing”; thus, clear[ed] “there [wa]s the officers maintaining confidentiality, interest in both significant public wit- investigated cooperating in fairness to the officers and added) omitted). (citations also (Emphasis nesses.” See id. 381, (“[E]ven the best could at 23 A.3d at 216-17 officers be added) subject complaints[.]” (Emphasis to false or baseless (internal omitted)). Indeed, Shropshire, marks quotation 217, 382-83, distinguished at at this Court id. 23 A.3d Md. v. NAACP Dep’t Police Md. State Conference of Branches, 359, (2010), aff'd, A.2d 1075 430 Md.App. (2013), that, ground Shrop- on the Md. shire, affairs “specifically reference^] internal investiga- by during officers] acts taken enforcement [law accident unsustained tion of discrete motor vehicle and the them, compiled than re- allegations against rather statistics garding the acts of a group officers without identification of added). their personal information.” (Emphasis Accordingly, this Court expressly declined to “address whether records of ‘sustained’ complaints may be Shropshire, disclosed[.]” added). atMd. 374 n. 23 A.3d at 212 12 (emphasis n. I would resolve the issue that this Court expressly open left Shropshire, id. 374 n. 23 A.3d at 212 n. holding that the Public Information Act’s “personnel records” exemp- tion does not to a apply record of discipline based on a sustained against law enforcement officer. This result far different from the circumstance of permitting *27 allegations unsubstantiated of a complaint to public. be made In sustaining a complaint against officers, one of its a law agency enforcement acknowledges the truth of the very facts that “directly pertain to employment and ability [the officer's perform Post, job.” [his Washington her] 360 Md. at 547, Kirwan, 759 A.2d at 264 (quoting 83, atMd. 721 A.2d 200). at facts, contrast to such the discipline that the law enforcement agency decides administer to the officer does not directly pertain to employment or the officer’s ability to perform his or job. her Plainly put, the officer did what the did, officer regardless of how the law enforcement agency decided to respond. The administration of discipline is an action of—and thus judgment reflects the of—the law enforce- agency, ment Thus, the officer. a record of discipline based on a complaint sustained against a law enforcement record; officer is not a personnel instead, it among is the very types of document that the Public Information Act is designed to make public: available to the a document that reflects how a public agency responds to an employee’s proven miscon- duct.4 Making public discipline a record of based on a sustained against a law enforcement officer would not “chill” the law enforce- 459, disciplinary process. ment Maj. Op. at By at 15. complaint against time that a a law enforcement officer has been sustained, concluded, investigation already has and all that remains mandates, law the result being

In addition to to know how law enforcement public’s right acknowledging allegations of misconduct respond to sustained agencies confidence in law enforce- preserving public’s critical to ment. reasons, I respectfully, dissent.

For the above joins that he has authorized me to state Judge GREENE this opinion. agency discipline to adminis- is for the law enforcement to choose what

ter. City Schenectady, Additionally, Daily Co. v. 93 N.Y.2d Gazette 1072, (1999), Maj. Op. N.E.2d 688 N.Y.S.2d see Appeals of New concluded that 117 A.3d at the Court of York discipline records of based on law enforcement officers' confirmed *28 exempt misconduct were from New York’s Freedom of Information exemption, "personnel Law but the fact that the under its holding. misconduct was confirmed was not the basis of that Court's Gazette, Daily addressing the critical that the instead of circumstance confirmed, law enforcement officers’ misconduct had been the Court of Appeals rejecting newspaper's of New York focused on contention identity, purpose [party] requesting that "the ac- statusf] 1076; relevant, cess” was 688 N.Y.S.2d 710 N.E.2d at for exam- ple, newspaper had contended that the record was not newspaper legal because the not intend to "use the records in a did id., proceeding,” words, 688 N.Y.S.2d N.E.2d at 1074. In other Appeals failed vital the Court of of New York to address the allega- distinction between confirmed misconduct unsubstantiated contrast, By already explicitly of misconduct. this Court has tions recognized Shropshire, 420 Md. that distinction. See at 374 n. (This expressly A.3d at 212 n. 12 Court declined to "address whether disclosed[.]”). complaints may records of 'sustained' be notes new they 10-618 stated that all were “derived without substantive change” from Article 76A, § 3. See II Laws Maryland at 1357-1364. 198k The Public Information Act premise was enacted under the that, persons “[a]ll are entitled to have access to information about the affairs of government official acts of public 10-612(a) employees” officials and according Section 10-612(b) State Government Article. Section articulates disclosure, sentiment in favor of “unless an unwarranted inva- sion of privacy person interest would result”: (a) carry right To out the set forth subsection of this section, unless an unwarranted invasion of the privacy of result, person in interest would this Part III of this subtitle shall be construed favor of permitting inspection of a record, public with the least cost and least delay to the governmental person or unit requests inspection. 10-614, Section entitled “Applications”, dictates the proce- dural framework for requesting records and for the response by the 614(b)(3)(iii), custodian of records. Section in par- 10—