Blythe v. State

CHARLES E. MOYLAN, JR., Judge (Retired, Specially Assigned). As is frequently the plight of pro-se litigation, this case is a procedural mess. It may, however, with a touch of kindly forbearance, be salvageable. ⁵⁰² An Application for MPIA Disclosure The appellant, Victor Blythe, Jr., on August 20, 2002, filed suit in the Circuit Court for Harford County, asking that, under the provisions of the Maryland Public Information Act (MPIA), the Harford County Police Department be required to turn over to him for his inspection the file from his earlier prosecution for homicide. On February 27, 2004, a hearing was held, at the end of which the motion to compel the disclosure of the file was denied.

This appeal, with a few inconsequential bumps and corrections of course, is from that denial. The file in issue was that of a seven-year-old homicide case against the appellant. That case was closed at the nisi prius level on August 15, 1997, when a Harford County jury convicted the appellant of two counts of first-degree murder, two counts of armed robbery, two counts of kidnapping, and a single count of conspiracy to commit murder. He was sentenced to two consecutive sentences of life imprisonment without the possibility of parole.

On October 6, 1998, this Court affirmed the convictions in an unreported decision. The Court of Appeals on December 24, 1998, denied the petition for a writ of certiorari. At that point, the criminal case against the appellant had been finally concluded. The significance of that closure will be a major factor in our subsequent analysis.

The Application Denied In July of 2000, the appellant first sought to have the Harford County police (or Sheriffs Department or State’s Attorney’s Office) furnish him with a copy of the file. On July 14, he was notified by the County Attorney’s Office that his request was being denied. The letter from the Assistant County Attorney simply recited, without any supporting detail, the statutory laundry list of possible reasons for a denial: The requested information is exempt from disclosure pursuant to Section 10-618(f)(2) of the State Government Article of the Annotated Code of Maryland and the subsections contained therein. Specifically, disclosure of this in ⁵⁰³ formation would interfere with a valid and proper law enforcement proceeding; constitute an unwarranted invasion of personal property; disclose the identity of confidential sources; disclose investigative techniques and procedures; prejudice an investigation; and, endanger the life or physical safety of individuals.

In addition, any contemplated use of these materials in post-conviction proceedings would be precluded by Faulk v. State’s Attorney for Harford County, et al., 299 Md. 498 , 474 A.2d 880 (1984). Specifically, whenever a defendant in a pending criminal proceeding seeks access to investigatory police repoHs, the Maryland Public Information Act does not require the disclosure of said investigatory police reports. (Emphasis supplied). On August 9, the appellant wrote back to the County Attorney’s Office, seeking “administrative review” of the July 14 denial of his request for the file.

The Assistant County Attorney wrote back to the appellant on August 16, acknowledging the request for a review of the denial. I am in receipt of your letter dated August 9, 2000. Your letter seeks administrative review in accordance with Section 10-622 of the State Government Article of the Annotated Code of Maryland. The County Attorney’s Office responded by erecting a legal stone wall that is daunting enough for us to interpret and must have completely overawed a pro-se inmate of the House of Correction. [T]he Sheriff of Harford County, the custodian of these records, is not a unit subject to Subtitle 2 of Title 10 in accordance with Section 10-622(b).

Section 10-203(a)(4) specifically excludes an officer or unit not part of a principal department of state government that is created by or pursuant to the Maryland Constitution, operates in only one county and is funded wholly or partly from local funds. See also, Rucker v. Harford County, 316 Md. 275 , 558 A.2d 399 (1989). Because the Sheriff is not a unit subject to Subtitle ⁵⁰⁴ 2 of Title 10 of the Annotated Code of Maryland, administrative review pursuant to Section 10-622 of the State Government Article is not available. There was no further action in the case until the appellant, on August 20, 2002, filed in the Circuit Court a Motion for a Court Order Compelling MPIA Compliance.

The court conducted a hearing on - the appellant’s motion on February 27, 2004. The motion was denied and this appeal followed. The Procedural Glitches The appellee cites four reasons why the trial court’s denial of the appellant’s motion should be affirmed. The fourth is based upon the actual merits of the MPIA.

The other three concern alleged procedural inadequacies of the appellant’s case. The appellee argues that the trial court, rather than addressing the merits, should simply have dismissed the case as mistitled and misfiled. In its brief, the appellee refers, less than charitably, to the procedural lapses. The circuit court appropriately denied Blythe’s motion to compel compliance with the MPIA, given [(1)] his failure to comply with the statutory procedure for judicial review, [(2)] his failure to provide notice to the county agency that denied his MPIA request, [and (3)] his failure to pursue judicial review within the applicable two-year limitations period set forth in Md.Code Ann., Cts. & Jud.

Proc. § 5-110. The trial court, however, chose to reach the merits. So shall we. In the last analysis, the procedural sins were venial, not mortal.

A. “A Rose By Any Other Name ...” As the appellee quite correctly points out, the judicial review available pursuant to § 10-623(a) is by way of an original civil action. Section 10-623(a) provides, in pertinent part: ⁵⁰⁵ Whenever a person ... is denied inspection of a public record, the person ... may file a complaint with the circuit court for the county where: (2) the public record is located. The appellant, laboring under the misapprehension that this case was but the latest chapter in the saga that had begun with his arrest in 1996, styled the action as “State of Maryland v. Victor Junior Blythe, Case Number 12-K-96-000348 IN.” That was the original number of the criminal case filed on “04/23/1996” with its then current status then listed as “Closed/Inactive.” The MPIA case now before us is, indeed, inaptly named. Is the mislabeling, however, such stuff as ultimate dismissal should be made of?

An Order of this Court, filed on June 9, 2004, directing that the circuit court’s judgment be formally entered and docketed, recognized the misnomer but had no difficulty in allowing the case to go forward: On August 22, 2002, the Circuit Court for Harford County received appellant’s “Motion for a Court Order Compelling MPIA Compliance,” challenging Harford County’s denial on July 14, 2000, of appellant’s Public Information act request. The action, though civil, was docketed in the instant criminal case where appellant was convicted of murder on October 21, 1997. For purposes of this Order, the aforesaid motion will be assumed to be a duly commenced civil action. (Emphasis supplied).

Another provision of that same Order indicated that, notwithstanding the inappropriate styling, the case was alive and well as it approached appellate review before us. ORDERED that the record on appeal will remain in this Court and, subject to further Order of this Court, the briefing and argument schedule in this matter shall not be affected by this Order. (Emphasis supplied). Neither was the circuit court deterred by the name of the ⁵⁰⁶ case from reaching its merits. 1 But for the name, what is now before us as the case of Blythe v. State is indistinguishable from what would be before us had the case been named Blythe v. State’s Attorney for Harford County.

See, e.g., Faulk v. State’s Attorney for Harford County, 299 Md. 493 , 474 A.2d 880 (1984). We are not for a moment condoning slipshod labeling practices but, realistically, in terms of the extreme sanction sought by the appellee, we must conclude, with Juliet, “What’s in a name?” B. Were the Proper Defendants Actually Left Without Notice? The appellee’s second attack on the appellant’s pleading skills is scathing in its cataloging of the appellant’s many procedural shortcomings: As pertinent Maryland Rules further require, upon the filing of such a complaint for judicial review, a summons and complaint must be served upon the defendant agency or custodian of records that denied the MPIA request. See Md. Rule 2-lll(b) (plaintiffs obligations preliminary to issuance of summons); Md. Rule 2-112(a) (process — issuance of summons); Md. Rule 2-114 (process — content); Md. Rule 2-121 (process — service in personam).

Here, it is undisputed that Blythe did not file a complaint seeking judicial review in accordance with the requirement of § 10-623(a), and that summons and complaint were not served upon Harford County or its police department, which was the agency that denied Blythe’s MPIA request. Nor is there any indication in the record that Blythe provided Harford County or its police department with notice of the Motion to Compel MPIA Compliance filed in the criminal case. Under these circumstances, the proceedings below did not even include the proper defendant in an action for judicial review under § 10-623, which is the agency that denied the MPIA request. Only the State and ⁵⁰⁷ Blythe are parties in the criminal case; neither Harford County or its police department are parties in that proceeding.

Therefore, the motion filed by Blythe could not possibly comply with the judicial review provision of the MPIA, and the circuit court properly denied the motion. (Emphasis supplied). Notwithstanding those dire forebodings, the proper defendants, by some wondrous necromancy, 1) were fully on top of the case from the moment of its filing; 2) were on station before the trial court, admirably prepared, on the scheduled hearing date; and 3) defended the case with consummate competence and skill. They suffered under no misapprehension that the case was a criminal one.

They displayed intimate familiarity with the MPIA, and especially with §§ 10-618(f)(2) and 10-623. They relied, with tactical adroitness, on Faulk v. States Attorney for Harford County, supra. The appellee does not suggest what more they might have done, had they been more formally notified and served. In actuality, however, the proper defendants were fully notified.

The appellant’s initial request for his file was directed to the Harford County Police Department, as custodian of the file in issue. The letter was referred to the County Attorney’s Office, which responded to the appellant on July 14, 2002, with copies of the reply being sent to both the Harford County State’s Attorney’s Office and the Harford County Sheriffs Office. The appellant’s follow-up letter of August 9, 2000, was directed to the Sheriff for Harford County, as custodian of the file. It was the County Attorney’s Office which, on August 16, answered the appellant’s letter, again “copying” the State’s Attorney’s Office and the Sheriffs Office.

The appellant initiated this court proceeding on August 22, 2002, by filing his Motion for a Court Order Compelling MPIA Compliance. The motion identified itself as one brought pursuant to the MPIA. Albeit entitled “Blythe v. State,” the document referred to the “Respondent, the Harford County Police Department” and described the respondent as “a gov ⁵⁰⁸ ernmental unit responsible for the custody, care and control of the records in question pertaining to the Petitioner.” The relief sought by the appellant was a court order directed to the Harford County Police Department. WHEREFORE, the Petitioner, Victor Blythe, Pro se, respectfully requests that this Honorable Court grant the following and prays that: A. This Honorable Court enter an Order, Compelling the Harford County Police Department to disclose and copy any and all records, documents, correspondence, reports, photographs, maps, files, tape recordings and all other discovery/documentary material with redaction, relating in any way to any police investigation involving Petitioner’s alleged role in the murders of Dwight Nelson and Marlene Ellis, specifically including the production of the documents in Exhibit # 1.

(Emphasis supplied). The appellant’s Certificate of Service asserted that copies of the motion had been sent to 1) the County Attorney’s Office, 2) the State’s Attorney’s Office, and 3) the Sheriffs Office. The State’s Response to Petitioner’s Motion was promptly filed on September 16, 2002, by Vernon M. Gentile, an assistant state’s attorney for Harford County. The response recognized that the appellant had misstyled his complaint by giving it the title and number of the original criminal case.

Notwithstanding that, the response was fully alert as to what it was that the appellant was asking the court to do. That a motion such as petitioner’s is a request for judicial review under the State Government Article, Section 10-623, and is a civil proceeding. However, this motion has been filed pursuant to the original criminal proceeding, as indicated in the captioned case number which this motion has been filed under. (Emphasis supplied).

The same assistant state’s attorney represented the appel-lee at the hearing before the circuit court on February 27, 2004, and competently defended the case on the MPIA merits. ⁵⁰⁹ From the filing of this case on August 22, 2002, through its final disposition on February 27, 2004, all interested parties were on full actual notice of all developments. No one was left in the dark. By whatever modality, all parties were fully on notice. C. The Statute of Limitations In appellate brief, the appellee raises, for the first time, the defense that the appellant’s motion to compel MPIA compliance was untimely filed.

Maryland Code, Courts and Judicial Proceedings Article, § 5-110, provides, in pertinent part: An action to enforce any criminal or civil liability created under §§ [10-611 through 10-628 of State Government Article] of this Code may be brought within two years from the date on which the cause of action arises. (Emphasis supplied). It is the appellee’s argument that the letter of August 16, 2000, in which the County Attorney’s Office finally denied the appellant’s request for his file, represented the date on which this cause of action accrued. That date, does, indeed, appear to be an accurate one for the accrual of the cause of action.

As this Court noted in Kline v. Fuller, 56 Md.App. 294, 306 , 467 A.2d 786 (1983), The sheriffs denial of Kline’s request to inspect the two categories of documents at issue here represented a final administrative action, which the circuit court was being asked to review. Although both [§ 10-623] and Kline’s petition speak in terms of a mandatory injunction ordering the production of the records, in such a proceeding, the court would necessarily have to determine whether the records in question are subject to the Act and, if so, whether the sheriffs refusal to disclose them is justified. (Emphasis supplied). The filing of the appellant’s complaint on August 22, 2002, did not come within the prescribed two years, but two years and six days later. 2 ⁵¹⁰ The short answer to the contention is that it has not been preserved for appellate review.

In the appellee’s answer of September 17, 2002 to the appellant’s complaint, there was no mention made of a limitations problem. In the appellee’s argument before the circuit court on February 27, 2004, there was no mention made of a limitations problem. The trial judge never made a ruling on limitations and was never called upon to make such a ruling. Accordingly, we will not address it.

Just as the appellee is doing with the limitations issue in this case, the defendant/custodian of records in City of Frederick v. Randall, 154 Md.App. 543 , 841 A.2d 10 (2004), sought, at the appellate level, to justify non-disclosure on grounds that had not been specified in the initial letter denying the request for disclosure. Judge Salmon wrote for this Court in holding that such grounds were not cognizable either at the trial level or on appeal. The City also claims that the denial of access was justified by exemptions contained in SG sections 10-615 and 10-617. The short and complete answer to that contention is that the custodian of records is required under the MPIA to explain to the requester the reason for denial.

Ms. Borden in her written response to the request never justified denial of access based on sections 10-615 or 10-617; likewise, in her December 22, 2000, testimony, which was relied upon by both parties at the motions hearing, she never claimed that denial was based on those sections of the MPIA. Under such circumstances, the motions judge did not err by failing to consider the provisions of sections 10-615 or 10-617. 10 ⁵¹¹ 154 Md.App. at 575 , 841 A.2d 10 (emphasis supplied). See also Prince George’s County v. Washington Post Co., 149 Md.App. 289 , 317 n. 21, 332 n. 33, 815 A.2d 859 (2003). Even in rejecting the contention, we cannot help but note the feeble character of Courts Article, § 5-110 as an effective statute of limitations.

Ordinarily, the phenomenon being litigated is a discrete historic event — an accident, a breach of contract, an act of professional malpractice, a crime. If litigation is not commenced within a prescribed period of time, the right to litigate, and to recover, may be lost forever. In such a context, a statute of limitations has critical importance. The focus of the litigation, moreover, is on the significance of what the parties did back at the time of the triggering historic event, not on the current propriety of what they are doing, or are about to do, at the time of trial.

The focus of an MPIA disclosure hearing, by contrast, is totally different. The concern of the circuit court hearing of February 27, 2004, for instance, was not on the propriety of the County Attorney’s Office’s denial of disclosure back on July 14 or August 16, 2000. It was on the propriety of Harford County’s continuing denial of disclosure up to and including February 27, 2004. 3 A law school professor could ⁵¹² easily conjure up a scenario wherein non-disclosure back on August 16, 2000, might have been perfectly appropriate then, but wherein non-disclosure might have become inappropriate as of February 27, 2004. Such a scenario, however, would not be at all damaging to the disclosure petition at the hearing on which the focus will be on non-disclosure now, not on nondisclosure back then.

July 14, 2000, and August 16, 2000, do not, in the context of this case, have the significance, as historic events, that a past tort or a past crime might have. They are but random points along a continuum of non-disclosure. The circuit court complaint, to be sure, does require a triggering event of a disclosure’s having been sought and denied. If the letter of August 16, 2000, timely challenged, should have turned out to be too old to serve as the triggering event, however, the pursuit of disclosure, unlike the pursuit of damages for a whip-lash injury, would not have been forever compromised.

The complainant would simply be put to the task of going out and manufacturing a fresh triggering event by making a fresh request for disclosure. Our point is that the § 5-110 statute of limitations, now being belatedly raised, is one of essentially minuscule significance. 4 It has little more than nuisance value. In any event, the procedural glitches in this case were merely bumps in the road. After a few bounces, we are prepared to address the MPIA merits.

The appellant’s request to inspect his criminal file was given very short shrift. It deserves more painstaking consideration. ⁵¹³ Maryland Public Information Act of 1970 The archetype of public information acts was the federal Freedom of Information Act (FOIA), originally enacted in 1966 by Pub. L. No. 89-487, 80 Stat. 250, and now codified as 5 U.S.C. § 552 . In Environmental Protection Agency v. Mink, 410 U.S. 73, 80 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973), the Supreme Court summarized the purpose of the FOIA.

Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. (Emphasis supplied). Within four years of the passage of the FOIA in 1966, Maryland followed suit.

By Chapter 698 of the Laws of 1970, the General Assembly enacted the Maryland Public Information Act (MPIA) and codified it initially as Article 76A, §§ 1-5A. The provisions of the MPIA are almost verbatim those of the FOIA. As Faulk v. State’s Attorney of Harford County explained, 299 Md. at 506 , 474 A.2d 880 , “The purpose of the Maryland Public Information Act ... is virtually identical to that of the FOIA.” Following from that symmetry between the two acts, the Court of Appeals further observed that “[wjhere the purpose and language of a federal statute are substantially the same as that of a later state statute, interpretations of the federal statute are ordinarily persuasive.” Id. But see Office of the Governor v. Washington Post Co., 360 Md. 520 , 759 A.2d 249 (2000).

Faulk v. State’s Attorney, 299 Md. at 499 , 474 A.2d 880 , described the purpose of the FOIA: Its purpose was to provide the public the right of access to government information. Its basic policy was in favor of disclosure. It mandated disclosure of certain records in the possession of certain agencies unless the requested records were within the scope of a statutory exemption. A person denied the right to inspect any record covered by the FOIA had the right to expedited judicial review.

In such a ⁵¹⁴ judicial proceeding, the burden was on the public official denying the right to inspect to show that the requested records were within the scope of a statutory exemption. (Emphasis supplied). In A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 32 , 464 A.2d 1068 (1983), the Court of Appeals described in almost identical terms the purpose of the MPIA. [T]he Public Information Act expressly states that its provisions “shall be broadly construed in every instance with the view toward public access.” Thus, 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.... [T]he language must be liberally construed in order to effectuate the Public Information Act’s broad remedial purpose. (Emphasis supplied).

See also Office of the Governor v. Washington Post Co., 360 Md. at 544-45 , 759 A.2d 249 ; State Prosecutor v. Judicial Watch, 356 Md. 118, 134 , 737 A.2d 592 (1999); Prince George’s County v. Washington Post, 149 Md.App. 289, 306-08 , 815 A.2d 859 (2003). When the State Government Article was enacted by Ch. 284 of the Acts of 1984, §§ 1-5A of Article 76A were “transfer[red] without amendment” to the various provisions of State Government Article, §§ 10-611 through 10-628. In Attorney General v. Gallagher, 359 Md. 341, 353 , 753 A.2d 1036 (2000), Judge Eldridge described the seamless transition. There is no indication in the legislative history that the separate sections of Title 10, subtitle 6, of the State Government Article were to be interpreted differently from the separate subsections of former Article 76A, § 3.

As pointed out above, the transfer was described in the Title of Ch. 284 as being “without amendment.” Moreover, the revisor’s notes to new §§ 10-615,10-617, and 10-618 stated that they ⁵¹⁵ were all “derived without substantive change” from Article 76A, § 3. See II Laws of Maryland 1984 at 1357-1364. (Emphasis supplied). Organizational Framework of the MPIA Title 10 of the State Government Article deals with “Governmental Procedures.” Subtitle 6 of Title 10 deals with “Records.” Part III of Subtitle 6 deals with “Access to Records,” and in its 18 sections, 10-611 through 10-628, constitutes the Maryland Public Information Act.

After § 10-611 provides seven definitions, §§ 10-612 and 10-613 provide the central thrust of the MPIA. Section 10-612(a) is a general statement of principle. All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees. (Emphasis supplied).

In implementing that principle, § 10-613(a) then directs that disclosure shall be the norm and that any denial of disclosure must be authorized by some express provision of the MPIA. (1) Except as otherwise provided by law, a custodian shall permit a person or governmental unit to inspect any public record at any reasonable time. (2) Inspection or copying of a public record may be denied only to the extent provided under this Part III of this subtitle. (Emphasis supplied).

In construing the provisions of the MPIA, moreover, § 10-612(b) prescribes an interpretive tilt in favor of disclosure To carry out the right set forth in subsection (a) of this section, unless an unwarranted invasion of the privacy of a person in interest would result, this Part III of this subtitle 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. ⁵¹⁶ (Emphasis supplied). See Office of the Governor v. Washington Post, 360 Md. at 544-45 , 759 A.2d 249 ; Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 78 , 716 A.2d 258 (1998) (“Under both the PIA and the FOIA, the public agency involved bears the burden in sustaining its denial of the inspection of public records.”). And see John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-53 , 110 S.Ct. 471 , 107 L.Ed.2d 462 (1989). Section 10-614, “Applications,” sets out, in detail, the procedures to be followed in making application to a custodian of records for the inspection of such records.

It also spells out the procedures that must be followed by a custodian both in approving and in denying an application for disclosure. The Statutory Exemptions From Disclosure Although the general thrust of the MPIA is in favor of disclosure, four sections of the act deal with circumstances in which disclosure either 1) must be denied or 2) may be denied in the discretion of the custodian. Section 10-615 deals with “Required denials — In general.” The denial of inspection is mandatory if the public record is, by law, “privileged or confidential” or if inspection would be contrary to 1) a State statute, 2) a federal statute or regulation, 3) a rule of the Court of Appeals, or 4) a court order. Police Patrol v. Prince George’s County, 378 Md. 702, 710-15 , 838 A.2d 1191 (2003); Caffrey v. Dept. of Liquor Control, 370 Md. 272, 303-04 , 805 A.2d 268 (2002); State Prosecutor v. Judicial Watch, 356 Md. 118, 130-33 , 737 A.2d 592 (1999).

Section 10-616 deals with specific categories of records and mandates the denial of an application to inspect such types of records as, e.g., adoption records, welfare records, letters of reference, hospital records, student records, personnel records, etc. Kirwan v. The Diamondback, 352 Md. 74, 82-84 , 721 A.2d 196 (1998); Baltimore City Police Department v. State, 158 Md.App. 274, 281-83 , 857 A.2d 148 (2004). Section 10-617, by contrast, deals with the mandatory denial of inspection with respect to those parts of otherwise disclosa- ⁵¹⁷ ble public records containing “Specific information,” such as, e.g., medical and psychological information, sociological information, commercial information, financial information, etc. Kirwan v. The Diamondback, 352 Md. at 84-87 , 721 A.2d 196 ; City of Frederick v. Randall, 154 Md.App. 543, 560 , 841 A.2d 10 (2004). Sections 10-615, 10-616, and 10-617 all deal with the mandatory denial, under certain conditions, of an application to inspect records. Section 10-618, by contrast, deals with “Permissible denials” and entrusts certain disclosure determinations to the discretion of the custodian of the records.

In Attorney General v. Gallagher, 359 Md. 341, 353-54 , 753 A.2d 1036 (2000), Judge Eldridge discussed this difference between mandatory and discretionary denials. Sections 10-615 and 10-617 are both mandatory provisions, meaning that when they are applicable to a particular record, the custodian must deny inspection of that record. This is made clear by the use of the word “shall” in both provisions, which specifically state that “a custodian shall deny inspection” when one of the enumerated exemptions under those sections applies. Section 10-618, however, is a discretionary provision, stating that “if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest, the custodian may deny inspection by the applicant of that part .... ” § 10-618(a).

As the petitioner correctly points out, the discretionary authority of the custodian under § 10-618 cannot arise if the record cannot be disclosed because of a mandatory provision in §§ 10-615 or 10-617. (Emphasis supplied). See also Police Patrol v. Prince George’s County, 378 Md. 702, 712, 838 A.2d 1191 (2003); Caffrey v. Dept. of Liquor Control, 370 Md. 272, 296-97 , 805 A.2d 268 (2002); Mayor & City Council of Baltimore v. Maryland Committee Against the Gun Ban, 329 Md. 78,81 , 617 A.2d 1040 (1993); City of Frederick v. Randall, 154 Md.App. at 560-61 , 841 A.2d 10 . ⁵¹⁸ Permissible Non-Disclosure Under § 10-618 Our concern in this case is exclusively with § 10-618, dealing with “Permissible denials.” Section 10-618 lists eight very specific categories of documents or information with respect to which the custodian may, under certain conditions, deny the right of an applicant to inspect a part of a public record. The types of possibly protected records include such categories as, e.g., interagency and intra-agency documents, examination questions, research projects, pre-purchase real property appraisals, site-specific locations of endangered species, inventions owned by State public institutions of higher learning, trade secrets, etc. Two characteristics should be noted that are common denominator features of the permissible denial of disclosure for all of the categories of records covered by § 10-618.

One is that the denials of inspection that are permitted are not blanket denials for an entire record but are more narrowly focused denials of “a part of a public record.” The second critical requirement for discretionary denial is that the custodian of the record must believe, and ultimately demonstrate to a court, that the inspection of a certain part of the record “would be contrary to the public interest.” Subsection (a) provides: In general. — Unless otherwise provided by law, if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest, the custodian may deny inspection by the applicant of that part, as provided in this section. (Emphasis supplied). Some discussion is appropriate of these two characteristics of a permissive denial of inspection under § 10-618 generally. They are the requirements of 1) the severance of that part of a public record deserving of non-disclosure from other parts of the record not so deserving and 2) the burden of proof that is allocated to the custodian of the record to justify non-disclosure. ⁵¹⁹ Blanket Exemptions Versus Severability Even when one or more of the statutory exemptions from disclosure is clearly involved, the MPIA’s strong bias in favor of disclosure dictates that the exemptions from disclosure must be applied narrowly.

Even if some information in a contested file is exempted from disclosure, therefore, the exemption may not be blanketly invoked to shield an entire file if the shielding of only a part of the file would suffice to serve the purpose of the exemption. Just as § 10-618(a) provides for the permissible denial of inspection of “a part of a public record,” so too does § 10 — 614(b)(3)(iii) impose upon a custodian who denies an application for inspection the obligation to “permit inspection of any part of the record that is subject to inspection and is reasonably severable.” In Attorney General v. Gallagher, 359 Md. at 350 , 753 A.2d 1036 , the Court of Appeals pointed out how § 10 — 614(b)(3)(iii) imposes on the custodian the obligation to sever those parts of a record that are properly subject to disclosure from other parts of the record that may be shielded by an exemption. The General Assembly mandated, in § 10 — 614(b)(3)(iii) of the Act, that a custodian should “permit inspection of any part of [a] record that is subject to inspection and is reasonably severable.” The limiting language of subsection (f)(2) has consistently been interpreted by this Court as a limitation upon the custodian’s authority to withhold an investigatory file in its entirety when claiming an exemption under that subsection. (Emphasis supplied).

In Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66 , 716 A.2d 258 (1998), the Board of Dental Examiners attempted to justify non-disclosure on the ground that the record was an “investigatory file” and that its disclosure would prejudice a pending investigation. Judge Cathell’s opinion made clear at the outset that an entire record is not shielded from view simply because a part of it may be. [I]f the Dental Board could demonstrate to the trial court that disclosure would prejudice its investigation, it then ⁵²⁰ must show to what extent disclosure would prejudice its investigation. To that end, the government agency can withhold only such documents or portions thereof to the extent such harm would occur. It is entirely possible, therefore, that even though Dental Board files fit within the exemption, a substantial portion of those documents could be required to be disclosed because release of only a small portion of the records would “prejudice” the government agency’s investigation. 351 Md. at 74 n. 7, 716 A.2d 258 (emphasis supplied).

Judge Cathell further explained that the modality for severing the disclosable from the non-disclosable may be a redaction of the protected information. [T]he circuit court can deny inspection only to the extent that disclosure would result in prejudice to the particular investigation. That is, if the Dental Board only could show that disclosure of the name of the person filing the complaint would have prejudiced its investigation, then the files should have been disclosed to appellant with the complainant’s name, or any other information identifying the complainant, redacted. 351 Md. at 87 , 716 A.2d 258 (emphasis in original). Chief Judge Wilner stated the same principle for this Court in Maryland Committee Against the Gun Ban v. Mayor and City Council of Baltimore, 91 Md.App. 251, 265 , 603 A.2d 1364 (1992), rev’d on other grounds, Baltimore v. Maryland Committee, 329 Md. 78 , 617 A.2d 1040 (1993). The department seems to argue that, because some reports contain personal information that needs to be protected, it is necessary to shield all IID reports.

But the law does not allow such generic, sweeping protection. It looks to the nature of the individual records actually sought, not that of other records compiled under different circumstances. (Emphasis supplied). Judge Rodowsky wrote for the Court of Appeals in Cran-ford v. Montgomery County, 300 Md. 759, 777 , 481 A.2d 221 (1984), in unequivocally declaring that generic exemptions are ⁵²¹ not permitted and that the burden of justifying the nondisclosure of even part of a record is squarely cast upon the custodian of the record.

The Md. Act imposes the burden on the records custodian to make a careful and thoughtful examination of each document which fairly falls within the scope of the request in order for the custodian initially to determine whether the document or any severable portion of the document meets all of the elements of an exemption. The General Assembly did not intend for custodians broadly to claim exemptions and thereby routinely to pass to the courts the task of performing in camera inspections. (Emphasis supplied). In Office of the Governor v. Washington Post Co., 360 Md. 520, 545 , 759 A.2d 249 (2000), Judge Eldridge pointed out that one possible modality for severing the diselosable from the non-disclosable may be an in camera inspection of the record by the trial judge.

An in camera inspection by the trial court, while not always necessary, may in some cases be “needed in order to make a responsible determination on claims of exemptions.” In addition, if parts of a record are exempt but other parts can be revealed, the Act favors severability. (Emphasis supplied). As a further aid to a court’s determination as to what part of a record might be exempt from disclosure and what part might not, the court is empowered, under the MPIA, to order the custodian of a record to submit to the court a “Vaughn index” of documents, identifying each document, briefly summarizing each, and stating the particular exemption that is claimed for each. As to the term “Vaughn index,” State Prosecutor v. Judicial Watch, 356 Md. 118 , 121 n. 1, 737 A.2d 592 (1999), explained the origin of the phrase.

The reference is to Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), in which the Circuit Court of Appeals for the District of Columbia required the responding party to provide a list of documents in possession, setting forth the date, author, ⁵²² general subject matter and claim of privilege for each document claimed to be exempt from discovery. See also, Lewis v. I.R.S., 823 F.2d 375 , 377 n. 3 (9th Cir.1987) (“A Vaughn index is a system of itemizing and indexing that correlates each of the government’s justifications for its refusal to disclose the documents with the actual portion of the documents at issue.”). See also Attorney General v. Gallagher, 359 Md. 341, 344-45 , 753 A.2d 1036 (2000); Cranford v. Montgomery County, 300 Md. 759, 777-79 , 481 A.2d 221 (1984); Gallagher v. Attorney General, 127 Md.App. 572, 575 , 736 A.2d 350 (1999); rev’d on other grounds, 359 Md. 341 , 753 A.2d 1036 (2000); City of Baltimore v. Burke, 67 Md.App. 147, 150 , 506 A.2d 683 (1986). In this case, there was by the custodian not so much as a nod in the direction of severability or an in camera inspection or a Vaughn index.

The letter of July 14, 2000 from the County Attorney’s Office to the appellant was a plenary denial, with no reference made to the contents of any specific documents contained in the larger file. The State’s Response to Petitioner’s Motion, filed on September 16, 2002, similarly made no mention of severability, but claimed broadly that “[s]aid information is not public information as contemplated by the Act.” The unilluminating ruling of the trial court did not refer to the possibility of severability. I’ve reviewed the letter from Mr. Roberts in the County Law Department, dated July 14, 2000, which denied access and [this case is] also controlled by the case [of] Faulk v. State’s Attorney for Harford County , in 299 Md., which I think [is] controlling. I will therefore deny the request of Mr. Blythe and deny the motion.

The Burden of Justifying Non-Disclosure Closely intertwined with § 10-618’s pursuit of sever-ability, as an amelioration of an exemption from disclosure, is the allocation of the burdens of 1) exploring the feasibility of severability and 2) justifying non-disclosure generally. Section 10-623 provides for the judicial review of a denial of a ⁵²³ request to inspect a public record. 5 Subsection (b)(2) allocates the burden of justification to the custodian, as it provides: (2) The defendant: (i) has the burden of sustaining a decision to deny inspection of a public record. Fioretti v. Board of Dental Examiners, 351 Md. at 78 , 716 A.2d 258 , also addressed the allocation of the burden of justifying non-disclosure. Under both the PIA and the FOIA, the public agency involved bears the burden in sustaining its denial of the inspection of public records.

(Emphasis supplied). The Fioretti opinion made it clear that a mere bald assertion that a particular exemption applies will not suffice to satisfy this burden of justification. In its brief before this Court, appellee asserts the circuit court had a sufficient basis for determining that the Board’s files were compiled for a law enforcement or prosecution purpose. We disagree.

As we stated supra, the government agency bears this burden. Here, appellee’s motion was not supported, by any affidavits, a summary of the so-called investigatory files, or other relevant evidence. The only information appellee put forward relative to the first step of the PIA exemption inquiry was its bald, assertion that because the Board may refer the matter for some form of administrative prosecution, the files it had compiled were of a law enforcement nature. Appellee did not explain to the trial court, for instance, the nature of its “investigation,” ⁵²⁴ what typically occurred upon the conclusion of such investigations, or the possible penalties appellant could face. 351 Md. at 83 , 716 A.2d 258 (emphasis supplied).

Cranford v. Montgomery County, 300 Md. at 771 , 481 A.2d 221 , also spoke to the allocation of the burden, “The custodian who withholds public documents carries the burden of justifying non-disclosure.” The Cranford opinion further noted that merely conclusory references to claimed exemptions will not suffice to satisfy the burden. If an agency has frustrated judicial review by presenting testimony or affidavits in conclusory form, the trial court may, depending upon all of the circumstances, appropriately exercise its discretion by ordering more detailed affidavits or by conducting an in camera inspection or simply by ordering disclosure because of the agency’s failure to meet its burden of satisfying the court that an exemption applies. 300 Md. at 780 , 481 A.2d 221 (emphasis supplied). See also Office of the Governor v. Washington Post Co., 360 Md. at 545 , 759 A.2d 249 . In his August 20, 2002 Motion for a Court Order Compelling MPIA Compliance, the appellant, freely acquiescing in advance to any necessary redaction, asked for the police investigatory file concerning his role in the 1996 murders of Dwight Nelson and Marlene Ellis.

The State’s Response, of September 16, 2002, actually sought to reverse the burden of identifying disclosable and non-disclosable documents within the larger file, as it alleged That Petitioner neglects to specify in his motion what records were requested. That burden of particularization, however, was not the appellant’s, but the appellee’s. In terms of identifying pertinent portions within a larger record, Cranford v. Montgomery County, 300 Md. at 778 , 481 A.2d 221 , quoted with approval from Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.Cir.1973): Because “courts will simply no longer accept conclusory and generalized allegations of exemptions,” the first burden on an agency which seeks judicial approval of a claim of ⁵²⁵ exemption is to provide “a relatively detailed analysis in manageable segments. ” (Emphasis supplied). Shielded Records of Investigations Under § 10-618(f) The argument of the appellee is that it is relieved of any burden to offer a particularized justification for any partial or total non-disclosure because it is operating under the umbrella of § 10 — 618(f), dealing with a crime-related investigation.

This is, to be sure, a § 10-618(f) case. As we zoom in on § 10 — 618(f)» we initially observe the salient feature that it is divided into two parts. Subsection (f)(1) describes, generally, the coverage of this “Investigations” category of permissible denials. (f) Investigations. — (1) Subject to paragraph (2) of this subsection, a custodian may deny inspection of: (i) records of investigations conducted by the Attorney General, a State’s Attorney, a city or county attorney, a police department, or a sheriff; (ii) an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or (iii) records that contain intelligence information or security procedures of the Attorney General, a State’s Attorney, a city or county attorney, a police department, a State or local correctional facility, or a sheriff.

(Emphasis supplied). The murder file against the appellant is covered, by definition, by § 10-618(f), in that it is a record of the criminal investigation conducted by the Harford County State’s Attorney’s Office and/or the Harford County Sheriffs Office 6 linking the appellant to the murders of which he was convicted in 1997. The appellee then leaps uncritically from ⁵²⁶ the section’s coverage of an investigatory file to an automatic exemption from disclosure. In the State’s Response to Petitioner’s Motion, it flatly claimed, in absolute terms, that the MPIA did not apply to a “criminal investigation file used to prosecute [a] criminal case.” The petitioner apparently is seeking access to the criminal investigation file used to prosecute the criminal case against him.

The Maryland Public Information Act does not apply to parties in a criminal proceeding. Said information is not public information as contemplated by the Act. (Emphasis supplied). In its appellate brief, the appellee relied on a similarly expansive reading of § 10 — 618(f).

The denial was based on the investigations exemption of the MPIA, Md.Code Ann., State Gov’t § 10-618(0. (Emphasis supplied). Under § 10-618(f), the custodian of an investigatory file possesses the discretion to deny its disclosure to applicants ⁵²⁷ for inspection if, but only if, the custodian, pursuant to § 10-618(a), further believes that the disclosure “would be contrary to the public interest.” In his concurring opinion in Fioretti v. Board of Dental Examiners, 351 Md. at 100 , 716 A.2d 258 , Judge Wilner emphasized that a custodian cannot justify nondisclosure simply by invoking the mantra that disclosure would “prejudice an investigation.” An agency cannot satisfy its statutory burden of “sustaining a decision to deny inspection of a public record” by simply asserting that all of the records sought would prejudice an investigation, for, if it could do that, the Public Information Act would be meaningless. (Emphasis supplied).

In such a situation the custodian still bears the burdens both 1) of exploring the feasibility of severing the record into disclosable and non-disclosable parts; and 2) of demonstrating, with particularity and not in purely conclusory terms, precisely why the disclosure “would be contrary to the public interest.” The custodian in this case did not even attempt to shoulder either of those burdens. Under § 10-618 generally, there was historically no distinction drawn between persons generally who sought to inspect an investigatory file and a person situated such as the appellant in this case. That was the state of the MPIA law until 1978. Subsection 10 — 618(f)(2): The Favored Status Of a “Person in Interest” What is now subsection 10-618(f)(2) was added to the MPIA by Chapter 1006 of the Acts of 1978.

It imposed, for the exclusive benefit of “a person in interest,” a stringently more severe limitation on the prerogative of a custodian to deny disclosure. (2) A custodian may deny inspection by a person in interest only to the extent that the inspection would: ⁵²⁸ (i) interfere with a valid and proper law enforcement proceeding; (ii) deprive another person of a right to a fair trial or an impartial adjudication; (iii) constitute an unwarranted invasion of personal privacy; (iv) disclose the identity of a confidential source; (v) disclose an investigative technique or procedure; (vi) prejudice an investigation; or (vii) endanger the life or physical safety of an individual. (Emphasis supplied). The critical change in the law was the addition of the adverbial modifier “only to the extent that.” The limiting of denial by a custodian to the seven exempting circumstances enumerated in subsection (f)(2) essentially paralleled a similar constriction of the exemption for investigatory files under the FOIA, imposed in 1974.

National Labor Relations Board v. Robbins Tire and Rubber Co., 437 U.S. 214, 221-22 , 98 S.Ct. 2311 , 57 L.Ed.2d 159 (1978), explained: Exemption 7 as originally enacted permitted nondisclosure of “investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.” In 197k, this exemption was reumtten to permit the nondisclosure of “investigatory records compiled for law énforcement purposes,” but only to the extent that producing such records would involve one of six specified dangers. (Emphasis supplied). Six of the enumerated exemptions under § 10-618(f)(2) are essentially linguistic clones of the six enumerated dangers under Exemption 7 of the FOIA. Only § 10-618(f)(2)(vi) stands alone — the extent to which the inspection would “prejudice an investigation.” It would appear that that danger, probably included in the § 10 — 618(f)(2) catalogue out of an excess of caution, would be subsumed, both in Maryland and federally, by the enumerated danger that an inspection would ⁵²⁹ “interfere with a valid and proper law enforcement proceeding” under (f)(2)(i).

Faulk v. State’s Attorney for Harford, County, 299 Md. 493, 501 , 474 A.2d 880 (1984), made it clear that Maryland was following the federal lead and that material did not qualify for an automatic exemption simply “because it was contained in an investigatory file.” According to the Supreme Court, the purpose of Exemption 7(A) was to make clear that Exemption 7 as originally enacted did not protect material simply because it was contained in an investigatory file. (Emphasis supplied). Baltimore v. Maryland Committee Against the Gun Ban, 329 Md. at 93 , 617 A.2d 1040 , examined the legislative history of § 10-618(f)(2) and pointed out that the new provision was intended to provide a broad grant of disclosure to the “person in interest,” to wit, the actual subject of the investigative file, a right of disclosure far broader than that available to persons other than the “person in interest.” [T]he Senate Committee “deemed it both necessary and preferable to provide for some type of outside vigilance wherein citizens are afforded the right to view those materials in the possession of law enforcement agencies respecting them personally.” As a result, the Senate Committee recommended, inter alia, that the then Act be amended to provide “that a ‘person [in] interest’ as defined in the statute may be denied the right to inspect records referred to in subsection (b)(i) thereof only to the extent that the production of such records would hamper or jeopardize valid law enforcement activities as particularly defined.” That recommendation was incorporated into Chapter 1006 of the Acts of 1978. It added to former Art. 76A, § 3(b)(i), the proviso that “the right of a person in interest to inspect the records may be denied only to the extent that the production of them would” generate one of the circum ⁵³⁰ stances currently enumerated in subparagraphs (i) through (vii) of § 10-6180(2).

(Emphasis supplied). Baltimore v. Maryland Committee, 329 Md. at 96-97 , 617 A.2d 1040 , went on to hold that the need to examine a file closely for the purpose of possible severability is particularly acute when the applicant for disclosure is “a person in interest” pursuant to § 10-618(f)(2). Under paragraph (2), inspection may be denied to the person in interest “only to the extent” that the inspection would give rise to one of the seven enumerated circumstances. That statutory mandate requires analyzing the investigation file material in order to distinguish between that which reflects one or more of the enumerated circumstances and that which does not.

In contrast, when the request to inspect is made by one other than a person in interest and paragraph (1) applies, the “custodian may deny inspection of ... records of investigations conducted by ... a police department.” Permissible denial applies to the entire record, to the extent that inspection would be contrary to the public interest. (Emphasis supplied.) In Frederick v. Randall, 154 Md.App. 543, 561-62 , 841 A.2d 10 (2004), Judge Salmon explained precisely how the “more favorable treatment” extended to a person in interest would manifest itself. When a request for public documents is made by a person in interest, that person is entitled to more favorable treatment under section 10-6180(2) of the MPIA than a requester who falls under section 10-6180(1). The treatment is more favorable under section 10 — 618(f)(2) because (1) if the request falls under (f)(2), the custodian can deny the request only for one of the seven reasons set forth in Paragraph 0(2), whereas under (f)(1) the discretion of the record custodian is broader and the request may be denied if, for any reason, disclosure would be contrary to the public ⁵³¹ interest; (2) under Paragraph (f)(2), a particularized showing as to every document withheld is necessary.

(Emphasis supplied). Office of the State Prosecutor v. Judicial Watch, 356 Md. 118, 139 , 737 A.2d 592 (1999), also referred to the favored status of a person in interest The appellee is not a person in interest and, thus, is not entitled to the more favorable treatment accorded such persons. (Emphasis supplied). In that opinion, Chief Judge Bell, 356 Md. at 136 , 737 A.2d 592 , explained the distinction in more detail.

Section (f)(1) does refer to Section (f)(2), however, which places restrictions on the custodian’s right to deny inspection to a person in interest, i.e. “a person or governmental unit that is the subject of a public record or a designee of the person or governmental unit.” § 10-611(e). When a person in interest is involved,, Section (f)(2) contemplates inspection unless disclosure would have the enumerated consequences; hence, it implicitly requires, in that circumstance, some explanation or justification for the decision to deny inspection. (Emphasis supplied). See also Briscoe v. City of Baltimore, 100 Md.App. 124, 129-31 , 640 A.2d 226 (1994); Maryland Committee v. Baltimore, 91 Md.App. at 262 , 603 A.2d 1364 (“[I]f the one seeking access is ‘a person in interest,’ access may be denied only if one or more of seven enumerated circumstances exist.”).

Precisely because of the favored status enjoyed by a person in interest, the obligation on the custodian is particularly heavy to justify an exemption pursuant to § 10-618(f)(2). The custodian must point to precisely which of the seven circumstances enumerated by the rule would require the exemption and explain precisely why it would do so. In Maryland Committee v. Baltimore, 91 Md.App. at 264-65 , 603 A.2d 1364 , Chief Judge Wilner’s analysis for this Court ⁵³² looked at the seven exempting circumstances, one by one, and concluded that, as to each, the custodian had failed to carry his burden of justification. Notwithstanding the fact that the Court of Appeals, in its Baltimore v. Maryland Committee, supra, reversed our holding that the Committee Against the Gun Ban was a party in interest, Judge Wilner’s analysis, even as an arguendo hypothetical, remains as a model of how a court should assess a claim of exemption under § 10 — 618(f)(2).

Note that with respect to each of the seven possible reasons for exemption, the burden of justification was on the custodian. More was required than a merely conclusory incantation of the exception. This takes us, then, to the seven circumstances enumerated in § 10 — 618(f)(2) that would justify non-disclosure, and, as to them, we are at a loss to understand how the court could have rationally arrived at its announced findings, for there was no evidence whatever to support them. This investigation had been concluded without further action at least a year before the request for access to the report was made, and so there was no investigation to be prejudiced by disclosure ((f) (2) (vi)).

The department, through counsel, conceded at Major Blackwell’s deposition that there was no law enforcement proceeding with which disclosure could interfere. ((f)(2)(H). The department also stipulated that, to its knowledge, there was no impending trial or adjudication which disclosure could prejudice ((f)(2)(H)) and that disclosure would not cause danger to or imperil the life or safety of any individual ((f)(2)(vii)). Major Blackwell conceded that no anonymous sources were used in the investigation, and so disclosure would not reveal the identity of a confidential source ((j)(2)(iv)).

The nub of the department’s reliance on subsection (f) seemed to be the concern that, if confidentiality of IID investigations could not be assured, people would be reluctant to cooperate with the investigators and provide information. To some extent, that implicates subsection (f)(2) (Hi) and (v) — unwarranted invasion of personal privacy and disclosure of an investigative technique or proce ⁵³³ dure. The problem as to the first of these is that there was not even a suggestion, much less evidence, that disclosure of this report, would invade anyone’s personal privacy. With respect to subsection (f)(2)(v), a,gain, the department produced no evidence that disclosure of the repoH would reveal an investigative technique or procedure. 91 Md.App. at 264-65 , 603 A.2d 1364 (emphasis supplied).

A Criminal Defendant Is a Quintessential “Person in Interest” Who, then, is such “a person in interest” entitled to such favored status? Baltimore v. Maryland, Committee, 329 Md. at 92 , 617 A.2d 1040 , clearly stated that a criminal defendant, as the person investigated, is a “person in interest” with respect to that investigatory file. The opinion also made it clear that, although records of investigations by a police department once enjoyed broad protection, that protection was significantly narrowed by the 1978 amendment with respect to “a person in interest.” The Act’s history covering reports of police investigations also makes clear that the “person in interest” referred to in § 10 — 618(f)(2) is the person who is investigated, ... Section 3(b)(i) of former Art. 76A addressed records of investigations conducted by a police department, but it did not contain, any special provisions concerning inspect,km, by a person in, interest. ...

What is today paragraph (2) of § 10-618(f) came into the Act by Chapter 1006 of the Acts of 1978. (Emphasis supplied). Section 10-611(e) defines “Person in interest” in the following pertinent terms: “Person in interest” means: (1) a person ... that is the subject of a public record. The appellee, nonetheless, stubbornly insists that a criminal defendant is somehow ineligible to inspect his criminal file if his purpose is to assist himself in some future litigation.

The appellee would thus transform the favored status of some ⁵³⁴ persons in interest into an