Amster v. Baker

Woodward, J, On April 19, 2012, appellant, Jayson Amster, filed a Maryland Public Information Act (“MPIA”) request with Rushern L. Baker, County Executive of Prince George’s County, seeking disclosure of a lease between Whole Foods and Calvert Tract, LLC (“Calvert Tract”). The Prince George’s County Office of Law denied the request, informing appellant that the lease was not subject to disclosure under the MPIA. On July 3, 2012, appellant filed a complaint in the Circuit Court for Prince George’s County against the County Execu ²¹⁵ tive, seeking disclosure of the Whole Foods lease. Subsequently, the court granted the motion of appellee, Calvert Tract, to intervene as a defendant.

The County Executive and Calvert Tract both filed motions for summary judgment on the grounds that the lease was exempt from disclosure under the MPIA’s exemption for confidential commercial information. 1 On June 4, 2013, following a motions hearing, the trial court granted the motions for summary judgment, ruling that the lease was exempt from disclosure under the MPIA. The court also dismissed the County Executive as a defendant and substituted appellee, Prince George’s County (“the County”), in his place. On appeal, appellant presents one question for our review, which we have rephrased as follows: Did the circuit court err in granting summary judgment by ruling that the Whole Foods lease was exempt from disclosure under GP § 4-335(2)? For reasons set forth below, we answer this question in the negative and affirm the judgment of the circuit court.

BACKGROUND Calvert Tract owns approximately thirty-six acres of land near the intersection of Baltimore Avenue (U.S. 1) and East-West Highway (Maryland Route 410) in Prince George’s County. In October 2011, Calvert Tract sought a zoning change from R-55 (Single-Family Detached Residential) to MUTC (Mixed-Use Town Center) in order to develop the land into “a mix of office, commercial, and residential use.” As part of the development process, Calvert Tract entered into confidential negotiations and executed a commercial lease with ²¹⁶ Whole Foods as the anchor store. Calvert Tract provided a redacted copy of the lease to the County “as part of the ongoing discussions of the development of the property.” 2 County officials acknowledged the lease’s existence in communications with constituents. Appellant, a member of the Maryland bar and a Prince George’s County resident, submitted an MPIA request to the County Executive on April 19, 2012, seeking, among other items, “[a]ny lease for a Whole Foods store ... located in Prince George’s County.” The County Office of Law responded to the request on May 7, 2012, informing appellant that the lease was not subject to disclosure under the MPIA because the lease was “confidential commercial information.” On July 3, 2012, appellant filed a pro se Complaint for Disclosure of Public Record against the County Executive in the circuit court, seeking, among other items, “a certain lease for a Whole Foods grocery store to be located in Prince George’s County which is a prominent part of pending Zoning Application A-10018,” Calvert Tract filed a motion to intervene, which the court granted.

Calvert Tract and the County Executive filed separate motions for summary judgment, arguing that the lease was exempt from disclosure under GP § 4-335(2), because the lease is a private document containing confidential commercial information that Calvert Tract voluntarily provided to the government and would not ordinarily release to the public. Calvert Tract attached an affidavit to its motion, which stated, among other things, that (1) Calvert Tract entered into a lease with Whole Foods to open a store at the intersection of U.S. 1 and Maryland Route 410; (2) the lease “was the product of extensive confidential negotiations”; (3) a redacted version of ²¹⁷ the lease was provided to the County with the intention of the lease remaining private; 3 (4) Calvert Tract “does not customarily publicly disclose its commercial leases”; (5) the lease contains financial information; (6) Calvert Tract “intends to pursue negotiations with other businesses to enter into” leases at the property; and (7) disclosure of the lease “would place Calvert [Tract] at a disadvantage when negotiating future commercial leases for the property.” Appellant filed an opposition to the motions for summary judgment, in which he argued that summary judgment should be denied, because the mov-ants did not meet their burden of showing that “the document or a severable portion meets all elements of exemption.” (Emphasis in original). The circuit court held a motions hearing on June 4, 2013, at which the judge ruled from the bench that the lease was exempt from disclosure under GP § 4-335(2) and that appellant was not entitled to an in camera review of the lease. The court stated the following: And when I look at [4-335] I do find that it’s — that it is confidential information and confidential financial information or a trade secret. ... [I]t’s very clear, based on Critical Mass [Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C.Cir.1992) (en banc), cert. denied, 507 U.S. 984 , 113 S.Ct. 1579 , 123 L.Ed.2d 147 (1993)] that ... there is an exemption for confidential trade secrets, commercial or financial information .... [I]n the situations with the NAACP, Governor Glendening, and these type of situations, these are public entities ... where I am looking at the information to make the determination of redaction or not to redaet[ ].

As a judge, yes, I can go back and forth. But it’s very difficult to do an ex parte with one party and then report to another party. I end up being an arbitrator, and I’m a judge. I’m not an arbitrator ... that is just a perilous path for a judge to do when it comes ²¹⁸ to confidential, financial information.

What I may think is disclosable, may not be really disclosable at all, and may be the revelation of confidential information. ... The law based on the [MPIA] and Critical Mass lea[d] me to the conclusion that this is exempted material and, therefore, I will deny the request of [appellant]. (Emphasis added). The court also dismissed the County Executive as a defendant and substituted the County in his place.

Appellant filed a motion to reconsider, alter, or amend, which the trial court denied. Appellant filed his timely notice of appeal on October 30, 2013. 4 PARTIES’ CONTENTIONS Appellant contends that the circuit court erred by ruling that the confidential commercial information exemption to the MPIA barred the lease’s disclosure. According to appellant, the federal “Critical Mass” rule, which provides a categorical exemption from disclosure under the Freedom of Information Act (“FOIA”) for information voluntarily provided to the government by private parties, “is inapposite to this case,” because the County “had no need for the information in the lease.” In addition, appellant claims that “Calvert Tract offered no ‘proof of the provider’s custom for not disclosing all or part of the document,” which is required to satisfy the Critical Mass test. 5 Appellant further asserts that, even if the lease is exempt under the confidential commercial information exemption ²¹⁹ found in GP § 4-335(2), that exemption is not absolute. Because representatives of appellees discussed provisions of the lease in public, appellant argues that those provisions are not protected by the MPIA exemption.

Finally, appellant claims that other parts of the lease not covered by the confidential commercial information exemption should be severed and released, because “[cjourts will no longer accept conclusory and generalized allegations of exemption.” Appellant concludes that the trial court erred in exempting the lease in its entirety, without conducting an in camera review to determine which portions of the lease did not constitute confidential commercial information and could be disclosed. Appellees respond that the circuit court did not err in ruling that the lease was exempt under the confidential commercial information exemption of the MPIA, because the lease (1) is commercial in nature, (2) was submitted to the government voluntarily, and (3) would not ordinarily be subject to public disclosure. According to appellees, public disclosure would allow Calvert Tract’s competitors “to derive an unfair commercial advantage,” and as a consequence, developers would “be dissuaded from volunteering useful information to County officials, which will weaken the ability of County officials to make well-informed, strategic decisions and to promote economic development in the County.” Calvert Tract also asserts that, although the “existence of the lease” has been made public, “at no point have the contents of the lease been made public.” (Emphasis in original). Calvert Tract argues that the lease “cannot be transformed into a public record simply because a redacted version has been provided to the relevant County and not disclosed further.” Furthermore, appellees claim that “segregability is not an appropriate remedy,” because the circuit court does not have sufficient expertise to determine what is confidential or proprietary information in a commercial lease.

The County argues that cases that call for severable, redacted portions of exempt ²²⁰ documents all concerned “quintessential government documents” that fell under “different categories of exemptions” with different purposes, and thus do not apply to the confidential commercial information exemption. Calvert Tract claims that, if trial judges were “permitted to comb through commercial leases, then all future developers and investors in Maryland will be subject to potentially inconsistent determinations as to what elements of a lease are proprietary.” STANDARD OF REVIEW The Court of Appeals set out the appellate standard of review for a grant of summary judgment in Tyler v. City of College Park: Whether a circuit court’s grant of summary judgment is proper in a particular case is a question of law, subject to a non-deferential review on appeal. As such, in reviewing a grant of summary judgment, we review independently the record to determine whether the parties generated a dispute of material fact and, if not, whether the moving party was entitled to judgment as a matter of law. We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the well-plead facts against the moving party. 415 Md. 475, 498-99 , 3 A.3d 421 (2010) (citations omitted).

Ordinarily, we “consider only the grounds upon which the trial court relied in granting summary judgment.” Ross v. State Bd. of Elections, 387 Md. 649, 667 , 876 A.2d 692 (2005) (internal quotation marks omitted). When faced with an MPIA dispute, a trial court “must interpret the [Act’s] exemptions narrowly.” Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 77 , 716 A.2d 258 (1998). “The Public Information Act’s strong preference for public access to government documents must be considered whenever a court is applying the particular provisions of the statute.” Md. Dep’t of State Police v. Md. State Conference of NAACP Branches, 430 Md. 179, 191 , 59 A.3d 1037 (2013) (“NAACP Branches”). The government has the burden of ²²¹ sustaining its decision to deny the inspection of a public record. Md. Code (2014), § 4-362(b)(2)(i)(1) of the General Provisions Article (“GP”); see also Fioretti, 351 Md. at 78 , 716 A.2d 258 .

Whether to conduct an in camera inspection of the requested documents falls within the trial court’s discretion. See Cranford v. Montgomery Cnty., 300 Md. 759, 779, 791 , 481 A.2d 221 (1984). DISCUSSION The General Assembly codified a general right to access to public information in the MPIA. See GP §§ 4-101 to -601.

The Act “shall be construed in favor of allowing inspection of a public record.” GP § 4403(b); see Kirwan v. The Diamondback, 352 Md. 74, 81 , 721 A.2d 196 (1998) (noting that the Act “must be liberally construed in order to effectuate the Public Information Act’s broad remedial purpose” (citations and internal quotation marks omitted)). The Court of Appeals recently noted, however, that [wjhile the public policy of the MPIA favors disclosure, the purpose of the Act reveals a legislative goal other than complete carte blanche, unrestricted disclosure of all public records. The legislative purpose underpinning the MPIA is that “citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government.” Immanuel v. Comptroller of Maryland, 449 Md. 76, 88 , 141 A.3d 181 (2016) (emphasis in original) (citations and internal quotation marks omitted). The Act contains three categories of exemptions to the general rule favoring disclosure.

The first category instructs the custodian to deny inspection “of a public record or any part of a public record” if inspection would be contrary to statute, regulation, case law, or court order. GP § 4-301. The second category contains a mandatory requirement for the custodian to “deny inspection of a public record” or any part of a public record for specific types of records, such as hospital records, adoption records, or personnel records; or records ²²² containing specific types of information, such as medical information, licensing records, trade secrets, or confidential information. GP §§ 4-304 to -326, 4-328 to -340.

The third category gives the custodian discretion to deny inspection “if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest.” GP § 4-343. As to all exemptions, if a custodian denies an MPIA request, the custodian “shall ... allow inspection of any part of the record that is subject to inspection and is reasonably severable.” GP § 4-203(c)(3). At issue in the instant case is a second category exemption found in GP § 4-335: Trade secrets; confidential information A custodian shall deny inspection of the part of a public record that contains any of the following information provided by or obtained from any person or governmental unit: (1) a trade secret; (2) confidential commercial information; (3) confidential financial information; or (4) confidential geological or geophysical information. The Federal Freedom of Information Act (“FOIA”) has an identical provision exempting disclosure for “matters that are ... trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552 (b)(4) (2012) (“Exemption 4”).

Like the MPIA, FOIA also requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552 (b). The Court of Appeals has recognized “that the purpose of the Maryland PIA is ‘virtually identical’ to that of the Federal FOIA and that, except where there may be some relevant differences in the two statutes, we may, and should, look to persuasive interpretations of the Federal Act.” Stromberg Metal Works, Inc. v. Univ. of Md., 395 Md. 120 , 127 n. 2, 909 A.2d 663 (2006) (citations omitted); see also Immanuel, 449 ²²³ Md. at 89, 141 A.3d 181 (“We have recognized the utility of looking to FOIA jurisprudence in interpreting the exemptions under the MPIA.”). For example, in Stromberg, the Court of Appeals considered its prior case law interpreting the “executive deliberative process privilege” found in GP § 4-344, as well as federal case law discussing Section 552(b)(5) of FOIA, because the MPIA provision was derived from the federal analog. See 395 Md. at 124-25 , 909 A.2d 663 .

In Office of Governor v. Washington Post. Co. (“Washington Post”), on the other hand, the Court of Appeals held that the MPIA applied to the Office of the Governor; in doing so, the Court distinguished federal case law construing FOIA as not applying to the Office of the President on the grounds that the statutory language at issue was different. 360 Md. 520, 532-36 , 759 A.2d 249 (2000). Federal courts had held that FOIA did not apply to the Office of the President because that office is not an “agency,” and because there was federal legislative history exempting “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President” from the term “agency.” Id. at 533-34 , 759 A.2d 249 (citations omitted). In Washington Post, the Court of Appeals held that the MPIA did apply to the Office of the Governor, because, unlike FOIA, which applies only to “agency records,” the MPIA subjects all “public records” to disclosure, and Maryland had no such legislative history exempting the Office of the Governor from the MPIA’s reach.

Id. at 534-36 , 759 A.2d 249 . In summary, in interpreting the MPIA, the Court of Appeals has indicated that the federal caselaw on FOIA is highly persuasive, especially where the statutory provisions are identical. See Stromberg, 395 Md. at 127 n. 2, 909 A.2d 663 . As previously indicated, Exemption 4 of FOIA is identical to GP § 4-335.

The instant case involves a commercial lease between two private parties, not a government-generated document, and a redacted copy of such lease that was voluntarily submitted to the government. Nevertheless, the Whole Foods lease is a “public record” under GP § 4401(h), because it was ²²⁴ received by the government “in connection with the transaction of public business.” There is no Maryland case on point that analyzes the confidential commercial information exemption as applied to a private document that was voluntarily submitted to the government. 1. Appellees point us to Critical Mass and ask us to follow it. See 975 F.2d at 871 .

In Critical Mass, the United States Court of Appeals for the District of Columbia Circuit (“the D.C. Circuit”) established the prevailing test for evaluating FOIA Exemption 4 claims for private records voluntarily submitted to the government. Id. Critical Mass Energy Project, a nonprofit consumer organization, filed a FOIA request with the Nuclear Regulatory Commission (“NRC”), seeking copies of nuclear facility safety reports that were voluntarily submitted to the government on behalf of the Institute for Nuclear Power Operations (“INPO”), a non-profit corporation formed by operators of American nuclear power plants. Id. at 874 .

The safety reports contained “candid comments and evaluations from nuclear power plant employees,” and were distributed to “the NRC pursuant to the explicit understanding that they [we]re not to be disclosed to additional persons without INPO’s consent.” Id. Notwithstanding the FOIA provision requiring custodians to disclose any reasonably severable portion of the requested agency record, the D.C. Circuit held that Exemption 4 provided a blanket exemption for documents containing commercial or financial information that were voluntarily provided to a government agency and not customarily made public. Id. at 880 ; see also 5 U.S.C. § 552 (b). At the outset, the D.C. Circuit noted the legislative purpose of Exemption 4: [Ujnless persons having necessary information can be assured that it will remain confidential, they may decline to cooperate with officials, and the ability of the Government to make intelligent, well informed decisions will be impaired. ... [T]his exemption is intended to encourage individuals to ²²⁵ provide certain kinds of confidential information to the Government.

Critical Mass, 975 F.2d at 873 (citations and internal quotation marks omitted). The Court pointed out that, in situations where the information is provided to the government on a voluntary basis, the government has an interest “in ensuring its continued availability,” and if private parties are threatened with the risk of public disclosure of their confidential commercial information pursuant to a FOIA request, they “will, in all likelihood, refuse further cooperation” and cease providing such information to the government on a voluntary basis. Id. at 878 . To protect the government’s “continuing ability to secure such data on a cooperative basis,” the D.C. Circuit established a three-part test for a private document to be exempt from disclosure under Exemption 4: (1) the record must contain confidential commercial or financial information that was (2) voluntarily provided to the government and (3) not customarily released to the public by the private party.

Id. at 879 . The D.C. Circuit stated that this test was an objective one, with the agency carrying the burden of proving the provider’s custom of nondisclosure. Id. Applying the test, the D.C. Circuit agreed with the District Court’s conclusion that the INPO safety reports contained commercial information, that the reports were provided to the NRC on a voluntary basis, and that INPO did not customarily release such information to the public.

Id. at 880 . As a result, the D.C. Circuit held that the reports were “confidential within the meaning of Exemption 4, and therefore protected from disclosure” in their entirety. Id. Finally, the D.C. Circuit stated its belief “that the categorical rule we announce today will greatly simplify the application of Exemption 4 in a significant number of cases.” Id. at 877 .

There is only one reported opinion in Maryland applying the confidential commercial information exemption in GP § 4-335(2), and that opinion deals with the government’s own records, not private records voluntarily provided to the government. In Washington Post, the newspaper filed an MPIA request seeking telephone and scheduling records from the ²²⁶ Office of the Governor and the Governor (“the Governor”). 360 Md. at 526 , 759 A.2d 249 . The Governor denied the request, claiming that the documents were exempt under various provisions of the MPIA, including the confidential commercial information exemption. Id. at 528-29 , 759 A.2d 249 .

The Governor argued that the records “identified specific telephone calls which involved ‘economic development projects,’ or ‘sensitive and confidential negotiations over’ such economic development projects, or ‘confidential efforts to resolve a strike in Maryland,’ or ‘sensitive discussions relating to a major public transportation project,’ ” and thus were automatically exempt from disclosure. Id. at 548 , 759 A.2d 249 . The Court of Appeals disagreed, holding: Again, while records, memoranda, or notes of what was said during these conversations might amount to “confidential commercial information,” the fact that the Governor ... made a telephone call to a particular number is not itself, standing alone, “commercial” information. In order to so qualify, the [Governor] would need to explain, for in camera consideration by the court, why the record of each such allegedly sensitive telephone call, if turned over to the Post, would place the Post in the position of potentially jeopardizing government projects or negotiations at critical stages of development.

Id. at 549 , 759 A.2d 249 . The facts of Critical Mass are similar to the instant case, because both cases concern a request for private documents not created by or concerning the government, but provided to the government on a voluntary basis by a private entity that does not customarily disclose such documents to the public. See 975 F.2d at 880 . The instant case is distinguishable from Washington Post, because that case concerned an MPIA request for the governor’s schedule and records of telephone calls between the governor and private parties, which are quintessential government documents, while the request here concerns the voluntary delivery to the government of a lease between private parties, which is not a communication with ²²⁷ or a document involving the government itself. 6 See 360 Md. at 526 , 759 A.2d 249 .

The D.C. Circuit’s rationale behind the Critical Mass test also applies to the instant case, because the County, like the NRC, has an interest in “its continuing ability to secure such data on a cooperative basis,” and any risk of disclosure of such private commercial information would create a chilling effect where the private parties that currently volunteer such information to the government would, “in all likelihood, refuse further cooperation” to protect their business interests. 975 F.2d at 878-79 . Such rationale was not present in Washington Post, because the information sought in that case did not include any private records provided to the Governor on a voluntary basis, but rather the government’s own telephone and appointment records. See 360 Md. at 525 , 759 A.2d 249 . In addition, the Office of the Attorney General of Maryland has instructed the executive branch agencies to follow Critical Mass in complying with the MPIA.

In a manual of instruction, the Attorney General states: Commercial or financial information that is given to the government voluntarily should be considered confidential “if it is of the kind that the provider would not customarily release to the public.” Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C.Cir.1992), ce rt. denied, 507 U.S. 984 , 113 S.Ct. 1579 , 123 L.Ed.2d 147 (1993). In general, the submitter of such material should be consulted before it is disclosed to a requester. Office of the Attorney General, MPIA Manual 3-23 (14th ed. 2015); see also Action Committee for Transit, Inc. v. Town of Chevy Chase, 229 Md.App. 540 , 558 n. 20, 145 A.3d 640 (2016) (“Although the Manual may not rise to the dignity of a formal opinion by the Attorney General, it is nonetheless a useful, although not binding, resource for courts.”). ²²⁸ Finally, and most importantly, Calvert Tract satisfied the three elements of the Critical Mass test; namely, that the record must contain confidential commercial or financial information that was (1) voluntarily provided to the government and (2) not customarily released to the public by the private party. See 975 F.2d at 879 .

First, Calvert Tract submitted an affidavit stating that the Whole Foods lease was the product of extensive confidential, commercial negotiations and contained financial information related to the lease' agreement between Calvert Tract and Whole Foods. Second, Calvert Tract voluntarily submitted a redacted copy of the lease to the County. Third, Calvert Tract’s affidavit stated that the lease was provided to the County with the intention of it remaining private, and that Calvert Tract “does not customarily publicly disclose its commercial leases.” 7 Therefore, because the lease contains “financial or commercial information provided to the [County] on a voluntary basis,” which would “customarily not be released to the public by [Calvert Tract],” we hold that the lease is confidential commercial information exempt from disclosure under GP § 4-335(2). See id.

Appellant claims that, even if the Whole Foods lease falls under the confidential commercial information exemption, that exemption does not apply in the instant case, because the lease was already a matter of public record. Although the existence of the lease is a matter of public record, we conclude that the confidential commercial information exemption still applies. We shall explain. The MPIA’s mandatory exemptions to disclosure, including the confidential commercial information exemption, do not cover information that “is already well known to the public.” Gallagher v. Office of Attorney General, 141 Md.App. 664, 672 , 787 A.2d 777 (2001) (internal quotation marks omitted); see also CNA Fin.

Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C.Cir.1987) (“To the extent that any data requested under ²²⁹ FOIA are in the public domain, the submitter is unable to make any claim to confidentiality — a sine qua non of Exemption