Balt. Police Dept. v. Open Justice Balt.

Baltimore Police Department, et al. v. Open Justice Baltimore, No. 20, September Term, 2022. Opinion by Biran, J. STATUTORY INTERPRETATION – MARYLAND PUBLIC INFORMATION ACT – WAIVER OF FEES – The Maryland Public Information Act (the “MPIA”) permits an agency records custodian to charge a reasonable fee for compliance with a request to disclose public records. The MPIA also permits the custodian to waive fees, in whole or in part, if the custodian determines that a waiver would be in the public interest. Md. Code Ann., General Provisions (“GP”) § 4-206(e)(2)(ii).

The Supreme Court of Maryland held that the MPIA vests custodians with discretion to determine which factors (in addition to an applicant’s ability to pay the fee and whether the public would benefit from disclosure of the requested records) are relevant to the determination of whether a fee waiver would be in the public interest. Custodians also have discretion to determine whether the waiver would be in the public interest after considering all relevant factors, which may include the monetary cost of compliance to the agency as well as the burden on agency personnel. If a custodian concludes that a waiver in whole or in part of a fee would be in the public interest, the custodian does not have discretion to deny such a waiver. APPELLATE REVIEW – DENIAL OF FEE WAIVER UNDER THE MPIA – The Supreme Court held that an agency custodian’s denial of a request for a fee waiver is reviewed under the arbitrary and capricious standard.

MPIA – DENIAL OF FEE WAIVER – ARBITRARY AND CAPRICIOUS REVIEW – The Supreme Court held that Petitioner, Baltimore Police Department (“BPD”), arbitrarily and capriciously denied the request for a fee waiver made by Respondent, Open Justice Baltimore (“OJB”). BPD’s custodian misapplied certain factors in its analysis and failed to consider other factors: whether disclosure of the records in question would shed light on a public controversy; and whether a complete denial of a fee waiver would exacerbate the controversy. APPELLATE REVIEW – ARBITRARY AND CAPRICIOUS AGENCY ACTION – REMEDY – The Supreme Court held that the proper remedy in light of the custodian’s errors in making the public interest determination under GP § 4-206(e)(2)(ii) was a remand to BPD for reconsideration of that determination, properly applying all relevant factors. Circuit Court for Baltimore City Case No. 24-C-20-001269 Argued: January 6, 2023 IN THE SUPREME COURT OF MARYLAND* No. 20 September Term, 2022 BALTIMORE POLICE DEPARTMENT, ET AL. v. OPEN JUSTICE BALTIMORE Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ.

Opinion by Biran, J. Filed: August 31, 2023 * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional Pursuant to the Maryland Uniform Electronic Legal Materials amendment changing the name of the Court of Act (§§ 10-1601 et seq. of the State Government Article) this Appeals of Maryland to the Supreme Court of document is authentic. Maryland. The name change took effect on 2023-08-31 12:53-04:00 December 14, 2022. Gregory Hilton, Clerk For more than 40 years, the Maryland Public Information Act (the “MPIA” or the “Act”) has allowed records custodians, in certain circumstances, to grant requests for waivers of fees to search for, prepare, and produce records sought under the Act.

The current version of the MPIA’s fee waiver provision states, in part, that an official custodian may grant a requested fee waiver if, “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.” Md. Code Ann., General Provisions (“GP”) § 4-206(e) (2019 Repl. Vol.). This is the first case in which this Court has considered a challenge to a custodian’s denial of a request for such a fee waiver. Respondent, Open Justice Baltimore (“OJB”), is an organization interested in investigating and publicizing reports of police misconduct.

In late 2019 and early 2020, OJB filed several requests under the MPIA with the Baltimore Police Department (“BPD”), seeking records relating to citizen and administrative complaints of police misconduct, as well as department-initiated investigations of police misconduct by BPD’s Special Investigation Response Team (“SIRT”) and of other incidents involving uses of force. This appeal concerns OJB’s requests for production of certain closed files relating to SIRT investigations and other use of force investigations. BPD provided an estimate to OJB that quoted a cost of more than $245,000 to produce 2,337 such files. OJB asked BPD to waive the fees to produce them.

OJB asserted that a fee waiver would be in the public interest because the disclosure of the records would promote transparency and increase trust between Baltimore citizens and BPD. OJB also told BPD that it was “a program of a non- profit organization” and had been “deemed a public interest organization, classified tax- exempt, not generating any beneficiary income.” OJB refused to narrow its request to lessen the costs of compliance and insisted that BPD waive the entire fee. BPD had questions about how OJB intended to disseminate the requested records to the public and whether the public would be able to understand the records with the redactions that would be necessary. These and other concerns led BPD to conclude that a fee waiver would not be in the public interest.

BPD denied the fee waiver request in its entirety. However, before doing so, BPD did not share its specific concerns with OJB and give OJB the opportunity to attempt to address them. OJB sought judicial review of BPD’s denial of the requested fee waiver in the Circuit Court for Baltimore City. Seeking summary judgment, BPD and then-BPD Police Commissioner Michael Harrison (collectively, “BPD”)1 submitted an affidavit from the official who decided to deny the fee waiver.

That official attested that, after careful consideration of OJB’s request, he had determined that disclosure of the investigation records would not aid the public in understanding what BPD was doing to address its problems concerning police misconduct. Among other things, he concluded that, given the resources already publicly available that explain BPD’s efforts to improve its practices under a federally monitored consent decree, requiring Baltimore City taxpayers to pay the 1 OJB initially named BPD, the City of Baltimore, and Commissioner Harrison (in his official capacity) as defendants in the Complaint. The parties subsequently filed a stipulation dismissing the City of Baltimore as a party in the case. BPD and Commissioner Harrison jointly filed the petition for certiorari that we granted in this case.

Commissioner Harrison resigned his position as Commissioner of BPD in June 2023. 2 costs associated with providing the closed investigation files to OJB would not be in the public interest. The circuit court upheld the denial of the fee waiver, determining that BPD’s decision was not arbitrary or capricious. OJB appealed to the Appellate Court of Maryland (at the time, called the Court of Special Appeals of Maryland),2 which reversed the circuit court’s ruling. The Appellate Court concluded that BPD failed to meaningfully consider whether disclosure of the closed investigation files would aid the public’s understanding of how BPD was addressing allegations of police misconduct.

Thus, the Appellate Court determined, BPD’s denial of the requested fee waiver was arbitrary and capricious. BPD sought further review of the Appellate Court’s judgment in this Court. The MPIA vests official custodians with broad discretion in determining whether a requested fee waiver is in the public interest. Custodians have discretion to decide which factors in a particular case are relevant to the public interest determination (in addition to the applicant’s ability to pay the fee).

Custodians also have discretion to decide whether the application of all relevant factors demonstrates that a fee waiver would be in the public interest in a particular case. However, while an official custodian’s discretion in these matters is broad, it is not boundless. As we explain below, in this case BPD’s fee waiver denial was arbitrary and capricious because BPD failed to meaningfully consider all relevant factors in deciding whether to grant OJB’s requested fee waiver. In particular, 2 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland.

The name change took effect on December 14, 2022. 3 BPD failed to meaningfully consider: (1) whether the fee waiver would further the public interest by shedding light on the public controversy concerning BPD’s failure to properly investigate officer misconduct; and (2) whether completely denying the fee waiver would exacerbate that public controversy by contributing to the appearance of a lack of transparency. We will order a remand to BPD to reconsider OJB’s requested fee waiver in light of these and all other relevant factors, which include OJB’s ability to pay the quoted fees and the cost to, and burden on, BPD to comply with OJB’s requests. I Background We first provide a brief background of the MPIA and its fee waiver provision, and then summarize the facts and procedural history of this case. A. The MPIA Permits Official Custodians to Charge and Waive Fees.

The MPIA states that “[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” GP § 4-103(a). Consistent with this broad remedial purpose, the General Assembly requires that we construe the MPIA “in favor of allowing inspection of a public record, with the least cost and least delay to the person or governmental unit that requests the inspection.” Id. § 4-103(b). The General Assembly had to balance the statute’s broad remedial purpose against the practical and logistical constraints on official custodians3 to comply with MPIA 3 “‘Official custodian’ means an officer or employee of the State or of a political subdivision who is responsible for keeping a public record, whether or not the officer or 4 requests from multiple applicants,4 some of which might call for production of voluminous records. Producing a record responsive to an applicant’s MPIA request can require: a search for the record; scanning and/or photocopying it; reviewing it for items that must be redacted, or may be redacted, in light of statutory provisions;5 making any such necessary redactions; and delivering the record to the applicant.

Thus, if the number of pages of responsive records is in the thousands (or tens or hundreds of thousands), and if the records sought require significant redactions before disclosure, it likely will take many hours of work – sometimes adding up to weeks or months of work – to complete the production. The General Assembly chose to balance these competing interests by permitting official custodians to charge applicants reasonable fees connected to the time and labor of compiling and producing the requested records. GP § 4-206(b). A “[r]easonable fee” is defined as “a fee bearing a reasonable relationship to the recovery of actual costs incurred by a governmental unit.” Id. § 4-206(a)(3).

The governmental unit may not charge an employee has physical custody and control of the public record.” Md. Code Ann., General Provisions (“GP”) § 4-101(f) (2019 Repl. Vol., 2022 Supp.). All further references to the General Provisions Article in the text and footnotes of this opinion, with the exception of citations to § 4-206, will be to the version contained in the 2022 Supplement to the 2019 Replacement Volume, unless otherwise indicated. 4 An “[a]pplicant” is “a person or governmental unit that asks to inspect a public record.” GP § 4-101(b). 5 See, e.g., GP § 4-351(d)(1) (with respect to records relating to an administrative or criminal investigation of misconduct by a police officer, requiring redaction of medical information of a “person of interest” (i.e., a person “that is the subject of a public record,” id. § 4-101(g)(1)), personal contact information of the person of interest or a witness, and information relating to the family of the person of interest). 5 applicant for the first two hours “that are needed to search for a public record and prepare it for inspection.” Id. § 4-206(c). 1. The Fee Waiver Provision When the General Assembly first enacted the MPIA in 1970, it prescribed the following for fees associated with record requests: (a) In all cases in which a person has the right to inspect any public records he may request that he be furnished copies, printouts or photographs for a reasonable fee to be set by the official custodian.

Where fees for certified copies or other copies, printouts or photographs of such record are specifically prescribed by law, such specific fees shall apply. (b) If the custodian does not have the facilities for making copies, printouts or photographs of records which the applicant has the right to inspect, then the applicant shall be granted access to the records for the purpose of making copies, printouts or photographs. The copies, printouts or photographs shall be made while the records are in the possession, custody and control of the custodian thereof and shall be subject to the supervision of such custodian. When practical, they shall be made in the place where the records are kept, but if it is impractical to do so, the custodian may allow arrangements to be made for this purpose.

If other facilities are necessary the cost of providing them shall be paid by the person desiring a copy, printout or photograph of the records. The official custodian may establish a reasonable schedule of times for making copies, printouts or photographs and may charge a reasonable fee for the services rendered by him or his deputy in supervising the copying, printing out or photographing as he may charge for furnishing copies under this section. 1970 Md. Laws 1974 (ch. 698) (codified as Article 76A, § 4, of the Annotated Code of Maryland). Thus, the MPIA originally only permitted a custodian to charge reasonable fees for providing copies of requested records and for supervising an applicant in their copying of the requested records. 6 In 1982, the General Assembly added three new provisions to the MPIA related to fees. 1982 Md. Laws 2958 (ch. 431). Section 4(c) of Article 76A expressly broadened the types of fees a record custodian could charge for fulfilling an MPIA request: “Except as provided in subsection (d) of this section, the official custodian may charge reasonable fees for the search and preparation of records for inspection and copying.” Md. Code Ann., Art. 76A, § 4(c) (1957, 1980 Repl.

Vol., 1983 Supp.). New section 4(d) stated that an “official custodian may not charge any search or preparation fee for the first 2 hours of official or employee time that is needed to respond to a request for information.” Id. § 4(d). Finally, the General Assembly added a fee waiver provision to the MPIA as new section 4(e): “The official custodian may waive any cost or fee charged under this subtitle if a waiver is requested and the official custodian determines that a waiver would be in the public interest. The official custodian shall consider, among other relevant factors, the ability of the requester to pay the cost or fee.” Id. § 4(e).

Two years after this amendment, the MPIA was recodified as part of Subtitle 6, Title 10, of the new State Government Article. See 1984 Md. Laws 1366 -67 (ch. 284). The fee waiver provision included new language derived (according to the Revisor’s Note) without substantive change from section 4(e) of Article 76A. It provided: Waiver. – The official custodian may waive a fee under this section if: (1) The applicant asks for a waiver; and (2) 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.

Id.; Md. Code Ann., State Gov’t § 10-621(d) (1984). 7 In 2014, the MPIA was recodified as Title 4 of the General Provisions Article. See 2014 Md. Laws 407 -09 (ch. 94). The fee waiver provision was recodified as § 4-206(e) without any change in language. See id. at 493-94.

In 2015, the General Assembly amended § 4-206(e), adding a provision that allows an official custodian to grant a request for a fee waiver where an applicant who asks for a waiver “is indigent and files an affidavit of indigency.” GP § 4-206(e)(2)(i); see 2015 Md. Laws 619 (ch. 135) & 647 (ch. 136). Since 2015, there have been no changes to the language of § 4-206(e). 2. Dispute Resolution Opportunities Regarding Fees Under the MPIA As part of the 2015 amendments to the MPIA, the General Assembly created a State Public Information Act Compliance Board (the “Board”). See GP § 4-1A-01 (2019 Repl.

Vol.); 2015 Md. Laws 604 (ch. 135) & 632 (ch. 136). At the same time, the General Assembly created an Office of the Public Access Ombudsman (the “Ombudsman”). GP § 4-1B-02 (2019 Repl. Vol.); 2015 Md. Laws 613 (ch. 135) & 640 (ch. 136).

One of the Ombudsman’s duties is to make “reasonable attempts to resolve disputes between applicants and custodians relating to,” among other things, “a request for or denial of a fee waiver under § 4-206(e)[.]” GP § 4-1B-04(a)(6). The MPIA does not provide the Board with authority to consider complaints about fee waiver denials. See generally GP § 4-1A-4. However, one of the Board’s duties is to “receive, review, and … resolve complaints filed … from any applicant or the applicant’s designated representative alleging that a custodian … charged an unreasonable fee under § 4-206 of this title of more than $350[.]” Id. § 4-1A-04(a)(1)(ii). 8 3.

The MPIA Depends Upon Collaboration. For the MPIA to work as the General Assembly intends, applicants and custodians must engage in collaborative efforts when the path to fulfillment of a records request presents obstacles. As we have previously observed, “[i]t is often true that a requestor is at a disadvantage in formulating [an MPIA] request because the requestor does not know what records the agency keeps or how it keeps them.” Glass v. Anne Arundel Cnty., 453 Md. 201, 232 (2017). As such, we have advised that, when possible, “an agency should in good faith provide some reasonable assistance to the requestor in refining the request for the records the requestor seeks.” Id.

However, an applicant needs to recognize that their submission of a “broadly-worded request” often will present challenges for custodians. Id. “Literal compliance with such a request … would often require such a diversion of resources and agency time as to amount to a huge expense.” Id. at 232-33 . For these reasons: In practice, a productive response to a PIA request is often an iterative process in which the agency reports on the type and scope of the files it holds that may include responsive records, and the requestor refines the request to reduce the labor (and expense) of searching those records. When the requestor and agency work together, the process approximates the purpose and policy of the PIA.

When they do not, what results is the requestor insisting on what, to the agency, is an unbounded and unreasonable search and the agency insisting on what, to the requestor, is an unbounded and unreasonable fee. Id. at 233 . As noted above, in 2015, the General Assembly established the Ombudsman’s Office. Thus, if initial collaborative efforts between an applicant and a custodian concerning a requested fee waiver are not successful, the parties may attempt to resolve their dispute with the assistance of the Ombudsman.

See GP § 4-1B-04(a)(6). 9 As we shall see, a breakdown in collaboration occurred in this case. B. Facts and Procedural History of This Case The record in this case is a tangled web. OJB submitted several broadly and similarly worded MPIA requests to BPD in a short period of time. BPD did not respond timely and fully to all of OJB’s requests.

Indeed, BPD initially misplaced one of the requests. Once the parties began communicating in earnest, additional errors and misunderstandings plagued the process. Neither party ultimately displayed much willingness to engage in the kind of collaborative process that the MPIA contemplates will occur in challenging situations like this one. We begin by providing some background about the types of records OJB sought in its MPIA requests to BPD.

We then summarize OJB’s requests. Next, we recount OJB’s filing of this case and the parties’ communications concerning a fee waiver. Finally, we discuss BPD’s motion to dismiss or, alternatively, for summary judgment, the circuit court’s ruling, and OJB’s appeal to the Appellate Court. 1. Use of Force Records Generated by the Baltimore Police Department This appeal concerns records generated by BPD when it conducts an internal investigation into a police officer’s use of force.

A brief summary of the types of records BPD generates is a helpful foundation to understand the substance of OJB’s requests. We note, however, that the policies and procedures discussed below are in flux as the Baltimore Consent Decree Monitoring Team continues its efforts under a consent decree (the “Consent Decree”) to remedy constitutional defects in BPD’s policing. See generally City of Baltimore Consent Decree, City of Balt., available at https://perma.cc/8ZCQ-EY8W 10 (describing the Consent Decree as a “court enforceable agreement to resolve [the Department of Justice’s] findings that it believed [BPD] had engaged in a pattern and practice of conduct that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and certain provisions of federal statutory law”).6 BPD has established a classification system for degrees of seriousness of an officer’s use of force. Level 1 includes the least serious uses of force, such as “techniques that cause Temporary Pain or disorientation as a means of gaining compliance, hand control or escort techniques (e.g., elbow grip, wrist grip, or shoulder grip), and pressure point compliance techniques.” BALT.

POLICE DEP’T, POLICY 1115, USE OF FORCE 5 (Nov. 24, 2019) (“Policy 1115”), available at https://perma.cc/S2DJ-XVYP. Level 1 uses of force are “not reasonably expected to cause injury[.]” Id. Level 2 includes “[f]orce that causes or could reasonably be expected to cause an injury greater than Temporary Pain” (provided that it does not rise to a Level 3 use of force). Id.

Level 3 includes, among other things, use of deadly force and uses of force resulting in loss of consciousness or requiring hospitalization. Id. at 6; BALT. POLICE DEP’T, POLICY 710, LEVEL 3 USE OF FORCE INVESTIGATIONS/SPECIAL INVESTIGATION RESPONSE TEAM (“SIRT”) 2 (Nov. 24, 2019) (“Policy 710”), available at https://perma.cc/Y7TZ-LU2X. The SIRT is described in Policy 710 as a “multidisciplinary BPD unit tasked with conducting investigations of Level 3 Use of Force, in-custody deaths, any fatal motor 6 For the full text of the Consent Decree, see https://perma.cc/K4UX-VBAT. 11 vehicle crash in which the actions of a BPD member were a contributing cause, and investigations specially assigned to SIRT by the Police Commissioner or designee.” Id.

The initial SIRT investigation is considered a criminal investigation, but SIRT also is mandated to “proceed with an administrative investigation of the member’s actions.” Id. According to Policy 710, an appropriate resolution of a use of force incident by SIRT “entails arriving at a suitable recommendation for action to the Public Integrity Bureau (PIB), Office of the State’s Attorney (SAO), and Performance Review Board (PRB) based on the information discovered through a thorough, complete, and informed investigation.” Id. According to BPD, a closed SIRT file could contain between 400 and 600 pages of documents, as well as audio and/or video recordings. Such a file typically would contain a “Force Report,” or Form 96, completed by the officer who used the Level 3 form of force.

See Policy 710. In addition, SIRT investigators are required to generate three specific reports: (1) a 24-Hour Report containing basic facts known within the first 24 hours of investigation; (2) a PRB Presentation that SIRT provides to the PRB after the SAO issues its findings on criminal charges; and (3) a Final Report, after receipt of the PRB’s findings, as approved by the Police Commissioner, through which SIRT closes its file. Id. at 5. Level 1 and Level 2 uses of force are also investigated, but not by SIRT.

See generally Policy 1115. For both Level 1 and Level 2 uses of force, the incident is reviewed by several officials according to a defined procedure. See BALT. POLICE DEP’T, POLICY 725, USE OF FORCE REVIEW AND ASSESSMENT (Nov. 24, 2019), available at https://perma.cc/2WVW-P2NG. 12 According to BPD, each Level 1 and Level 2 use of force incident generates approximately 25 pages of documents.7 2.

OJB’s MPIA Requests to BPD Between December 2019 and February 2020 OJB submitted several requests for records to BPD between December 2019 and February 2020. They can be summarized as follows: 1. Request sent on December 20, 2019: OJB sought all SIRT investigation files that were closed between July 1, 2018 and December 19, 2019. 2. Request sent on December 20, 2019: OJB sought all records of all citizen and administrative complaints about BPD that were closed between January 1, 2019 and December 19, 2019. 3.

Request sent on January 10, 2020: OJB sought all currently open SIRT investigation files that had been open for more than 12 months. 4. Request sent on January 10, 2020: OJB sought all currently open citizen and administrative complaint files about BPD that had been open for over 12 months. 5. Request sent on January 28, 2020: OJB sought all files for investigations of incidents involving Level 1, Level 2, and Level 3 uses of force that were closed between January 1, 2019 and December 31, 2019.8 7 In this section of the opinion, we have cited current versions of several BPD policies. BPD is currently in the process of updating its policies regarding use of force.

See, e.g., BALT. POLICE DEP’T, DRAFT POLICY 1115, USE OF FORCE 4-5 (July 26, 2023), available at https://perma.cc/5G75-YKJM (receiving public comments from July 27, 2023 – August 28, 2023). Prior iterations of these policies were in effect for much of the period of time relevant to OJB’s MPIA requests, but any differences in the policies are immaterial to our analysis. 8 The record does not include a copy of the January 28, 2020 request, but counsel for BPD and OJB both referred to this request in their communications with each other between March and May of 2020, and BPD described the scope of this request in papers it filed in the circuit court. 13 6. Request sent on February 3, 2020: OJB sought files for investigations relating to a particular officer.9 Copies of the first four of the above-listed requests are contained in the record.

The signer of each request was “Matt Zernhelt, Esq.,” writing on the letterhead of Baltimore Action Legal Team (“BALT”). Mr. Zernhelt wrote in each request that the request was being made on behalf of OJB, and described OJB as “a Baltimore-based organization interested in government policy and conduct” or a “Baltimore-based organization interested in policy and handling of police misconduct.” In each request, Mr. Zernhelt asked that BPD waive all fees for production of the records. For example, at the end of the December 20, 2019 request seeking closed SIRT files, Mr. Zernhelt wrote: We are prepared to pay reasonable copying costs for reproducing the requested materials but request that you waive any such fees under the GP § 4-206(e), which authorizes you to waive copying fees when doing so would be “in the public interest.” Being a program of a non-profit organization the requestor has been deemed a public interest organization, classified tax-exempt, not generating any beneficiary income. Additionally, the requestor seeks the information for a public purpose and concern, as it regards official actions and the agency’s performance of its public duty.

As it regards the public safety, welfare, and legal rights of the general public, and because it bears implications on the interests of Maryland taxpayers, the request further aligns with the public interest. Furthermore, this request is not for commercial benefit as it is not made by for-profit news media. In the event that there are fees, please inform BALT of the total charges in advance of fulfilling this request. 9 The record does not include a copy of the February 3, 2020 request, but counsel for BPD and OJB also both referred to this request in their communications with each other between March and May of 2020, and BPD described the scope of this request in papers it filed in the circuit court. According to BPD, the official custodian located 67 files that were responsive to this request. 14 On January 11, 2020, BPD’s Document Compliance Unit (“DCU”) sent an email to Mr. Zernhelt acknowledging receipt of the December 20, 2019 request for closed SIRT files.

DCU assigned the tracking number 20-0063 to that request. DCU did not provide a similar acknowledgment with respect to the December 20, 2019 request for closed citizen and administrative complaints. DCU did not timely respond to the January 10, 2020 requests for open SIRT and citizen/administrative complaint files. After Mr. Zernhelt sent separate emails to DCU on February 10, 2020, noting the lack of responses with respect to the January 10, 2020 requests for open SIRT and complaint files, DCU replied only to Mr. Zernhelt’s email concerning the request for open complaint files, but failed to acknowledge receipt of that request and instead acknowledged receipt of the February 3, 2020 request for files relating to a specific officer. 3.

OJB Files a Complaint in the Circuit Court for Baltimore City. Having not received timely notification of grant or denial of any of the first four MPIA requests listed above, see GP § 4-203(a)(1) (“Except as provided in paragraph (2) of this subsection, the custodian shall grant or deny the application promptly, but not more than 30 days after receiving the application.”), OJB filed a Complaint on March 2, 2020, in the Circuit Court for Baltimore City under GP § 4-362 seeking declaratory, injunctive, and other relief in connection with those four requests. 4. The Parties’ Communications Between March 17 and May 27, 2020 Wayne Brooks, a Claims Investigator for BPD, sent a letter to Mr. Zernhelt, dated March 17, 2020, in which he responded to four of the above-listed six MPIA requests that OJB had submitted between December 2019 and February 2020. With respect to the 15 request for SIRT investigation files closed between July 1, 2018 and December 19, 2019 (tracking number MPIA-20-0063), Mr. Brooks’s letter stated that two Excel spreadsheets were enclosed: a spreadsheet titled “SIRT Investigation 07012018 – 12192019” and a spreadsheet titled “UOF 07012018 – 12192019.”10 It appears that Mr. Brooks and/or DCU interpreted OJB’s December 20, 2019 request for closed SIRT investigation files to be seeking files relating to all investigations of uses of force (Levels 1, 2, and 3) that were closed between July 1, 2018 and December 19, 2019.11 Mr. Brooks indicated that the closed investigation files requested by OJB were disclosable.

However, he stated that OJB’s requests for closed citizen and administrative complaint files, open SIRT files, and files relating to the specific officer were denied. Mr. Brooks did not mention OJB’s January 10, 2020 request for open citizen and administrative complaint files. Nor did he reference OJB’s January 28, 2020 request for investigation files of incidents involving Level 1, Level 2, and Level 3 uses of force that were closed between January 1, 2019 and December 31, 2019. 10 The spreadsheets are not included in the record. 11 The December 20, 2019 request for closed investigation files specifically requested “[a]ll [SIRT] investigations, including reports and related documents, conducted in response to any and all officer actions, particularly the use of force” for files that BPD closed between July 1, 2018 and December 19, 2019. The request then defined “Use of force” to include Level 1, Level 2, and Level 3 uses of force.

It appears that, despite the request’s specific reference to investigations conducted by SIRT (which, as we understand it, would involve only Level 3 uses of force), BPD read OJB’s definition of “Use of force” to mean that OJB was seeking files for investigations of all levels of use of force that were closed during the July 1, 2018 through December 19, 2019 period, including, but not limited to, investigations conducted by SIRT. 16 Mr. Brooks stated: “If you would like complete copies of any closed SIRT files, please refer to the attached Excel spreadsheet and provide that list in the order of priority…. Once your list is received, DCU will obtain the selected files and determine with the appropriate unit what files can be segregated and released.” Additionally, Mr. Brooks agreed that DCU would inform OJB of the total estimated cost before fulfilling OJB’s request for closed investigation files, as OJB had requested. Mr. Brooks stated that “waiver and/or reduction of fees are granted on a case by case basis.” Mr. Zernhelt responded by email on March 18, 2020, informing BPD that OJB had filed a complaint in the Circuit Court for Baltimore City. As such, he requested that, going forward, an attorney communicate with him about OJB’s MPIA requests.

Kay Harding, then an Assistant Solicitor in the Baltimore City Department of Law, Office of Legal Affairs, contacted Mr. Zernhelt on March 20, 2020, and informed him that she had been assigned to the case. In a letter to Ms. Harding dated March 20, 2020, Mr. Zernhelt took issue with Mr. Brooks’s application of several MPIA exemptions to OJB’s records requests. He also noted that the “records requested are now past due” and reiterated OJB’s requests for fee waivers. Ms. Harding discovered that DCU had misplaced OJB’s January 28, 2020 request.

On March 23, 2020, Mr. Zernhelt sent Ms. Harding a copy of the January 28, 2020 request. After reviewing the January 28 request, Ms. Harding emailed Mr. Zernhelt: “The January 28, 2020, request looks identical to the December 20th request. Let me know if I am missing something.” Mr. Zernhelt replied that the December 20 and January 10 requests for investigation files “were directed more specifically at SIRT investigations. The January 17 28th request was for all incidents of force, which may include more Level 1 and Level 2 reporting and follow up.” Ms. Harding replied to Mr. Zernhelt on March 24, 2020, acknowledging that BPD “has not fully responded to your request” and stating that, “due to the voluminous nature of the request, BPD would be requesting an extension to work through your request.” See GP § 4-203(d)(1) (“[W]ith the consent of the applicant, [any time limit under this subsection] may be extended for not more than 30 days[.]”).

Ms. Harding continued: “It appears that there are differing interpretations of the law; however, in the interest of justice and efficiency, let’s try to resolve as many outstanding items, as possible and reach an agreement regarding those matters that are not in dispute.” With respect to OJB’s request number MPIA 20-0063, Ms. Harding stated that there were 19 responsive SIRT files closed between July 19, 2018 and December 19, 2019, and that “[t]he criminal investigative portions of the file[s] may be provided.” Referencing the “SIRT Investigation 07012018 - 12192019” spreadsheet that Mr. Brooks had previously provided to Mr. Zernhelt, Ms. Harding continued: From reviewing the spreadsheet, are there any particular files that you desire? Each file will generally contain[] 400-600 pages of documents. Is your client willing to accept only the “summary of the investigation? If not, all files would have to be pulled, copied, scanned, and reviewed.

It is estimated that the vast majority of the files that you’ve requested are not in digital format. Further, is your client requesting the audio/video interviewed [sic] from the SIRT investigations? If so, the audio/video interviews would have to be copied, as well. Is your client willing to not receive the audio/video files?

If your request is not narrowed or reduced, it is estimated that it would take the Public Integrity Bureau (“PIB”) at least 45 days to retrieve the files and provide them to the Document Compliance Unit (“DCU”). Then, DCU 18 would have to process the production of the release for each file. It is estimated that it would take DCU at least 30 days to process all 19 files for release, which would practically mean that this request could not be fulfilled until late-June/July 2020. The estimated associated cost would be thousands of dollars and overtime hours would have to be approved.

Is your client open to narrowing its request? Notwithstanding Mr. Zernhelt’s prior clarification that the December 20 request for closed investigation files specifically related to SIRT files, Ms. Harding also provided information about 13,439 use of force files that were closed between July 1, 2018 and December 19, 2019, including Level 1 and Level 2 use of force files. Ms. Harding asked Mr. Zernhelt to “confirm that you are requesting all of the portions of the 13,439 files that may be disclosed to be provided. If you are requesting all of the files, please consider narrowing your request as your request is voluminous.”12 Ms. Harding confirmed that closed citizen and administrative complaints, as well as open SIRT files, would not be produced for the reasons stated in Mr. Brooks’s letter.

Ms. Harding stated that DCU had logged in OJB’s January 28, 2020 request on March 23, 2020 and was currently reviewing that request. Ms. Harding also wrote that, based on the nature of the January 28 request, BPD would be requesting an extension of time to respond to it. On March 26, 2020, Mr. Zernhelt responded by email to Ms. Harding’s email of March 24. In a section of his email under a heading of “MPIA 20-0063 (December 20, 2019),” Mr. Zernhelt confirmed that OJB was seeking all 19 SIRT files that were closed between July 1, 2018 and December 19, 2019.

Mr. Zernhelt said that OJB would accept 12 As discussed below, the 13,439 number was subsequently determined to be inaccurate. 19 case summaries in the immediate term while it waited “for the reproduction of the entire files.” OJB could not determine how to prioritize receipt of the 19 files, as the names of the officers were redacted in the spreadsheet Mr. Brooks had provided. Mr. Zernhelt further stated that OJB was requesting the audio/video included in the files. Mr. Zernhelt also effectively broadened the December 20, 2019 request at that time to include all closed use of force investigation files: “Yes, we are requesting all 13,439 files, each including a Form 95, Offense Report, and Statement of Probable Cause. Will you provide the Level I and Level II Use of Force administrative investigations, up to the point of a disciplinary investigation transition?

I understand they can turn into personnel matters, but the end result should not taint what was not previously a personnel record. The Use of Force records are collected for other purposes.” In light of Mr. Zernhelt’s response, Ms. Harding sent two cost estimates to Mr. Zernhelt on April 7, 2020, which laid out in detail the costs associated with collecting, reviewing, scanning, and redacting all responsive documents under MPIA 20-0063 (which both parties now understood to include Level 1, 2, and 3 use of force investigation files that were closed between July 1, 2018 and December 19, 2019). Between the two cost estimates, BPD quoted a total cost of $1,431,475.50. At the end of the cost estimates, Ms. Harding included the following (seemingly boilerplate) statement regarding a fee waiver: “If you believe that you are eligible or entitled to a total or partial fee waiver, pursuant to § 4-206(e), please provide an affidavit of indigence and/or the reason for the fee waiver request.” 20 Mr. Zernhelt replied in an April 7, 2020 email that each of OJB’s MPIA requests had “included a public interest fee waiver request, which were again repeated in letters and email communications.” He added: Disclosure will benefit community relations, as these records will bolster BPD’s accountability to the community.

Records will enable transparency into the thoroughness of investigations and the reliability of leadership. This is foundational for communication and trust. Further, OJB is not requesting these records for commercial gain. Mr. Zernhelt asked whether BPD had denied OJB’s fee waiver requests.

On April 8, 2020, Ms. Harding replied by email to Mr. Zernhelt that BPD had not denied OJB’s request for a fee waiver for the closed investigation files: The Public Information Act contemplates fee waivers for those who are indigent, defined as “an individual’s family household income is less than 50% of the median family income for the State as reported in the Federal Register” or for entities that cannot pay the fee. Md. Code, Gen. Prov., § 4-206(e). While I understand that Open Justice Baltimore is a non-profit that desires all fees be waived, could you consider narrowing the scope of the request to minimize costs?

That would certainly reduce the fee and the time it would take to get responsive records. If not, could you please articulate any other reasonable factors that can help BPD in considering your request to waive all of these fees? That request has not been denied, as BPD is committed to transparency and dissemination of information to the public that restores trust in the police department. Mr. Zernhelt replied to Ms. Harding later on April 8, noting that “[f]ee waivers are not restricted to individuals.

We have made a fee waiver request at near every stage, providing reasons for why the requestor would be entitled and why the transparency that would be granted would be in BPD’s and the public’s interest…. The transparency would allow trust to grow. The entirety of the request is necessary for this effect. We continuously request, but find our question evaded.” 21 Mr. Zernhelt also raised questions about the accuracy of the information in the April 7 cost estimates, which led BPD to determine that the estimates had included substantial errors due to duplicates found in the list of responsive documents.

Suffice it to say that there were not actually more than 13,000 closed use of force investigation files for the period from July 1, 2018 through December 19, 2019 – in fact, there were nowhere near that many. On April 13, 2020, Ms. Harding emailed Mr. Zernhelt that BPD “has denied your fee waiver request.” Ms. Harding did not provide any explanation for the denial.13 On April 15, 2020, Ms. Harding sent a revised cost estimate that eliminated the duplications. In the revised estimate, the files that BPD identified as responsive to OJB’s request number 20-0063 included 2,318 Level 1 and Level 2 use of force files and 18 Level 3 use of force/SIRT files. BPD estimated that the total cost to produce these 2,336 files would be $245,123.14 BPD stated that “[t]he total cost is required to commence production on your request.” At the end of this cost estimate, Ms. Harding again included the following statement regarding a fee waiver: “If you believe that you are eligible or entitled to a total 13 It is somewhat unclear whether the April 13 communication regarding denial of the requested fee waiver was in relation to the December 20, 2019 request for closed use of force investigation files or the January 28, 2020 request for closed use of force investigation files, or both.

Because Mr. Zernhelt had effectively broadened the scope of the December 20, 2019 request to include Level 1 and Level 2 use of force investigation files, the December 20 and January 28 requests largely overlapped. 14 At first, BPD referred to 18 SIRT files, but BPD later corrected this and stated that there were 19 SIRT files, bringing the total estimated cost of production for 2,337 responsive files to $245,670. 22 or partial fee waiver, pursuant to § 4-206(e), please provide an affidavit of indigence and/or the reason for the fee waiver request.” On May 14, 2020, Mr. Zernhelt sent a final fee waiver request to Ms. Harding.15 Mr. Zernhelt wrote: We would again request a fee waiver in the public interest for these records. We would prioritize initial disclosure of the SIRT records …. As we have stated on numerous occasions, starting with each initial request, it is in the public interest that these records be disclosed. Due to the history of corruption and violence within and imposed by BPD, documented by the 2016 Department of Justice Report, operation of the Gun Trace Task Force and statements from its prosecution, Sgt.

Dohoney’s indictment, recent BPD shootings, and other events, there is compromised trust between the community and BPD (documented specifically in the DOJ Report at page 47, to start). Ongoing secrecy continues suspicion. Opening transparency in matters of internal investigations and accountability will be a step towards trust, allowing Baltimore to build a stronger relationship with its police department. Transparency can conquer false narratives that currently circulate.

The community will have faith to turn to BPD for protection as they will have reason to believe individual officers are held to a high standard. The word of BPD will not be looked upon with skepticism. However, you have locked out this opportunity. The funds you have imposed have created a mountain to prevent access.

The requestor is a program under nonprofit status, with extremely restricted funds. All of Open Justice Baltimore’s funds are put into its community programming and no excess funds exist. (Moreover, this request is not being made to draw profit). Being so, BPD’s denial of our request was improper.

Please let me know at your earliest convenience if these fees can be waived and if reproduction of these records can begin. Ms. Harding responded on May 27, 2020, stating “BPD stands by its decision.” 15 Between April 15 and May 14, the number of closed Level 3/SIRT files increased from 19 to 40. There is no explanation in the record for this change. 23 5. The Circuit Court Proceedings As discussed above, on March 2, 2020, after BPD initially failed to provide timely responses to OJB’s December 20, 2019 and January 10, 2020 MPIA requests, OJB filed a lawsuit in the Circuit Court for Baltimore City.

In its Complaint, OJB alleged that BPD was “in blatant violation of the timing requirements imposed by law” and had “disregarded its responsibilities under the [MPIA].” OJB asked the court, among other things, to order BPD to provide the records covered in the four MPIA requests within 10 days. In addition, OJB asked that the court order BPD to waive all fees associated with the MPIA requests. After BPD denied a fee waiver for the one MPIA request as to which it granted inspection (the request for closed use of force investigation files), OJB argued that the denial of the fee waiver was arbitrary and capricious. The parties subsequently filed a series of papers disputing both factual and legal matters.

In its motion to dismiss, or in the alternative, for summary judgment, filed on August 18, 2020, BPD acknowledged its lack of timeliness and lack of responsiveness, but represented that the delays were not intentional but rather were the result of understaffing, BPD’s assigned Public Information Act Representative being out of the office on vacation for a period of time, the voluminous nature of OJB’s requests, and the large number of MPIA requests BPD received during this period.16 16 BPD provided an affidavit from Dana Abdul Saboor of DCU, who attested that between December 20, 2019 and January 6, 2020, DCU received 66 MPIA requests and that between January 1, 2020 and February 28, 2020, DCU received 395 MPIA requests. 24 With respect to OJB’s challenge to the fee waiver denial, BPD argued that its denial of the fees quoted in the April 15, 2020 cost estimate for production of 2,318 Level 1 and Level 2 files, and 19 Level 3/SIRT files, was not arbitrary and capricious. According to BPD, it was OJB’s burden to establish that the requested information was “in the public interest because it is likely to contribute significantly to the public understanding of the operations and activities of the government.” BPD claimed that the Custodian reviewed Plaintiff’s statements concerning [its] ability to pay and whether the disclosure “is likely to contribute significantly to public understanding of the operations and activities of the government” – the “other factor,” and exercised his discretionary authority to deny the Plaintiff’s fee waiver request. BPD asserted that OJB’s request “lack[ed] specificity regarding its public interest and public purpose.” BPD claimed that OJB did not explain how disclosure of the requested records would help the public understand BPD procedures. Nor had OJB demonstrated its “expertise in reviewing or analysis [sic] criminal investigations, [SIRT] investigations, or the mechanics of internal affairs investigations.” According to BPD, OJB’s “broad and wide-reaching requests appear[ed] to be nothing more than a fishing expedition[.]” BPD attached to its motion the Affidavit of Eric Melancon, then the Chief of Staff to Commissioner Harrison.

Mr. Melancon stated in his affidavit that one of his duties was to review MPIA fee waiver requests and determine if a fee waiver should be granted or denied. Mr. Melancon stated that BPD posts “extensive information” on its website that is “intended to provide an understanding of the work the department is doing to underscore its commitment to professionally serve and protect Baltimore’s residents, workers, and visitors.” He also wrote that “[s]hould [OJB] wish to better understand BPD’s operations,” 25 OJB could consult BPD’s website for copies of various documents “relating to officer integrity and accountability,” and OJB also could review the Consent Decree Monitoring Team’s semi-annual reports and other relevant materials. Mr. Melancon then wrote that he “carefully reviewed [OJB’s] fee waiver request, consulted with counsel, and ultimately denied OJB’s fee waiver request.” He further stated: I reached this decision, in part, because OJB did not provide sufficient information to establish its need for a fee waiver. OJB’s articulated public interest purpose for the records was extremely general and vague.

The reasons OJB provided for its request did not explain its public interest purpose or how the disclosure would achieve its purpose. Additionally, I determined that the materials sought would not likely “contribute significantly to public understanding of the operations and activities of the [BPD]” and therefore the request was not in the public interest so as to justify a fee waiver. The materials sought by OJB’s requests are protected from disclosure by the MPIA … and potentially other law…. The documents sought would likely be heavily redacted and thus not understandable to the public.

Much thought was given to OJB’s request, but it was determined that OJB’s fee waiver request did not meet the public interest standard or factors. In reaching this conclusion, BPD did consider the overall cost of production, budgetary constraints, and manpower shortages in the Public Integrity Bureau, but these consideration [sic] did not drive the decision. (Paragraph numbers omitted). BPD also argued that it appropriately denied OJB’s other requests for records.

The circuit court held a hearing on November 18, 2020, and issued its ruling on February 26, 2021. The court noted that BPD had denied several of OJB’s MPIA requests. With respect to the “remaining records that BPD was willing to disclose,” the court recited that “BPD provided [OJB] with an initial estimate of costs necessary for production of the 26 records.” The court referenced the 2,33617 Level 1, Level 2, and Level 3 use of force files that were described in BPD’s April 15, 2020 cost estimate. The circuit court upheld BPD’s denial of OJB’s request for the waiver of the fees to produce the Level 1, Level 2, and Level 3 use of force files: “Given the volume of records sought by [OJB] and the time and cost necessary to produce the records, BPD did not arbitrarily or capriciously deny the fee waiver.” The circuit court agreed with OJB that BPD improperly denied disclosure of closed citizen and administrative complaints, but stated that such records would need to be redacted in such a way as to remove them from the category of personnel records identifiable to an individual.

The court ordered BPD to provide a cost estimate to OJB for production of the closed citizen and administrative complaint files with the necessary redactions.18 Although the circuit court overturned BPD’s decision to deny disclosure of the closed citizen and administrative complaints, the circuit court found that “BPD acted in good faith in attempting to work with [OJB] to reframe its request to get the information that it sought.” 17 As noted above, there was a discrepancy concerning the number of closed SIRT files. At one point, BPD told OJB there were 18 such closed files, but later said there were 19. It appears that the circuit court referred to 2,336 closed files based on BPD’s incorrect reference in the April 15 cost estimate to 18 closed SIRT files. 18 The record does not indicate whether BPD subsequently denied OJB’s requested fee waiver for closed citizen and administrative complaint files. In any event, that MPIA request is not before us. 27 The circuit court upheld BPD’s denial of disclosure of open SIRT investigation files.19 6.

The Appellate Court’s Opinion OJB appealed the circuit court’s ruling upholding BPD’s denial of disclosure of open SIRT investigation files and BPD’s denial of the fee waiver for closed use of force investigation files. BPD did not cross-appeal that portion of the circuit court’s ruling that held it was required to disclose closed citizen and administrative complaint files to OJB with redactions. In an unreported opinion, the Appellate Court upheld the circuit court’s decision with respect to BPD’s denial of inspection of open SIRT investigation files. Open Justice Baltimore v. Baltimore City Police Dep’t, No. 122, Sept. Term, 2021, 2022 WL 354486 (Feb. 7, 2022).

However, the intermediate appellate court reversed the circuit court’s ruling relating to the fee waiver denial and held that BPD’s denial of OJB’s fee waiver request was arbitrary and capricious. 2022 WL 354486 , at ¹⁰. The Appellate Court relied on its recent decision in Baltimore Action Legal Team v. Office of State’s Attorney of Baltimore City, 253 Md. App. 360 (2021): The instant issue and arguments are virtually identical to those raised in Baltimore Action Legal Team. On the record before us, we are unable to conclude that the court had sufficient facts from which it could reasonably conclude that appellees had meaningfully considered the very same infamous The circuit court’s ruling was silent regarding OJB’s MPIA request for open 19 citizen and administrative complaints. 28 allegations and publicized controversy as were at issue in Baltimore Action Legal Team. Open Justice Baltimore, 2022 WL 354486 , at ¹⁰.20 BPD filed a petition for a writ of certiorari, which we granted on September 23, 2022.

Baltimore Police Dep’t v. Open Justice Baltimore, 482 Md. 7 (2022).21 We have reordered and rephrased the questions for which BPD sought review as follows:22 1. What are the parameters of the discretion that the MPIA vests in an official custodian in reviewing a fee waiver request under GP § 4-206(e)? 2. Did the Appellate Court properly hold that BPD’s denial of OJB’s request to waive fees for the production of closed Level 1, Level 2, and Level 3 use of force investigation files was arbitrary and capricious? 20 We discuss the Appellate Court’s opinion in Baltimore Action Legal Team at length below. 21 OJB did not seek further review of that part of the Appellate Court’s opinion in which the Appellate Court affirmed the denial of inspection of open SIRT files. 22 The questions as BPD presented them in its petition asked: 1. Does the discretionary language in Maryland Code, General Provisions Article, § 4-206(e), stating that, under certain conditions, “[t]he official custodian may waive a fee under this section,” require the official custodian to waive a fee when police misconduct investigation records are requested? 2.

When an official custodian denies a fee waiver request in good faith, but a reviewing court rules that the denial is arbitrary and capricious for failure to consider an additional relevant factor, is the proper remedy a remand to the agency to consider that additional factor, or summary reversal (i.e., ordering the agency to waive the fee)? 3. Did the Court of Special Appeals err by reversing the circuit court’s affirmation of BPD’s fee waiver denial when there was sworn affidavit evidence in the record that BPD had considered the relevant factors in determining that the requested waiver was not in the public interest? 29 3. If BPD erroneously denied OJB’s fee waiver request, what is the proper remedy? II Standard of Review The proper interpretation of the MPIA’s fee waiver provision presents a question of law that we review de novo.

Pabst Brewing Co. v. Frederick P. Winner, Ltd., 478 Md. 61, 74-75 (2022). The parties disagree as to the standard that reviewing courts apply to a custodian’s denial of an MPIA fee waiver request. Identifying the proper standard of review presents a question of law that we review de novo. See, e.g., Alahad v. State, 362 So. 3d 190 , 197 (Fla. 2023); Butler v. Dunlap, 931 P.2d 1036, 1038 (Alaska 1997).

For the reasons discussed below, we conclude that a custodian’s decision to deny a fee waiver request under the MPIA must be upheld unless it is arbitrary or capricious. That is the standard that we will apply when reviewing BPD’s denial of OJB’s requested fee waiver. Finally, identification of the proper remedy in the event of an arbitrary or capricious decision to deny a fee waiver presents a question of law. As such, our review of that question is de novo.

See Dickson v. United States, 478 Md. 255, 260 (2022); see also Washington Suburban Sanitary Comm’n v. LaFarge, 443 Md. 265, 279-88 (2015) (conducting statutory interpretation analysis in determining whether to remand to the agency for a complete “do-over” or to remand to the agency for a narrower determination). 30 III Discussion Before we address the merits of the parties’ competing arguments, we first consider whether the circuit court had jurisdiction to hear OJB’s challenge to BPD’s denial of its requested fee waiver. At the time OJB filed its complaint in the circuit court, the MPIA provided for judicial review “whenever a person or governmental unit is denied inspection of a public record or is not provided with a copy, printout, or photograph of a public record as requested[.]” GP § 4-362(a) (2019 Repl. Vol.). To the extent OJB sought judicial review of BPD’s decision to deny inspection of open SIRT files and closed citizen and administrative complaint files, the circuit court had jurisdiction under GP § 4-362(a) to rule on OJB’s challenge.

However, § 4-362(a) is silent concerning judicial review of an official custodian’s denial of a fee waiver request under § 4-206(e). The judicial review provisions contained in Maryland’s Administrative Procedure Act (“APA”) also do not apply here, because BPD is a locally funded governmental unit. See Md. Code Ann., State Gov’t (“SG”) § 10-203(a)(4) (2021). BPD asserts that the circuit court had jurisdiction to review OJB’s challenge to BPD’s denial of the fee waiver as an administrative mandamus action.

We agree with BPD that the part of OJB’s complaint that challenged the denial of the fee waiver was in the nature of an administrative mandamus action. That is the case because, as to the denial of the fee waiver, there was “both a lack of an available procedure for obtaining review and an allegation that the action complained of is illegal, arbitrary, capricious or unreasonable.” Mayor and City Council of Balt. v. ProVen Mgmt., Inc., 472 Md. 642 , 669 n.9 (emphasis 31