Bowen v. Davison

ADKINS, Judge. In this case we must analyze the Maryland Public Information Act (“PIA”), Md.Code (1984, 1999 Repl.Vol.), § 10-611 et seq. of the State Government Article (“SG”). David and Patricia-Bowen, appellants, contend that the Circuit Court for Montgomery County erred in denying their request for certain public records held by Montgomery County and Elizabeth Davison, the official custodian of the public records at issue (collectively “appellees”). FACTS AND LEGAL PROCEEDINGS Appellants are residents of Montgomery County.

In January 1999, they were in the process of reconstructing and remodeling their home. On January 29, 1999, they received a ¹⁵⁵ letter from John P. Whitt, a Code Inspector for the Montgomery County Department of Housing and Community Affairs (“DHCA”), that informed appellants that their property was in violation of Chapter 26 of the Montgomery County Code and that the violations must be corrected by March 3, 1999. Appellants contacted Whitt, who informed them that he wrote the letter in response to a neighbor’s complaint. On February 1, 1999, appellants wrote a letter to Davison, the Director of the DHCA.

In the letter, appellants explained the nature of the work being done on their property. Appellants informed Davison that they had an acrimonious relationship with a neighbor and believed that this neighbor filed the complaint. Additionally, appellants requested that the County “provid[e] [them] copies of any and all correspondence, from the complaining party or parties .. . [and] [i]f no such correspondence exists, the County provid[e] a letter representing that fact, and stating therein the name (or names) of the parties who originated the complaint.” On February 4, 1999, Whitt visited appellants’ home and found no violations. On February 12, 1999, Davison wrote appellants, informing them that no action would be taken against them at that time.

Davison, however, refused to disclose the identity of the complainant because it is this Department’s policy not to reveal the name of a complainant in order to encourage citizen cooperation, and the County Attorney’s Office will not reveal the name for the following reasons: 1. Informant privilege; 2. Investigatory privilege; and, 3. Article 10—618(f)(2)(iv) of the Maryland Public Information Act.

Appellant filed suit in the circuit court against Montgomery County, Davison, and Montgomery County Attorney Charles W. Thompson, Jr., 1 seeking to obtain the identity of the informant. As part of the action, Davison submitted an ¹⁵⁶ affidavit, admitting that the investigation of appellants closed on June 3,1999. She further explained that DHCA frequently relies on citizen complaints in enforcing the building standards of the Montgomery County Code, and that “many of the informants request confidentiality [out] of a fear of retribution by the violating party. Of the 3,100 citizen complaints referred to above, 816 (or 26%) of the complainants requested anonymity.” She further explained: Whenever a request is made seeking the identity of this confidential source, I weigh the interest of the party seeking the identity of the confidential source against the public interest in maintaining the confidentiality of the complainant.

In balancing these interests, I found that David and Patricia Bowen’s interests in seeking to disclose the identity of the complainant in their case was not outweighed by the public interest established by the legislature under [SG] Section 10—618(f)(2)(iv). This was especially so because in Mr. Bowen’s February 1, 1999, letter, he stated that “we have been requested to ascertain whether the complaint originated from the neighbors under statutory warning.” Moreover, in that letter, Mr. Bowen described certain disputes that existed between the Bowens and some of their neighbors. It appeared to me that Mr. and Mrs. Bowen sought to determine whether or not the complaints made to the DHCA were made by their neighbors so that Mr. and Mrs. Bowen could retaliate against the complainant if, in fact, the complainant were a neighbor of the Bowens. David Bowen also filed an affidavit.

In the affidavit, he explained the nature of the feud that appellants had with a neighbor. He stated that he wished to receive the requested information to assist in “defense of any potential action brought by [DHCA]____” He acknowledged, however, that he “[a]lso, depending on the source and content of the complaint, may seek appropriate civil remedies.” After a hearing on appellants’ motion for summary judgment, the court held that appellees were not required to disclose the requested information under the PIA. Specifically, the court reasoned that an investigation had occurred and that ¹⁵⁷ confidentiality of the informant's identity was necessary to enforce the housing code provisions. This appeal followed.

DISCUSSION A. Standard Of Review Summary judgment is appropriate where there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501. In reviewing the grant of a motion for summary judgment, we review the trial court’s ruling as a matter of law. See Fearnow v. Chesapeake & Potomac Tel.

Co. of Md., 104 Md.App. 1, 48 , 655 A.2d 1 (1995), rev’d, on other grounds, 342 Md. 363 , 676 A.2d 65 (1996). In other words, we must determine whether the trial court vras legally correct. Nationwide Mut. Fire Ins.

Co. v. Tufts, 118 Md.App. 180, 186 , 702 A.2d 422 (1997), cert. denied, 349 Md. 104 , 707 A.2d 89 (1998). Additionally, we review the same information from the record and decide the same issues of law as the trial court. See Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591-92 , 578 A.2d 1202 (1990). Facts necessary to the determination of a motion may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admission of facts, stipulations and concessions.

See Wood v. Palmer Ford, Inc., 47 Md.App. 692, 694 , 425 A.2d 671 (1981). The instant case is dependent on a legal interpretation of the PIA. Therefore, resolution by summary judgment is appropriate. B. The Maryland Public Information Act The PIA establishes a public policy that favors disclosure of government or public documents.

See Kirwan v. The Diamondback, 352 Md. 74, 80 , 721 A.2d 196 (1998). The PIA expressly provides that “[ajll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” SG § 10- ¹⁵⁸ 612(a). Thus, “[ejxcept as otherwise provided by law, a custodian shall permit a person or governmental unit to inspect any public record at any reasonable time.” SG § 10-613(a). The Act must be construed liberally in favor of disclosure.

See A.S. Abell Pub. Co. v. Mezzanote, 297 Md. 26, 32 , 464 A.2d 1068 (1983); SG § 10-612(b). The PIA, however, does provide ■ exceptions to the general rule favoring disclosure. See Office of the State Prosecutor v. Judicial Watch, 356 Md. 118, 134-35 , 737 A.2d 592 (1999). “These enumerated exceptions delineate certain types of records which are to be excluded from public inspections.” Office of the Att’y Gen’l v. Gallagher, 359 Md. 341, 343 , 753 A.2d 1036 (2000).

For example, the PIA requires a custodian to automatically deny inspection of specific records. See SG §§ 10-616, 10-617. Likewise, a custodian must deny inspection of a public record if the inspection would be contrary to a state or federal statute, court rule, or court order. See SG § 10-615.

In the instant case, appellants were denied access to records under SG section 10—618(f)(2). This statute gives a custodian discretion to deny inspection of public records “if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest!)]” SG § 10-618. In pertinent part, SG section 10-618 provides: (f) Investigations.—(1) Subject to paragraph (2) of this subsection, a custodian may deny inspection of: (1) 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. (2) A custodian may deny inspection by a person in interest only to the extent that the inspection would: ¹⁵⁹ (i) interfere with a valid and proper law enforcement proceeding; (ii) deprive another person of a right to a lair 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. SG § 10—618(0 (emphasis added). Appellants contend that the recent decision by the Court of Appeals in Fioretti v. Board of Dental Examiners, 351 Md. 66 , 716 A.2d 258 (1998), mandates disclosure of the requested information because “Fioretti clarifies that once a governmental investigation has concluded, the importance of the seven enumerated harms of subsection (2) of [sjection 618(f) are substantially alleviated, and inspection should be permitted.” They argue that because the DHCA investigation has closed, there is no public interest served in not disclosing the name of the informant and Davison’s concerns that appellants “could retaliate against the complainant” cannot “be used to deprive individuals of their rights.” In Fioretti , the Board of Dental Examiners sent Fioretti a letter stating that it had reason to believe that she “may have performed dental hygiene procedures without on-site supervision by a licensed dentist.... ” Fioretti, 351 Md. at 69 , 716 A.2d 258 . The letter informed Fioretti that she should discontinue the unsupervised practice of dental hygiene and required her to sign and return an “Agreement” whereby she promised “only to practice dental hygiene in the State under the supervision of a licensed dentist who is physically on the premises and available for personal consultation.” Id. at 70 , 716 A.2d 258 .

After Fioretti’s request to obtain a copy of the complaint lodged against her “was denied as a case under investigation,” she filed suit to access the records. Id. at 70 , 716 A.2d 258 . ¹⁶⁰ The Court reversed the trial court’s dismissal of the action. The Court explained that because the Board was not one of the enumerated agencies in SG section 10-618(f)(l)(i), it “must demonstrate both that the records are ‘an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose,’ and that disclosure is not warranted ‘to the extent that the inspection would’ result in one of the enumerated harms.” Id. at 78 , 716 A.2d 258 . Regarding the first element, the Court held that an agency “must, in each particular PIA action, demonstrate that it legitimately was in the process of or initiating a specific relevant investigative proceeding in order to come under the aegis of the exception.” Id. at 82 , 716 A.2d 258 .

The Court held that the Board failed to meet its burden to prove that the records were compiled for investigatory purposes because [the Board’s] motion was not supported by any affidavits, a summary of the so-called investigatory files, or other relevant evidence. The only information [the Board] put forward relative to the first step of the PIA exemption inquiry was its bald assertion that because the Board may refer the matter from some form of administrative prosecution, the files it had compiled were of a law enforcement nature. Id. at 83 , 716 A.2d 258 . The Court further held that the Board failed to meet its burden on the second portion of the two-part test—that disclosure would result in one of the enumerated harms of SG section 10—618(f)(2).

The Court explained that “where an agency fails to ‘demonstrat[e] that the ... documents [sought] relate to any ongoing investigation or ... would jeopardize any future law enforcement proceeding^],’ ” the exemptions would not prevent disclosure. Id. at 87 , 716 A.2d 258 (quoting N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 235 , 98 S.Ct. 2311, 2323 , 57 L.Ed.2d 159 (1978) (alterations in original) (further citations omitted)). Accordingly, because the Board failed to demonstrate that revealing the records would prejudice an investigation, the Court held that the trial court erred in granting the Board’s motion to dismiss. See id. at 91, 716 A.2d 258 . ¹⁶¹ In the instant case, appellees have satisfied the first part of the Fioretti test—that the agency “demonstrate that it legitimately was in the process of or initiating a specific relevant investigative proceeding in order to come under the aegis of the exception.” Id. at 82 , 716 A.2d 258 .

The DHCA investigates violations of the Montgomery County Code and enforces housing standards. See Montgomery County Code § 2-27(4). Davison’s affidavit establishes that appellants were under investigation for violation of the Montgomery County Code. Moreover, David Bowen’s affidavit