American Civil Liberties Union Foundation v. Leopold

NAZARIAN, J. “Finishing second in the Olympics gets you silver. Finishing second in politics gets you oblivion.” Richard M. Nixon 1 John R. Leopold, then the Anne Arundel County Executive, was indicted in early 2012 for misconduct in office, based in part on allegations that he used his position to compile dossiers on his potential (or at least perceived) political challengers and enemies. Some of those individuals 2 and the American Civil Liberties Union Foundation of Maryland (“ACLU”) (collectively “the appellants”) requested copies of the information Mr. Leopold had assembled about them from Mr. Leopold (in his individual capacity and as County Executive), and James Teare (then the Anne Arundel County Chief of Police), or the custodian of records, under the Maryland Public Information ¹⁰³ Act (“PIA”). 3 Anne Arundel County (the “County”) responded, over time, to these requests on their behalf, and the appellants were dissatisfied with the County’s response. The appellants sued in the Circuit Court for Anne Arundel County.

Their amended complaint alleged that Mr. Leopold, Chief Teare, and the County (collectively, “the appellees”) violated the PIA, and asked the court to compel the production of additional documents, enter a declaratory judgment, and award damages. The appellees filed a Motion to Dismiss and/or for Summary Judgment, the circuit court granted it, and this appeal followed. We agree with the appellees in large part, but we hold that the circuit court erred in dismissing Count I, in which the appellants alleged that the appellees violated the PIA by wrongfully compiling and using information about the appellants for use in Mr. Leopold’s reelection campaign, and we remand for further proceedings on that count. I. BACKGROUND Mr. Leopold’s misconduct in office was the subject of a separate criminal case, 4 but that story sets the stage for the appellants’ requests for information, the responses they received (or didn’t) and from whom, and the PIA claims at issue here. ¹⁰⁴ 1.

Mr. Leopold’s conviction. Mr. Leopold was indicted on March 2, 2012. Among other things, the Indictment alleged that he had used his Executive Protection Officers (“EPOs”) 5 to compile information on his political opponents: [Mr.] Leopold directed on-duty [EPOs] to create dossiers on persons he viewed as political challengers, including but not limited to, Joanna Conti and Carl Snowden. The EPOs did not consider these people to be security risks.

After a bench trial, Mr. Leopold was found guilty of two charges of misconduct while in office. The court found specifically that Mr. Leopold had wrongfully diverted County employees and resources to his election campaign, including the creation of dossiers (as we recounted in our reported opinion on appeal): It should have come as no surprise to [Mr. Leopold] that employing on duty sworn police officers to work on his election campaign was wrongful and illegal. Section 13-303 of Article XXIV of the Maryland Code provides that an employee of a local entity may not be required to provide any political service. Section 13-105 further provides that an employee of a local entity, which Anne Arundel County is a local entity, may not engage in political activity while on the job during working hours. [Mr. Leopold], as an individual with decades of Governmental and election experience, was beyond a doubt aware that requiring [ ] on duty police officers to perform substantial services for his reelection campaign was wrongful and illegal. ¹⁰⁵ By wrongfully taking substantial advantage of free public employee help for his campaign, an asset unavailable to his opponent, [Mr. Leopold] was placing his thumb on the scales of our political system to heavily tilt it in his favor.

These actions robbed Anne Arundel County citizens of the fair political electoral process they were entitled to receive. [Mr. Leopold’s] actions were done systematically during the election season of 2010. [He] committed these acts knowingly, willfully and intentionally and under color of his office as County Executive. He did so corruptly and is guilty of this offense. Leopold, 216 Md.App. at 600-01, 88 A.3d 860 . The trial court barred Mr. Leopold from running for political office in Maryland for five years, sentenced him to a brief incarceration and house arrest followed by five years’ probation, and ordered him to perform 400 hours of community service and pay a $100,000 fine.

This Court affirmed his conviction on appeal, although we struck that portion of his sentence that prohibited him from running for public office. 2. The information requests. Almost immediately after Mr. Leopold’s indictment, the appellants began to investigate the existence and contents of the alleged dossiers. Most importantly for our purposes, the appellants served a series of PIA requests: • March 6, 2012 (“First Request”): The ACLU served on “Mr. John Leopold (Or Custodian of Records), Office of the County Executive,” and on “Chief James Teare (Or Custodian of Records), Anne Arundel County Police Department” a PIA request for the “Leopold dossiers” 6 on Carl Snowden and Joanna Conti.

The First Request included eleven numbered paragraphs, each seeking a ¹⁰⁶ category of records. The County responded by letter dated March 13, 2012 and attached a partial production. • March 16, 2012: The ACLU served—again on Mr. Leopold and Chief Teare—the same requests as the First Request on behalf of thirteen more individuals. The County responded by letter dated March 30, 2012 and attached a partial production and supplemented its response to the First Request. • March 23, 2012: The ACLU served on the same parties a supplemental request that named four more individuals. The County’s March 30, 2012 letter also responded to this request. • April 3, 2012: 7 The ACLU served the same requests as to another individual.

The County responded by letters dated April 25, 2012 and June 28, 2012. • August 15, 2012: The ACLU served on the Police Department a request for all “Criminal History Records Information” as to all of the individuals named in the first four Requests. The County responded by letters dated September 27, 2012 and October 10, 2012. 3. The County’s responses. The County responded to all five requests on behalf of all of the appellees.

The County’s response letters attached some responsive documents, but declined to disclose anything from two discrete categories of information. First, it declined to release to the ACLU certain tape-recorded interviews of Mr. Leopold’s EPOs by Major Edward Bergin (and referred to as “the Bergin tapes”). According to Major Bergin, he became suspicious that Mr. Leopold had used the EPOs for improper purposes, so he interviewed two of them in March 2011 and turned the tapes over to the Maryland State Prosecutor’s Office. The County indicated in its March 30, 2012 letter that ¹⁰⁷ the only additional responsive documents (i.e., the Bergin tapes) were being withheld as “pertaining] to the pending criminal proceedings undertaken by the State Prosecutor’s Office, which likely constitute evidence in that matter, and which will not be released at this time pursuant to [SG] § 10-618(f) of the MPIA.” The County ultimately provided the tapes on March 4, 2013, after Mr. Leopold’s trial was complete.

Second, the County declined to provide e-mails that were (as the appellants requested) “kept by, prepared by or for, or compiled by or for” EPO personnel “concerning any individual or group, whether or not at the explicit direction of [Mr.] Leopold.” Although the County provided some responsive documents on June 28, 2012, the letter stated that the County would “continue to work on reviewing additional e-mails that may be responsive as well.” It followed up on September 27, 2012, with a letter asking the appellants to narrow the scope of the requests due to the volume of potentially responsive emails: Each of the twenty two (22) County Executive staff employee electronic mailboxes for review includes an archived mail file and a trash file, both of which can contain anywhere from 10,000 to 15,000 or more documents to search. Consequently we are asking if you could please clarify and limit your search in some fashion to which we are able to respond. So far as we can tell, the appellants did not narrow their requests. 4. The underlying litigation.

After the appellants filed their initial complaint on December 12, 2012, the parties exchanged letters and additional information, and the appellants amended their complaint and added Chief Teare as a defendant. 8 They ultimately alleged three categories of PIA violations: ¹⁰⁸ • Count One (against Mr. Leopold, the County, and Chief Teare): “Improper Collection, Use, Creation and Dissemination of Government Records Containing Personal Information.” The appellants alleged that the dossiers constituted personal records under the PIA and that there was “no legitimate governmental purpose” for the appellees to create them. The appellants relied on SG § 10—624(b) and SG § 10-626 (which we discuss further below). • Count Two (against all defendants): “Improper Denial of Access to Public Records.” The appellants alleged that the appellees violated the PIA “by failing to adequately search for responsive records, thus avoiding disclosure of responsive information,” “by invoking inapplicable exemptions to the PIA as a basis for denying or temporarily denying” their requests, and when they “failed to respond to their requests for electronically stored information” (citing SG § 10-623(d)(l)). • Count Three (against the County and Chief Teare): “Failure to Timely Petition for Continuance of a Temporary Denial.” The appellants claimed that the appellees violated SG § 10-619 by withholding the Bergin tapes without seeking approval from the court (citing SG § 10-623(d)(2)). For each count, appellants sought a declaratory judgment and asked the court to order the appellees to search for and provide all responsive documents. They also sought “compensatory or nominal damages” for violation of their rights under the PIA, along with attorney’s fees and “such other relief that is just and proper.” Mr. Leopold responded with a Motion to Dismiss or for Summary Judgment.

On October 15, 2013, the County did the same, and Chief Teare followed with a Motion to Dismiss. The ACLU and the other appellants opposed these motions and filed a Motion for Partial Summary Judgment of their own on January 31, 2014. After a hearing, the circuit court issued a written order and memorandum opinion that granted the Motions to Dismiss of Mr. Leopold, the County, and Chief ¹⁰⁹ Teare as to Count I; granted the Motions for Summary Judgment of Mr. Leopold, the County, Mr. Davis, and Chief Teare as to Count II; and granted the Motions to Dismiss of the County, Mr. Davis, and Chief Teare as to Count III. The court also denied the appellants’ motion for partial summary judgment.

This appeal followed.

II

DISCUSSION The public’s right to information about government activities lies at the heart of a democratic government. Maryland’s [PIA] grants the people of this State a broad right of access to public records while protecting legitimate government interests and the privacy rights of individual citizens. Office of the Attorney General, Maryland Public Information Act Manual (“MPIA Manual”) Preface (13th ed., October 2014). If there were ever a law school class on the MPIA, this appeal would frame a great exam question.

It covers all three of the PIA’s core purposes—the public’s right to information, the State’s right to protect legitimate governmental interests, and individuals’ rights to privacy—although in different order, 9 and we agree with the circuit court’s analysis as to two of the three counts. We disagree with the court’s decision to ¹¹⁰ dismiss the appellants’ claims, in Count I, that the appellees misused public records and violated their privacy rights under the PIA (although we offer no views on the merits of those claims on this posture). But we agree that the appellees were entitled to dismissal of Count II, because the appellees did not improperly deny the appellants access to public records, and Count III, because the County withheld the Bergin tapes consistently with the legitimate government interest in the then-pending prosecution. We review a successful motion to dismiss for errors of law: The standard of appellate review of a lower court’s grant of a motion to dismiss is well-settled: “[i]n reviewing the underlying grant of a motion to dismiss, we must assume the truth of the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from those allegations.” Debbas v. Nelson, 389 Md. 364, 372 [ 885 A.2d 802 ] (2005) (citations omitted).

We review these issues as a matter of law. See Davis v. Slater, 383 Md. 599, 604 [ 861 A.2d 78 ] (2004) (citations omitted). Williams v. Peninsula Reg’l Med. Ctr., 440 Md. 573, 578 , 103 A.3d 658 (2014).

We undertake a similar de novo review of a successful summary judgment motion. Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443 , 795 A.2d 715 (2002). Because the trial court does not resolve any disputed issues of fact on that posture, see Md. Rule 2-501(a), “the standard for appellate review of a trial court’s grant of a motion for summary judgment is simply whether the trial court was legally correct.” Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005 (1993).

For the opposing party to defeat such a motion, it “must show that there is a genuine dispute as to a material fact by proferring facts which would be admissible in evidence.” Id. We consider the claims here against the overarching principle that, as its title suggests, the PIA is meant to encourage and facilitate public access to information in the hands of State government. To that end, the spirit of the PIA ¹¹¹ “ ‘establishes a public policy and a general presumption in favor of disclosure of government or public documents,’ ” Office of Governor v. Washington Post Co., 360 Md. 520, 544 , 759 A.2d 249 (2000) (quoting Kirwan v. The Diamondback, 352 Md. 74, 80-81 , 721 A.2d 196 (1998)); see also Comptroller of Treasury v. Immanuel, 216 Md.App. 259, 265 , 85 A.3d 878 (2014) (“The [PIA] grants the public the right to inspect public records in a way that favors public access.”), so as a general matter we err on the side of disclosure. For the same reason, we interpret and apply disclosure exceptions narrowly.

Fior-etti v. Maryland State Board of Dental Examiners, 351 Md. 66, 77 , 716 A.2d 258 (1998). A. Count I Stated A Claim. Count I of the Amended Complaint focused on the alleged dossiers. The appellants alleged that the appellees violated SG § 10-624, and they sought to recover for those violations via SG § 10-626.

The appellants alleged that they “suffered actual damages due to emotional distress,” and sought declaratory relief, along with “actual compensatory or nominal damages” and attorney’s fees. The trial court held that the appellants were precluded from bringing this claim because, in its words, “recovery for emotional distress would be inapposite under the [PIA], in particular SG § 10-626.” The court concluded first that a plaintiff in a PIA action must “meet a heightened burden of proof,” ie., that he must prove his claims by “clear and convincing evidence.” The court analogized to a tort claim for emotional distress, and reasoned that the appellants were required also to allege and prove “malice” to overcome Mr. Leopold’s public official immunity defense: [A]n essential element in a cause of action alleging intentional infliction of emotional distress is that the conduct “must be extreme and outrageous,” and “pled and proved with particularity.” Silkworth v. Ryder Truck Rental, Inc., 70 Md.App. 264, 271 [ 520 A.2d 1124 ] (1987). To overcome public official immunity, a plaintiff must establish that the defendant acted with actual malice. Thomas v. City of ¹¹² Annapolis, 113 Md.App. 440, 456 [ 688 A.2d 448 ] (1997).

Plaintiffs admitted during oral argument ... that the term “malice” does not appear in its First Amended Complaint. (Footnote omitted.) In the end, the court declined to “broaden” the PIA to encompass what it viewed as a claim purely for emotional damages, and dismissed Count I. The court also interpreted SG § 10-626 not to provide a right of action for a violation of SG § 10-624(b), and therefore declined to enter a declaratory judgment. The appellants argue here that the circuit court erred in analyzing both whether the appellees had violated the PIA and, if they did, whether the PIA afforded the appellants any remedy under either of the relevant provisions. First, SG § 10-624 defines “personal records” and the purposes for which State government may or may not create them: (a) In this section, “personal record ” means a public record [ 10 ] that names or, with reasonable certainty, otherwise identifies an individual by an identifying factor such as: (1) an address; (2) a description; (3) a finger or voice print; (4) a number; or (5) a picture.

(b) (1) Personal records may not be created unless the need for the information has been clearly established by the unit collecting the records. (2) Personal information collected for personal records: ¹¹³ (i) shall be appropriate and relevant to the purposes for which it is collected; (ii) shall be accurate and current to the greatest extent practicable; and (iii) shall not be obtained by fraudulent means. Id. (emphasis added).

The section goes on to give detailed guidelines about how an official custodian may collect personal records, and establishes reporting requirements (which are not at issue here). SG § 10-624(c)-(e). Second, § 10-626 creates remedies for violations of the PIA but does not reference SG § 10-624 expressly. It does, however, provide that people who violate their obligations under the PIA willfully and knowingly are liable for actual damages, attorney’s fees, and litigation costs: (a) A person, including an officer or employee of a governmental unit, is liable to an individual for actual damages that the court considers appropriate if the court finds by clear and convincing evidence that: (1) (i) the person willfully and knowingly permits inspection or use of a public record in violation of this Part III of this subtitle; and (ii) the public record names or, with reasonable certainty, otherwise identifies the individual by an identifying factor such as: 1. an address; 2. a description; 3. a finger or voice print; 4. a number; or 5. a picture; or (2) [provisions not relevant here.] (b) If the court determines that the complainant has substantially prevailed, the court may assess against a defen ¹¹⁴ dant reasonable counsel fees and other litigation costs that the complainant reasonably incurred.

Id. (emphasis added). 1. Violations and remedies under SG § 10-626 The appellants contend that the trial judge incorrectly read SG § 10-626 not to provide a civil remedy for violations of SG § 10-624, and that without one, § 10-624 has no teeth. They argue as well that Mr. Leopold violated SG § 10-626 independently when he “used” the dossiers in his campaign, whether or not he violated § 10-624 when he “created” them.

Mr. Leopold and the other appellees counter that they merely compiled any dossiers from existing records, and thus that they did not “create” anything for purposes of SG § 10-624, and that Mr. Leopold did not “permit inspection or use of a public record” under SG § 10-626 even if he did use the dossiers for political purposes. We agree with the appellants that the trial court read the interplay between SG § 10-624 and § 10-626 too narrowly. 11 We begin with the words of the statute, and from there apply well-accepted principles of statutory construction: The primary indicator of the Legislature’s intent is the language of the statute. Whack v. State, 338 Md. 665, 672 [ 659 A.2d 1347 ] (1995). We interpret statutes to give every word effect, avoiding constructions that render any portion of the language superfluous or redundant.

Warsame v. State, 338 Md. 513, 519 [ 659 A.2d 1271 ] (1995); see also 2A Sutherland Statutory Construction § 46.06, at 119-20 (5th ed. 1992 & 1995 Cum.Supp.). In addition, we construe the statute as a whole, interpreting each provision of the statute in the context of the entire statutory scheme. Warsame, 338 Md. at 519 [ 659 A.2d 1271 ] (citing GEICO v. Insurance ¹¹⁵ Comm’r, 332 Md. 124, 132 [ 630 A.2d 713 ] (1993)); see also 2A Sutherland Statutory Construction § 46.05, at 103 (5th ed. 1992 & 1995 Cum.Supp.). If the statutory language, read in its entirety, is clear and unambiguous, and comports with the Legislature’s purpose, we need not inquire further to discern the statute’s meaning.

Mustafa v. State, 323 Md. 65, 73 [ 591 A.2d 481 ] (1991). Blondell v. Baltimore City Police Dept., 341 Md. 680, 691 , 672 A.2d 639 (1996). Count I of the Amended Complaint cites generally to both SG § 10-624 and § 10-626. In one paragraph, it alleges that “[t]here was no legitimate governmental purpose, nor any clearly established need, for [appellees] to create government records of personal information about any [appellants], and the compilation, use, and dissemination of these records by [Mr.] Leopold, Anne Arundel County, and [Chief] Teare violated” § 10-624(b), then, in the next paragraph, alleges that these violations “give rise to claims” under § 10-626.

This puts us into an analytical loop: § 10-626 provides that a person is liable “for actual damages that the court considers appropriate” after a finding (by “clear and convincing evidence”) that he willfully and knowingly “permitted] inspection or use of a public record in violation of Part III of this subtitle,” a reference that encompasses § 10-624(b)(l). Although they do not say so in so many words, the appellants seem to view the act of compiling the dossiers as the creation of a new record unto itself, and thus the violation of § 10-624(b), whatever they might contain. We say that the appellants seem to view the compilation of dossiers as “creating” a record because, on a close reading, the Amended Complaint does not actually allege this. To be sure, it alleges that dossiers were compiled, and wrongfully so.

But it also groups forms of the verbs “create,” “compile,” “use,” and “disseminate” whenever any one of them might apply, and never alleges that documents were created in connection with Mr. Leopold’s improper political activity or that any of the documents the dossiers might have contained (and the Amended Complaint is understandably vague about ¹¹⁶ their contents) was not properly in the hands of County government in the first place. The real gravamen of Count I is that personal records were compiled and used by individuals or agencies of County government who had not “clearly established” a need for them: 108. The records created, compiled, used, and disseminated by [appellees] about the [appellants] are “personal records” as defined by the MPIA, Md.Code Ann., State Gov’t. § 10-624(a). 109. There was no legitimate governmental purpose, nor any clearly established need, for [appellees] to create government records of personal information about any [appellant], and the compilation, use, and dissemination of these records by [appellees] Leopold, Anne Arundel County, and Teare violated the MPIA, Md.Code Ann., State Gov’t. § 10-624(b), which provides that “[p]ersonal records may not be created unless the need for the information has been clearly established by the unit collecting the records.” 110. [Appellees’] violations of Md.Code Ann., State Gov’t. § 10-624, give rise to claims against the [appellees] pursuant to Md.Code Ann., State Gov’t. § 10-626.

The Amended Complaint does not, therefore, present the potential question about whether the act of compiling records already in government files into a new file is the creation of a new record. And we need not address it anyway because, we hold, the alleged collection, dissemination, and use by these appellees—the misconduct that the Amended Complaint actually alleges—stated a claim under SG § 10-626 by itself. First, there’s no question that SG § 10-626 covers the same kind of records that SG § 10-624 does. Although SG § 10-626 uses the term “public records” rather than “personal records,” it equates the two by defining “public records” for its purposes as having all the characteristics that SG § 10-624 lists for personal records—address, description, finger/voice print, number, or picture. 12 ¹¹⁷ Second, SG § 10-626 imposes liability for improper inspection or use “in violation of this part III of this subtitle,” SG § 10—626(a)(l)(i), a reference broad enough (Part III includes SG § 10-601 through SG § 10-628) to encompass conduct under SG § 10-624.

The MPIA Manual, published by the Office of the Attorney General, sees the pairing too. It explains that SG § 10-626(1) “applies to personal records defined by [SG § 10-624].” (Emphasis omitted.) MPIA Manual 8-3. We recognize that § 10—624(b)(1) begins by stating that “[personal records may not be created,” and that at first blush this language might seem to put us back into the same analytical loop as before. But there is no dispute that the documents at issue were legitimately “created” in the first place by whatever unit of County government possessed them in the first place, nor any dispute that County government had met the “established need” requirement of § 10-624(b)(l) before the records were collected by Chief Teare or others and compiled into dossiers.

So the fact that records were legitimately in the possession, custody, or control of County government cannot immunize from liability the officials or agencies who later re-collected and misused records they independently would have lacked any clearly established need to collect. Third, Mr. Leopold tries to split hairs at this point by claiming that he (and others) did not violate SG § 10-626 because they didn’t “use” the documents they compiled into dossiers. We disagree. The act of compiling the dossiers is a “use” of the documents they contained under any sensible definition of the word, even if the documents were already in hand for some other purpose.

The dictionary definition, “the act or practice of employing something,” Merriam-Webster Collegiate Dictionary 1378 (11th ed.2011), already includes this notion of the term: the information put into the dossiers, once put there, was put to “use” in that new capacity. And Mr. Leopold “used” the records a second time when he looked to the information for campaign purposes. Without first having “clearly established” a need for the documents, Mr. Leopold should not have been “using” them at all, whether he wore his County Executive Hat or his Candidate Hat at the time. ¹¹⁸ Our reading of SG § 10-626 also squares with the purposes of the PIA. One general purpose—to encourage disclosure— doesn’t really come into play here: obviously, the “disclosure” (which we address in a moment) is one the appellants would rather not have occurred.

But another purpose is to protect privacy, and that purpose would be thwarted if the PIA is read to leave mandatory provisions like SG § 10-624 with no enforcement mechanism. 13 The penalty