Balt. Action Legal Team v. Off. of State's Atty.

Baltimore Action Legal Team, et al., v. Office of the State’s Attorney of Baltimore City, et al., No.1251, September Term 2020. Opinion by Wells, J. GENERAL PROVISIONS – MARYLAND PUBLIC INFORMATION ACT – PERSONNEL RECORDS Maryland Code Annotated, General Provisions (“GP”) Article, section 4-311, exempts from request for disclosure “a personnel record of an individual, including an application, performance rating, or scholastic achievement information.” GP § 4-311(a). The State’s Attorney’s Office for Baltimore City asserted that a list of 305 police officers with “integrity issues” (the “do not call” list) was exempt from disclosure under GP § 4-311. The Court of Special Appeals held that the personnel records exemption did not apply in this instance for two reasons.

First, the agency claiming the exemption must have supervising authority over the individual. Second, the agency must have authority over the records. Additionally, to qualify under the exemption, the records must relate to personnel issues, such as a performance rating, or, generally, an individual’s ability to perform a job. Here, the do not call list consists of the names of individual police officers whom the State’s Attorney’s Office concluded were untrustworthy, not the officers’ personnel records, as statutorily defined.

Further, the State’s Attorney’s Office did not have supervisory authority over the officers, nor did the State’s Attorney’s Office maintain the personnel files of the officers. In complying with a public information request, any such records, such as internal affairs reports, could have been shielded from disclosure while the list was provided. GENERAL PROVISIONS – MARYLAND PUBLIC INFORMATION ACT – ATTORNEY WORK PRODUCT The State’s Attorney’s Office for Baltimore City also asserted that the do not call list was exempt from disclosure as attorney work product. The attorney work-product doctrine protects from disclosure documents “produced in anticipation of litigation or in rendition of legal services.” E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 401 (1998).

The Court of Special Appeals held that the do not call list was created to aid the State’s Attorney’s Office in avoiding potentially compromising a criminal prosecution by relying primarily on a police officer with “integrity issues.” The creation and maintenance of such a list could not “fairly be said to have been prepared or obtained because of the prospect of litigation.” GENERAL PROVISIONS – MARYLAND PUBLIC INFORMATION ACT – FEE WAIVER Under GP §4-206(e) one making a request under the Maryland Public Information Act (“MPIA”) may ask the custodian of records to waive the fees for producing the records if the requestor asks for a waiver and the custodian of records considers the requestor’s ability to pay the fee “and other relevant factors.” Here, the State’s Attorney’s Office’s custodian of records denied appellant’s two requests for fee waivers under the MPIA for three reasons, as outlined in its motion for summary judgment. First, the custodian believed that appellant could pay the fees. Second, the State’s Attorney’s Office determined that the requested disclosures would not have aided the public’s understanding of that office’s operations and activities. Third, the fee waiver would not benefit the public because, in the State’s Attorney’s opinion, diverting office staff for the estimated 438 hours to copy the requested documents would remove them from their assigned task of prosecuting criminals.

This Court held that the denial of both requests was arbitrary and capricious. With regard to appellant’s first request, the “operations and activities” criteria the State’s Attorney’s Office cited in denying this request was derived from language in the federal Freedom of Information Act, which the Maryland Attorney General’s Office’s (“MAG”) cited in providing written guidance when assessing information requests. But, within the same advisement, the MAG also stated that an additional criterion was “whether disclosure of records will shed light on ‘a public controversy about official actions.’” Here, that clearly was a criterion as appellant’s request arose amid a public inquiry into police corruption in Baltimore City. The same criteria was relevant in the denial of appellant’s second fee waiver request.

While appellant’s ability to pay the fee requested was but one criterion, the State’s Attorney’s Office’s denial of the fee waiver based primarily on the belief that appellant could pay the fees, without more, was arbitrary and capricious. Circuit Court for Baltimore City Case No. 24-C-20-001271 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1251 September Term, 2020 ______________________________________ BALTIMORE ACTION LEGAL TEAM, ET AL. v. OFFICE OF THE STATE’S ATTORNEY OF BALTIMORE CITY, ET AL. ____________________________________ Berger, Wells, Ripken, JJ. ______________________________________ Opinion by Wells, J. ______________________________________ Filed: December 17, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-04-12 12:47-04:00 Suzanne C. Johnson, Clerk Between December 2019 and January 2020, appellant Baltimore Action Legal Team (“BALT”) made three requests under the Maryland Public Information Act (“MPIA”) to appellee, the Office of the State’s Attorney for Baltimore City (“SAO”). BALT specifically requested that the SAO provide: 1. A list of 305 Baltimore City (hereafter, “City”) Police Department officers with questionable integrity, and supporting information, that Baltimore State’s Attorney Marilyn Mosby stated she maintained; 2.

Records relating to any investigations of all City police officers that were closed in 2019 and any such investigations held open for over sixteen months; 3. Charges filed on January 30, 2020 regarding a specific City police officer and records relating to any open or closed investigations of that officer. BALT also asked the SAO to waive the costs required to reproduce the records sought in requests #2 and #3. The SAO denied the request for the list of 305 officers in its entirety and did not respond to the fee waiver requests accompanying the other two inquiries.

Instead, the SAO informed BALT that the estimated cost of production for the records in request #2 would be approximately $15,000 and would require over 438 hours of work, and the cost of production for the records in request #3 would be $3,000. On March 2, 2020, BALT and Open Justice Baltimore 1 filed a complaint in the Circuit Court for Baltimore City against the SAO and Marilyn Mosby, acting in her official 1 From the Open Justice Baltimore’s website: “Open Justice Baltimore (OJB) develops opensource data projects to increase transparency of the Baltimore Police Department and Baltimore City officials. OJB aims to work with community organizations, lawyers, journalists, educators, and researchers to create tools for the benefit of an educated capacity as State’s Attorney for Baltimore City. On August 14, 2020, the State’s Attorney filed a motion to dismiss, or alternatively for summary judgment.

BALT opposed and moved for summary judgment itself. The circuit court heard arguments on the clashing motions on October 26, 2020 and took the matter under advisement. In a written set of findings and an order dated December 4, 2020, the circuit court granted summary judgment in favor of the SAO and denied BALT’s similar motion. BALT noted this appeal, raising three questions for our review, which we have reproduced verbatim: 1.

Is a prosecutor’s “do not call” list a personnel record under the Public Information Act? 2. Does a prosecutor creating a list of officers who have general integrity exculpatory material against them, as a general practice of the office and not preemptive of any particular litigation, constitute attorney work-product? 3. Was Appellees’ denial of a fee waiver request arbitrary and capricious when Appellees denied a self-evident public interest, would not discuss the matter with Appellants, and showed a lack of neutrality in their duty of consideration? For the following reasons, we hold that the State’s Attorney’s motion for summary judgment was erroneously granted because the “do not call” list is not exempt from disclosure under the Maryland Public Information Act as a personnel record or as attorney work-product.

The list is also not exempt from disclosure, despite the SAO classifying it and empowered public.” https://apmphila.wedid.it/partners/2020-open-justice-baltimore. https://bit.ly/3EiyO8b. (Last visited: September 14, 2021.) 2 as Giglio2 or Brady3 material. Finally, we hold that the court erred in not finding that the SAO arbitrarily and capriciously denied both fee waiver requests. FACTUAL BACKGROUND On December 3, 2019, State’s Attorney Marilyn Mosby publicly informed members of the State Commission to Restore Trust in Policing4 that her office maintained a list of 305 officers with what she described as “credibility issues.” Apparently, these officers had, in some way, compromised their credibility such that Ms. Mosby determined the officers’ status “put them in jeopardy from testifying.” In its complaint, BALT noted that the existence of this “do not call” list was a major media topic given the public interest. 5 2 Giglio v. United States, 405 U.S. 150 (1972). 3 Brady v. Maryland, 373 U.S. 83 (1963). 4 The Commission to Restore Trust in Policing was created by the General Assembly during the 2018 session in the wake of the exposed corruption of the Baltimore City Police Department’s Gun Trace Task Force.

Eight of the nine-member Gun Trace Task Force were convicted of federal racketeering charges. The officers’ corruption included robbing city residents and suspected drug dealers while using police resources to further their criminal activities. The Commission’s charge was “to unravel the culture of corruption that allowed a task force of sworn police officers to run a criminal enterprise from within the Baltimore Police Department.” To that end, the General Assembly vested the Commission with broad authority, including the power to subpoena witnesses or documents and a duty to make its findings publicly known. Legislative authorization for the Commission ended on January 15, 2021.

Commission to Restore Trust in Policing Begins Work, Maryland Matters, October17,2018. (Last visited: September 14, 2021). https://www.marylandmatters.org/2018/10/17/commission-to-restore-trust-in-policing- begins-work/. See Chapter 753, Acts of 2018. 5 At the forum, Ms. Mosby informed the attendees that her office “created an internal sort of notification system. We notify the police department whenever there is a sustained allegation of credibility issues or even an allegation that isn’t sustained.

So we will summarize whatever the issue may be, and then we provide that list to the police 3 After this revelation, BALT made three requests under the MPIA for the SAO to provide more information about the “do not call list.” First, BALT sought a copy of the “do not call” list (or “the list”). Second, BALT sought information about investigations of City police officers that were closed during 2019, and any similar cases that had been open for over sixteen months. BALT requested a fee waiver. Finally, BALT requested records related to any criminal investigations into a specific police officer from the time he was hired by the City’s police department to the date of the request.

BALT, claiming that it was a tax-exempt, public interest organization, also requested a waiver of the costs the SAO asserted were necessary to compile the requested documents. BALT’s First MPIA Request On December 6, 2019, BALT submitted its first MPIA request to the SAO’s Chief of External Affairs seeking the “names, ranks, badge numbers, job assignments, and dates of hire of the individual officers” who were included on the list. Further, BALT requested “all relevant audio, video, dash cam, body warn cameras (sic), or other form of data” as well as any public documents that had been used to create the list. On December 20, 2019, BALT inquired about the status of the request and whether they could assist the SAO in locating the records.

The SAO did not respond. BALT contacted the SAO on January 7, 2020 and informed them that it did not understand why the SAO was non-compliant and department for them to determine what they’re going to do with their employee ... There are hundreds of officers on that list.” See Tim Prudente, Baltimore State’s Attorney Says She Has List of ‘Hundreds of Officers’ with Alleged Credibility Issues, Balt. Sun (Oct. 18, 2019), https://www.baltimoresun.com/news/crime/bs-md-ci-cr-mosby-lists-hundreds-of- officers-20191018-cakqslar5rgujp2sc6knwsklpm-story.html. 4 that it was unaware if the SAO had requested an extension.

BALT also asked about internal appeal procedures. On January 9, 2020, Deputy State’s Attorney Valda Ricks responded on behalf of the SAO by way of a letter denying BALT’s request. In the letter, the SAO claimed that the requested material was exempt from disclosure because it fell under the “personnel record” exemption of the Maryland Code, General Provisions (“GP”) Article, § 4-311(a). The SAO explained that this mandatory exemption applied because these records related to the “hiring, discipline, promotion, dismissal, or any other matter involving [the officer’s] status as an employee.” The SAO claimed that the information sought was privileged as both attorney work-product and as part of the SAO’s deliberative process.

Ms. Ricks also stated that the records could not be disclosed because disclosure would interfere with a “valid and proper law enforcement proceeding” under GP § 4-351(b)(1).6 6 GP § 4-351 states: (a) Subject to subsection (b) of this section, a custodian may deny inspection of: (1) records of investigations conducted by the Attorney General, a State’s Attorney, a municipal or county attorney, a police department, or a sheriff; (2) an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or (3) records that contain intelligence information or security procedures of the Attorney General, a State’s Attorney, a municipal or county attorney, a police department, a State or local correctional facility, or a sheriff. (b) A custodian may deny inspection by a person in interest only to the extent that the inspection would: (1) interfere with a valid and proper law enforcement proceeding; (2) deprive another person of a right to a fair trial or an impartial adjudication; (3) constitute an unwarranted invasion of personal privacy; (4) disclose the identity of a confidential source; (5) disclose an investigative technique or procedure; (6) prejudice an investigation; or 5 BALT responded to the denial letter with a letter of its own, stating that the SAO maintained more than just personnel records and that “a blanket claim of interference with law enforcement proceedings” was not permissible under the MPIA. BALT also asked about the possible severing of any information the SAO deemed privileged and “whether all three-hundred and five officers were under active investigation.” The SAO did not respond to BALT’s letter. BALT’s Second MPIA Request On January 14, 2020, BALT filed a detailed second MPIA request seeking, essentially, the full investigatory files “into alleged criminal activity of officers of the Baltimore Police Department.” Specifically, BALT requested all such files closed during the 2019 calendar year and any that had been open for more than sixteen months.

Further, BALT requested a fee waiver, citing its status as a non-profit organization and that this information “was a matter of public concern and public safety.”7 Having not received a response from the SAO after the prescribed ten-day response time found in GP § 4-203, BALT emailed the SAO on January 30, 2020 inquiring about (7) endanger the life or physical safety of an individual. In 2021, this section was amended with the passage of the Maryland Police Accountability Act of 2021 which permits the inspection of records relating to police misconduct. See Maryland Code Criminal Procedure Article § 1-203. 7 Interestingly, the Baltimore Sun published several articles in 2019 and 2020 that discussed the importance of sharing the “do not call” list. See Justin Fenton, “Public Defenders Want Prosecutor’s List of Police Officers with Credibility Issues.

Prosecutors Resist,” Balt. Sun (Feb. 11, 2020); Tim Prudente, Baltimore State’s Attorney Says She Has List of ‘Hundreds of Officers’ with Alleged Credibility Issues, Balt. Sun (Oct. 18, 2019). 6 the status of its second request and whether assistance was needed. Ms. Ricks responded on behalf of the SAO on February 4, 2020.

She explained that responding to the request would take approximately “438 hours of clerical and attorney time to locate, prepare, and reproduce the records. This also included required work-product redaction of statutorily privileged communications.” Ms. Ricks estimated the total cost to be about $15,330.00 and attached a fee schedule. The fee schedule included a fee of 75.00/hour for attorneys and $15.00/hour for clerks. The SAO requested that BALT provide payment before it would begin processing the request.

BALT immediately emailed the SAO asking whether the SAO was going to redact portions of the submitted documents and if so, how long the production of the documents would take. BALT also wanted to confirm that the SAO was denying BALT’s requested fee waiver. The SAO did not respond to this email nor did they respond to BALT’s follow- up email sent on February 12, 2020. BALT’s Third MPIA Request BALT submitted a third MPIA request to the SAO on January 31, 2020.

Like the first request, this one sought information concerning all investigations “directed at potential or alleged criminal conduct” of one named City police officer that it believed the SAO had maintained since March 2017, including the charges that were filed against that officer in January 2020. Further, BALT requested “all open and closed investigations of officer misconduct” regarding that officer since the beginning of his employment with City police 7 department. BALT also relied on GP § 4-206(e)8 to request a fee waiver based on BALT’s status as a public interest, tax-exempt organization. On February 11, 2020, Ms. Ricks denied BALT’s third MPIA request citing GP § 4-351(a)(2) and GP § 4-351(b)(1)9, positing that disclosing those records “would interfere with a valid and proper law enforcement proceeding.” Regarding other SAO investigations of City police officers, Ricks informed BALT that a preliminary search revealed nothing, but that a more thorough search would require about forty hours of time and would cost about $3,000.

The SAO did not address BALT’s fee waiver in its request. The Circuit Court Proceedings In each of its response letters, the SAO suggested that a hearing before the Circuit Court for Baltimore City would be an appropriate forum for BALT to challenge the SAO’s rejection of BALT’s requests. Acting on the SAO’s suggestion, BALT and Open Justice Baltimore10 filed suit in the circuit court on March 2, 2020. In the three count suit, BALT and Open Justice Baltimore alleged that the SAO had failed to reasonably comply with 8 GP § 4-206(e) states: The official custodian may waive a fee under this section if: (1) the applicant asks for a waiver; and (2)(i) the applicant is indigent and files an affidavit of indigency; or (ii) after consideration of the ability of the applicant to pay the fee and other relevant factors, the official custodian determines that the waiver would be in the public interest. 9 These provisions provide, in relevant part, that “a custodian may deny inspection of . . . an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose . . . only to the extent that the inspection would . . . interfere with a valid and proper law enforcement proceeding.” Md. Code Ann. GP § 4-351. 10 While both parties filed the complaint, BALT is the only appellant to this appeal. 8 three MPIA requests relying on “inapplicable and fictious (sic) exemptions and privileges,” not assisting in the request, and imposing unreasonable fees and arbitrarily denying BALT’s request for a fee waiver.

Plaintiffs demanded the court order the SAO to comply with the MPIA requests and pay “nominal damages” and court costs. The SAO moved to dismiss the complaint or in the alternative for summary judgment. In its accompanying memorandum, the SAO offered an affidavit from Ms. Ricks which addressed the SAO’s assessments of BALT’s fee waiver requests. In her affidavit, Ms. Ricks testified that disclosing the records would not contribute to the public’s understanding of how the SAO operates, nor would disclosure be in the public interest.

Additionally, the State noted that fulfilling BALT’s requests would detract from the SAO’s primary job function—“the pursuit of justice and the prosecution of crime in Baltimore City.” Finally, the SAO explained that BALT bore the burden of establishing that disclosure was in the public interest. After the October 26, 2020 hearing, State’s Attorney Mosby emailed the presiding judge and opposing counsel, stating that she felt that her office was obliged to withhold the requested information because “the Court of Appeals has ruled that police records relating to investigations of misconduct by police officers are personnel records under the MPIA, and therefore cannot be disclosed.” She further explained: This legal prohibition is the only reason we have not disclosed this information. In sum, I believe in transparency and have no philosophical objection to releasing information on police misconduct. It is simply the case that my office has been instructed that this would be illegal, and we are duty bound to obey the law.

In the absence of such a legal prohibition, we would have been pleased to produce the requested records. 9 By way of a memorandum dated December 4, 2020, the circuit court detailed its findings of facts and conclusions of law. The court, relying on the Court of Appeals’ holding in Montgomery Cnty. Maryland v. Shropshire, 420 Md. 362, 383 (2011), first, concluded that “internal affairs records of police officers constitute ‘personnel records’ within the meaning of the [M]PIA.” The court reasoned that, [t]he list of officers and information used to compile the list sought in Plaintiffs’ first request constitutes confidential internal affairs records protected by the mandatory exceptions provisions of GP § 4-311. The fact that the list of officers was compiled from confidential personnel information makes the list confidential.

Second, even though some of the list may have been created from non-personnel records, the court found that it need not address that issue because the SAO asserted that the list and related materials had been created in anticipation of litigation. In the court’s view, “GP § 4-344 allows a custodian to deny inspection of any part of an [interagency] or interagency letter or memorandum.” And because, the court reasoned, the SAO’s primary function is prosecuting cases on behalf of the State, it [was] reasonable to conclude that the list of officers was compiled in anticipation of litigation.” Further, the court found the list was useful in permitting the SAO to fulfill its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. U.S., 405 U.S. 150 (1972). Third, the court concluded that the “public interest exemption,” found in GP § 4-343, meant that the SAO properly denied disclosure of all open investigations involving the named police officer. “Forcing the SAO to disclose an investigation of a criminal defendant just prior to trial could prejudice the State and the defendant and interfere with the defendant’s ability to obtain a fair trial.” 10 Finally, the circuit court assessed BALT’s fee waiver request. Reviewing the SAO’s denial of the waiver request through the lens of this Court’s discussion of Freedom of Information Act (“FOIA”) requests analogized to fee waiver cases, see Action Committee for Transit, Inc. v. Town of Chevy Chase, 229 Md. App. 540 (2016), the court assessed two factors: (1) whether the request was in the public interest,11 and (2) whether the requestor had the ability to pay the fee.

Given BALT’s failure to produce this evidence or prove that the SAO’s denial of the waiver was arbitrary or capricious, the court stated it was unable to conclude from the record that the SAO’s denial of the fee waiver was arbitrary and capricious. BALT filed a timely appeal. We will include other pertinent information later in the opinion. STANDARD OF REVIEW A motion for summary judgment may be filed by any party “on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” Md. Rule 2-501(a).

The non-moving party “must identify with particularity each material fact in genuine dispute and provide support for its contentions.” Educ. Testing Serv. v. Hildebrant, 399 Md. 128, 139 (2007). The trial court may grant summary judgment in favor of the moving party “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered 11 In this context, “public interest” means whether the FOIA requestor had the ability and intention to effectively convey or disseminate the requested information to the public. Cause of Action v. FTC, 799 F.3d 1108, 1117 (D.C. Cir. 2015). 11 is entitled to judgment as a matter of law.” Schneider Elec.

Bldgs. Critical Sys., Inc. v. W. Surety Co., 454 Md. 698, 704-05 (2017) (quoting Md. Rule 2-501(f)). The issue of whether the trial court’s grant of a summary judgment was proper is a question of law and is reviewed de novo. Schneider, 454 Md. at 705 (quoting Tyler v. City of Coll.

Park, 415 Md. 475, 498 (2010)); Gurbani v. Johns Hopkins Health Sys. Corp., 237 Md. App. 261, 289 (2018); Hildebrant, 399 Md. at 139 . On appeal, this Court independently reviews “the same information from the record and determines the same issues of law as the trial court.” Miller v. Bay City Prop. Owners Ass’n, Inc., 393 Md. 620, 632 (2006).

Specifically, regarding motions for summary judgment, we “independently review the record to determine whether the parties properly generated a dispute of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law.” Livesay v. Balt. Cnty., 348 Md. 1 , 10 (2004); Gurbani, 237 Md. App. at 289 (citing La Belle Epoque, LLC v. Old Europe Antique Manor, LLC, 406 Md. 194, 209 (2008)). Where the record indicates “there was no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and it is shown that the movant is entitled to judgment, the entry of summary judgment is proper.” Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 (1974). Furthermore, “it is well-established in Maryland that an appellate court ordinarily will consider only the grounds relied upon by the trial court in granting summary judgment.” Id.; see also Lovelace v. Anderson, 366 Md. 690, 696 (2001); PaineWebber v. East, 363 Md. 408, 422 (2001).

On review of an MPIA dispute, the “facts necessary to the determination of a motion for summary judgment may be placed before the court by pleadings, affidavit, deposition, 12 answers to interrogatories, admission of facts, stipulations and concessions.” Action Comm. For Transit, Inc. v. Town of Chevy Chase, 229 Md. App. 540, 545 (2016) (quoting Prince George’s Cnty. v. The Washington Post Co., 149 Md. App. 289, 304 (2003)). DISCUSSION The MPIA has created a “general presumption in favor of disclosure of government or public documents.” Kirwan v. The Diamondback, 352 Md. 74, 80 (1998). “The provisions of the Public Information Act reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government.” Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 73 (1998) (quoting A.S. Abell Publ’g Co. v. Mezzanote, 297 Md. 26, 32 (1983)); see also GP § 4-103(a) (“All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.”). The Act, however, “highlights that its provisions shall be construed in favor of permitting inspection of a public record, with the least cost and least delay to the person or governmental unit that requests the inspection” but only to the extent there is no “unwarranted invasion of the privacy of a person in interest.” GP § 4-103(b).

Furthermore, the Court of Appeals has explained that the act “must be liberally constructed” to ensure that the Act’s “broad remedial purpose” is met. Kirwan, 352 Md. at 81 (quoting Mezzanote, 297 Md. at 32 ). BALT raises two narrow issues in this appeal, in addition to the fee waiver issue. The first is whether the “do not call” list may be classified as a personnel record, and thus exempt from disclosure under GP § 4-311.

The second is whether the “do not call” list 13 qualifies as attorney work-product, making it exempt from disclosure under the MPIA. We examine each of these issues in turn. I. The “Do Not Call” List Is Not Subject to the Personnel Records Exemption or the Investigatory Records Exemption a. The Parties’ Contentions BALT contends that the SAO cannot invoke the personnel records exemption found in GP § 4-311 to avoid disclosure of the “do not call” list, because the list does not contain any employment information or records from another agency.

BALT maintains the list is not an employment list, since the SAO created the list, not the City police department, and the SAO does not maintain supervisory authority over the officers named in the list. BALT further contends that if the requested supporting documents—documents that may inform why a particular officer is on the “do not call” list—are in fact exempt, then disclosure may be severed so that the list of officer names is produced without the supporting documents. The SAO argues that the list is exempt from disclosure because it was created using the officers’ personnel records. The SAO contends that where privacy issues are concerned, the MPIA’s scope should be read narrowly.

The list was developed using information from confidential internal affairs records, which are protected under the mandatory exemptions in the MPIA, and so the circuit court’s judgment should be affirmed. b. Analysis The “do not call” list contains the names of 305 City police officers deemed to have “questionable integrity.” BALT argues that the list represents over ten percent of the Baltimore Police Department’s officers and that keeping the list secret only breeds the 14 community’s further distrust of the police. The SAO has sought to prevent disclosure of this list by invoking both the personnel records exemption and the investigatory records exemption of the MPIA. 1. Personnel Records Exemption The MPIA contains a mandatory exemption that prohibits the disclosure “of a personnel record of an individual, including an application, performance rating, or scholastic achievement information.” GP § 4-311(a).

The Court of Appeals explained in Kirwan that these categories were unlikely to be exhaustive and instead represent a “legislative intent that ‘personnel records’ mean those documents that directly pertain to employment and an employee’s ability to perform a job.” Kirwan, 352 Md. at 84 . Further, because the MPIA’s overarching aim is to “allow access to public records,” the General Assembly likely did not intend “that any record identifying an employee would be exempt from disclosure as a personnel record[,]” but rather that it “likely intended that the term ‘personnel records’ would retain its common sense meaning.” Id. The personnel records exemption aims “to preserve the privacy of personal information about a public employee that is accumulated during [their] employment.” Prince George’s Cnty., 149 Md. App. at 323 (quoting 78 Op. Att’y Gen. 291, 293 (1993)).

In Prince George’s County, the Washington Post requested records from the Prince George’s Police Department’s Human Relations Commission. 149 Md. App. at 299–300. Prince George’s County argued that the records were exempt from disclosure as both personnel records and investigatory records. The Post responded that they were requesting only documents from closed cases that had been the subject of public hearings; therefore, 15 neither exemption applied. Id. at 328 .

This Court held that these documents were not exempt from disclosure because “the documents at issue, which relate to the actions of an individual, were produced by an agency with no supervisory authority over the individual.” Id. at 331 . Here, the trial court concluded that BALT’s request for the list of the officers and the associated information was a request for confidential internal affairs records. So, the trial court concluded, “these records [are] protected by the mandatory exception provisions of GP § 4-311.” We disagree. An agency cannot claim a personnel records exemption under the MPIA unless (1) the agency has supervisory authority both over the records and the person who is the subject of the records, Prince George’s Cnty., 149 Md. App. at 331 ; and (2) the records contain what would be considered “personnel issues,” such as a performance rating, or, generally, “an employee’s ability to perform a job.” Kirwan, 352 Md. 83 -84.

The record suggests that the SAO has generated the list, rather than the City’s police department. We understand from the State’s Attorney’s motion for summary judgment that the list was created from City police department’s Internal Affairs documents. Critically though, the internal affairs documentation—whatever an officer did to call into question their credibility—is not part of the list. Only the names of the officers the SAO has deemed compromised appear on the list.

Consequently, based on our review of the record, this list does not contain the personnel record of an individual, such as “an application, performance rating, or scholastic achievement information,” or other information directly related to an officer’s job performance. GP § 4-311(a). Instead, this list contains the names 16 of the officers that the SAO has designated as having “questionable integrity.” Consequently, the list is not a personnel record as defined in GP § 4-311(a), although we realize that it might well have been created utilizing personnel records. Supporting our conclusion is the Court of Appeals’ rationale in Kirwan.

There, the Court concluded that the legislature likely intended to ensure that personnel records referred to those records that “directly pertain[ed] to employment and an employee’s ability to perform a job.” 352 Md. at 84 . The legislature did not intend that “any record identifying an employee would be exempt from disclosure as a personnel record.” Id.; see also Governor v. Washington Post, 360 Md. 520, 548 (2000) (explaining that “the fact that the Governor or a staff member telephoned or met with an identified individual would not be a ‘personnel record’ under any ‘commonly understood meaning of the term’”). Simply because an officer’s name appears on a list generated by the SAO does not mean that it is now a personnel record, based on the “commonly understood meaning of the term.” Kirwan, 352 Md. 83 -88. It seems to us that the SAO uses the list as a tool to ensure that prosecutions are not compromised by the testimony of officers whose veracity is questioned.

Critically, while the list does “relate to the actions of an individual,” it was created by “an agency with no supervisory authority over the individual.” Prince George’s County, 149 Md. App. at 331 .12 We think this an important distinction. We could easily envision 12 During the 2021 session, the General Assembly overrode Governor Hogan’s veto and enacted Senate Bill 178 (“Anton’s Law”), 2021 Md. Laws, ch. 62. This bill was part of a package of police reform legislation passed during the 2021 session. The new law, scheduled to go into effect on October 1, 2021, removes investigative records into police 17 a comparable “do not call” list created and maintained by the City’s police department, but that is not the case here.

The SAO created this list. That office has no supervisory authority over individual police officers whose names appear on the list. That said, the supporting documentation that BALT originally requested with the “do not call” list may fall under the personnel records exception because the disclosure of those records seemingly would encompass records maintained by the City police department detailing the investigation involving individual officers. As we discuss below with the regard to internal affairs records, that documentation may be severed from disclosure of the “do not call” list names. misconduct from the ambit of GP § 4-311 and instead classifies them as investigatory records subject to discretionary withholding under GP § 4-351.

This means that a custodian may deny inspection if disclosure would be “contrary to the public interest.” The one exception to the new law is that records of “technical infractions” are still considered personnel records subject to mandatory withholding under GP § 4-311. A “technical infraction” is one that is a “minor rule violation” solely related to enforcement of administrative rules; it does not involve an interaction between the officer and a member of the public, does not relate to investigative, enforcement, training, supervision, or reporting responsibilities, and “is not otherwise a matter of public concern.” At oral argument, the Assistant Attorney General representing the SAO seemed to suggest that in light of the new law, if BALT were to refile its MPIA request on or after October 1, 2021, the request might receive a more favorable review. Whether this is true or not remains to be seen. It seems apparent that under the new law, the SAO could no longer claim a personnel records exemption for some or all of the items BALT has requested.

But as we have analyzed the statute and the relevant appellate authority, the SAO could not have legitimately made such a claim anyway about the “do not call” list. Further, under the new law the SAO could claim that disclosure would not be in the public interest. Such a position would be contrary to what the circuit court found here below, and what we hold, as discussed, later in this opinion. 18 2. Use of Internal Affairs Records The SAO also argues that the “do not call” list cannot be disclosed because it was created using confidential internal affairs records which are considered personnel records.

See Baltimore City Police Dep’t v.