Caffrey v. Department of Liquor Control

HARRELL, Judge. In 1997, Montgomery County, Maryland, solicited proposals to operate and manage a county-owned, retail off-sale alcoholic beverage store. 1 Petitioner (Anthony G. Caffrey) submitted a ²⁷⁸ proposal, but was not awarded the contract. Subsequently, Petitioner submitted requests to Respondents (the Montgomery County’s Department of Liquor Control, Board of License Commissioners, Office of Procurement, and Ethics Commission) under the Maryland Public Information Act (“the MPIA”), Maryland Code (1999 Repl.Vol., 2001 Supp.), State Government Article, §§ 10-611-10-628 (“MPIA §§ 10-611-10-628”), 2 for inspection of various documents relating to the ²⁷⁹ relevant proposal and selection process. Respondents produced some of the documents, but withheld others, citing various privileges and grounds for denial available under the MPIA.

Petitioner, in early 2000, filed an action in the Circuit Court for Montgomery County seeking a review of Respondents’ denials of his requests to review the withheld documents. Respondents subsequently released the documents requested by Petitioner, but filed a motion for summary judgment requesting that the Circuit Court uphold their prior decisions not to disclose the disputed documents “as reasonable and justified at the time.” Petitioner, in response, filed a cross-motion for summary judgement seeking an “award of attorney’s fees and actual and punitive damages in accordance with the [MJPIA” based on Respondents’ initial denials and the necessity to initiate the legal action to obtain disclosure of the documents. In the first phase of an agreed upon bifurcated procedure, the Circuit Court held, on 30 October 2000, that the Department of Liquor Control for Montgomery County (“the Department”) was immune from suits for damages, including counsel fees, under Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504. 3 As a result, the Circuit Court refrained from determining whether the Department erred in withholding nineteen documents from Petitioner. With regard to the remaining documents withheld by the Board of License Commissioners (“the Board”), the Office of Procure ²⁸⁰ ment, and the Ethics Commission, the Circuit Court ruled that Montgomery County Charter, § 505 4 did not waive the asserted attorney-client or deliberative executive (interagency) privileges protected under the MPIA and that, therefore, Respondents were entitled to withhold certain documents pursuant to those privileges.

After considering each document individually, the Circuit Court found that six documents were withheld properly and that two documents were withheld improperly from Petitioner. Subsequently, in the second phase of the proceeding, held on 17 January 2001, the Circuit Court denied Petitioner’s motion for counsel fees and costs. In addition, the Circuit Court also dismissed with prejudice Petitioner’s request for actual and punitive damages under the MPIA. . Petitioner appealed to the Court of Special Appeals.

In particular, Petitioner challenged the Circuit Court’s determinations that the Department was immune from an award of counsel fees under Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504, and that Montgomery County Charter, § 505 did not waive the attorney-client privilege and the deliberative executive (interagency) privilege protected in the MPIA. In an unreported opinion, the Court of Special Appeals affirmed the decision of the Circuit Court. We granted Petitioner’s petition for writ of certiorari, Caffrey v. Dep’t of Liquor Control, 368 Md. 239 , 792 A.2d 1177 (2002), to consider the following questions: Did the trial court abuse its discretion in denying an award of counsel fees and costs to Petitioner because it erred as a ²⁸¹ matter of law in its rulings concerning the disclosed documents? A. Does the Montgomery County Department of Liquor Control, which is “immune from all suits for damages” under Courts and Judicial Proceedings Article, Section 5-504 have immunity from an award of attorney’s fees and costs under the Maryland Public Information Act, State Government Article, Section 10 — 623(f)[ 5 ]?

B. Does the Montgomery County Charter, section 505 waive attorney-client privilege and deliberative privilege so that these exemptions cannot be asserted to sustain an otherwise permissible denial under Section 10-618 of the Maryland Public Information Act? I. Relevant Factual Background As described by the Court of Special Appeals in its unreported opinion in the instant case, [i]n 1997, Montgomery County requested proposals to operate and manage county owned liquor stores. The request for proposals provided that any offeror should submit a proposal outlining a plan for the operation and management of stores, a statement of the offeror’s retail business and management expertise, and a staffing plan. If an offeror received a grade of 70 percent or higher, the offeror could submit a cost proposal.

The award was to be made to the offeror submitting the lowest price proposal. [Petitioner] was an offeror, and he was not awarded the contract. On October 29, 1997, [Petitioner] filed a bid protest, and on February 4, 1998, he filed a complaint with the County Ethics Commission. The latter was based on the fact that a principal in the entity which was awarded the bid, Mr. Leonard Kligman, sat on the Board of License Commission ²⁸² ers. The bid protest was dismissed.

Subsequently, Mr. Kligman resigned from the Board, acknowledged a violation of the ethics laws, and was reprimanded by the Ethics Commission. Following those events, Petitioner, pursuant to the MPIA, submitted a number of requests to Respondents for inspection of various documents relating to the relevant procurement process. 6 Respondents granted Petitioner access to a number of documents, but also denied Petitioner access to certain documents. More specifically, the Department denied Petitioner access to over thirty documents, the Board denied him access to three documents, and the Office of Procurement and the Ethics Commission each denied him access to four documents. On 3 March 2000, Petitioner filed a complaint in the Circuit Court for Montgomery County against Respondents requesting that the Circuit Court “review the denials by the custodians of records for agencies and units of Montgomery County, Maryland of requests by [Petitioner] to review documents pursuant to” the MPIA.

Over a month later, Petitioner filed an amended complaint in the Circuit Court. Respondents, on 17 May 2000, filed an answer to Petitioner’s amended complaint. In their answer, Respondents requested that the Circuit Court “[dismiss [Petitioner’s] ... amended complaint,” “[d]eny [Petitioner] all relief requested,” “[e]nter judgment in favor of the [Respondents],” and “[a]ward the [Respondents] costs and reasonable attorneys’ fees.” Petitioner, on 25 July 2000, resubmitted his document requests to Respondents. ' The County Attorney’s Office for Montgomery County, on behalf of the records custodians, granted Petitioner’s resubmitted requests. As described in a ²⁸³ letter to Petitioner from the Chief of the Division of General Counsel in the County Attorney’s Office, dated 28 August 2000, [although the original decision to deny [Petitioner] access to these documents was justified under the circumstances at the time of [Petitioner’s] earlier [M]PIA requests, recent press coverage has generated the potential for larger public concern arising over the 1997 liquor store procurement, and has shifted the analysis concerning whether release of the previously denied documents to [Petitioner] would not be in the public interest.

Because they have concluded that releasing these documents will help the general public better understand what transpired under the liquor store procurement, the Office of Procurement, the Board of License Commissioners, and the Department of Liquor Control have authorized this officer to release those documents. A pre-trial conference was held on 30 August 2000, at which the hearing judge agreed to the parties’ request to bifurcate the proceedings. As described in Petitioner’s pre-trial statement, the parties “agreed to jointly propose a bifurcated procedure ... to focus on the threshold issue of whether the interposed [M]PIA exemptions [we]re proper.” Pursuant to that procedure, “[a]fter oral argument and the Court’s review and ruling on the validity of the exemptions, subsequent proceedings consistent with that ruling would follow, including proceedings as appropriate to establish [Respondents’] liability for damages.” On 13 October 2000, Respondents filed a motion for summary judgment. In that motion, Respondents argued that the Department was “ ‘immune from all suits for damages’ ” (quoting Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504) and maintained, therefore, that the Circuit Court “need not address whether the [Department’s] asserted exemptions to disclosure of the documents encompassed in [Petitioner’s] ... [M]PIA request were appropriate because it would only be rendering an advisory opinion.” Alternatively, Respondents addressed the propriety of their decisions to withhold certain documents from Petitioner and requested ²⁸⁴ .that the Circuit Court uphold those decisions “as reasonable and justified.” Petitioner filed a cross-motion for summary judgment.

In that motion, Petitioner sought an order that all withheld documents “be released immediately” and, as to released documents, Petitioner sought an “award of attorney’s fees and actual and punitive damages in accordance with the [M]PIA for [Respondents’] willful and knowing refusal to release the[ ] non-exempt documents.” Replying to Respondents’ argument that the Circuit Court need not address the Department’s exemptions to disclosure of the documents, Petitioner contended that “there [wa]s no basis to find that the [Department’s] immunity from ‘suits for damages’ nullifies the [Department’s] exposure to a penal assessment of ‘counsel fees’ and ‘litigation costs’ under the [M]PIA.” Petitioner also argued that Montgomery County Charter, § 505 waived “the permissible [M]PIA exemptions asserted by” the Department and, therefore, maintained that the Department never had “a basis to withhold the documents at issue.” At the start of the hearing on Respondents’ motion for summary judgment, held on 30 October 2000, the Circuit Court addressed the disputed immunity of the Department. As in their motion for summary judgment, Respondents argued that the Department was immune from suit and that, therefore, “thex'e really [wa]s no need to decide or discuss those specific documents [withheld by the Department] and the justifications for their exemption from disclosure ... because the issue [wa]s advisory.” Petitioner, on the other hand, maintained that to constnxe the Department’s “immunity to prevent statutorily imposed quasi-penal sanctions such as attorneys’ fees [and] actual and punitive damages” woxxld invalidate “the guts, the teeth of the [M]PIA.” The Circuit Court, after hearing these arguments, concluded that “[d]am-ages are damages, whether they are attorneys’ fees or compensatox-y or whatever they are, and ... read into [§ 5-504] that they [ (the Department) ] do have, in fact, that immunity.” ²⁸⁵ The Circuit Court proceeded to consider the propriety of the decisions of the Board, the Office of Procurement, and the Ethics Commission to withhold certain documents from Petitioner. In so doing, the Circuit Court ruled that the language of Montgomery County Charter, § 505" did “not indicate an intent to waive attorney/client privilege.” As a result, the Circuit Court determined that four documents were properly withheld by the Board pursuant to the attorney-client privilege. 7 In addition, the hearing judge also concluded that the Ethics Commission properly withheld one document as a deliberative interagency memorandum 8 and that the Office of Procurement properly withheld one document that was beyond the scope of Petitioner’s request. On the other hand, the hearing judge ruled that the Ethics Commission and the Office of Procurement each withheld improperly one document.

With regards to the propriety of the Department’s withholding of nineteen documents, the Circuit Court made the following ruling: ²⁸⁶ [I]n view of the Court’s ruling that the [Department] has immunity as does its custodian, the Court has not reviewed whether or not these particular documents should or should not have been supplied under the requests for information and has made no decision on the theory that it is unimportant since the Court has ruled that the [Department] has immunity as does its custodian. Obviously, if the Court is in error and it comes back then the Court would be required to review it. On 17 January 2001, the Circuit Court heard Petitioner’s cross-motion for summary judgment seeking an award of counsel fees and costs. At the start of the hearing, the hearing judge articulated the “substantive test” for determining whether an individual is entitled to counsel fees and costs under the MPIA.

According to the hearing judge, “there were three issues: Was the plaintiff a substantially prevailing party under the [MPIA]? If the plaintiff was a substantially prevailing party, is the plaintiff eligible for attorneys’ fees and costs? And is the plaintiff thereafter entitled to the same?” As to whether the plaintiff was “a substantially prevailing party,” the Circuit Court noted three important considerations— “whether the lawsuit was required to gain the information, whether there was á nexus between the lawsuit and the release of the information,” and whether the documents it found to be improperly withheld were “key documents.” Under the entitlement issue, the Circuit Court identified three sub-issues: (1) “Was there a public benefit from [Petitioner’s] case versus a private benefit to the plaintiff?”; (2) What was the nature of Petitioner’s interest in the release of the records?; and (3) “Did the Government and its four agencies have a reasonable basis for withholding the record?” 9 After hearing oral arguments, the Circuit Court announced the following conclusions: ²⁸⁷ As to the first issue; namely, was [Petitioner] a substantially prevailing party under the Maryland Public Information Act, the Court believes that the lawsuit can be regarded as necessary to gain the information. The Court believes that there was a nexus between the lawsuit and the release of the information of the documents in the late summer of 2000.

Finally, the Court accepts that the score sheets ..., documents for the 1997 liquor store procurement, were “key” documents because they revealed to some degree the basis for the evaluation of each proposal. As to the second issue, [Petitioner] does become “eligible” for attorneys’ fees and costs since by substantially prevailing in his lawsuit with regards to production of the key documents. The third issue, though, is the critical issue; namely, [Petitioner’s] entitlement to attorneys’ fees and costs. [T]he Court finds that there was a public benefit, but it is the Court’s belief that the public benefit from this lawsuit was marginal at best. Now in the next issue, the Court finds that [Petitioner] really had little interest in the release of the records because he was the fourth bidder out of the sixth bidder and was not going to improve his rank to the extent that any release of documents was going to be meaningful to him in securing any operation of a County liquor store.

The final issue is, Did the Government and its four agencies have a reasonable basis for withholding the record. The arguments go back and forth on this issue, but the Court notes that the Ethics Commission and the procurement agency both sought legal advice from the Office of the County Attorney, received the legal advice and literally followed it. ²⁸⁸ The Court notes that it earlier held that the [Department] was immune and that therefore there was a reasonable basis in withholding any of the documents that were sought from the [Department], The [Board] was not ordered to produce any documents to the best of the Court’s recollection unless there was a reasonable basis for withholding exhibits 31 through 34.[ 10 ] So finally, gentlemen, under the Kerwin [sic] versus Diamondback analysis, the Court, in the exercise of its discretion, does not find, having answered all of the issues, that [Petitioner] is entitled to attorneys’ fees and costs and dismisses its motion for award of attorneys’ fees and costs. Petitioner filed a timely appeal to the Court of Special Appeals. In its brief, Petitioner maintained that “the trial court’s exercise of discretion was flawed because two of its underlying rulings were not legally correct.” Specifically, Petitioner argued that the Circuit Court incorrectly ruled that the Department “was immune to an award of counsel fees” under Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504, and that “the attorney-client privilege and deliberative privilege (as applied to letters and memoranda) was not waived” by Montgomery County Charter, § 505 and could be asserted by Respondents.

Therefore, according to Petitioner, “the proper remedy [wa]s to remand for reconsideration on the issue of attorney fees.” Respondents, on the other hand, maintained that “the language of [Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504] plainly reflects a legislative intent that no suits for damages or liability could be pursued against the Department,” including a suit for counsel fees. In the alternative, Respondents posited that “[e]ven without immunity,” the fact that the Department “acted no differently than the other agencies ... fully supported a conclusion that the Department ²⁸⁹ ... did not willfully violate the MPIA.” Thus, “[a]n award of costs, including attorney’s fees, did not become appropriate in this instance.” Finally, Respondents argued that Montgomery County Charter, § 505 did not “eliminate executive privilege and attorney-client privilege,” but, in any event, observed that the Court “need not reach a definitive decision on the meaning of the charter, but only whether the County’s interpretation of the Charter was reasonable.” In an unreported opinion, the Court of Special Appeals affirmed the judgment of the Circuit Court. On the issue of the Department’s immunity, the intermediate appellate court noted that “subsection (2) of section 5-504 ma[de] it clear that the intent of the Legislature was to grant general immunity to the [Department], except for suits for the enforcement of contracts.” Thus, it resolved that the Circuit Court correctly concluded that the Department was immune from a suit for counsel fees and costs. Regarding the meaning of Montgomery County Charter, § 505, the Court of Special Appeals deemed it unnecessary “definitively [to] interpret the charter provision.” According to the intermediate appellate court, because Petitioner was challenging the denial of counsel fees and costs, rather than damages, the “specific question before [it wa]s whether [Respondents] had a reasonable basis in law to withhold the documents.” Based on its reading of § 505, a “reasonable interpretation of that section is that it does not waive privileges existing at common law or by statute.” Therefore, the Court of Special Appeals found no abuse of discretion.

II

A. Generally, the decision whether to award counsel fees to an eligible party under the MPIA rests within the sound exercise of discretion by the trial judge. See Kirwan v. The Diamondback, 352 Md. 74, 95-96 , 721 A.2d 196, 206 (1998) (noting that in a case involving the MPIA, “the award of counsel fees to a prevailing complainant is within the discre ²⁹⁰ tion of the trial court.”); Kline v. Fuller, 64 Md.App. 375, 388 , 496 A.2d 325, 332 (1985) (explaining in a case involving the MPIA that, “[a] decision on whether to award counsel fees to an eligible party resides in the discretion of the trial judge.”). Thus, absent a showing of abuse of that discretion or a predicate erroneous legal conclusion, the determination to award or deny such fees generally will not be disturbed on appeal. In this case, prior to exercising its discretion in determining whether to award Petitioner counsel fees, the Circuit Court made two legal determinations.

Specifically, it found that the Department was immune from liability for an award of counsel fees under Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504, and it refused to interpret Montgomery County Charter, § 505 as waiving the privileges permitting the withholding of certain documents protected in the MPIA. Arguably, had the Circuit Court ruled differently on these issues, it may have had a larger number of improperly withheld documents before it for consideration in its exercise of discretion regarding the counsel fees. In light of the potential effect that the Circuit Court’s preliminary rulings on Md.Code (1998 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-504 and Montgomery County Charter, § 505 may have had on its subsequent discretionary determination to deny Petitioner an award of counsel fees, our review in this matter appropriately focuses on the Circuit Court’s conclusions of law regarding § 5-504 and § 505. We review those rulings de novo.

See J.L. Matthews, Inc. v. Md.-Nat’l Capital Park and Planning Comm’n, 368 Md. 71, 92 , 792 A.2d 288, 300 (2002) (“[W]hen the trial judge’s ruling involves a legal question, we review the trial court’s ruling de novo.”) (citing Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609, 612 (2002) (“[0]ur Court must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.”) (citations omitted)); In re Mark M., 365 Md. 687, 704-05 , 782 A.2d 332, 342 (2001) (finding that where a “trial court has committed an error of law, [it is] to be reviewed by appellate courts de novo”). ²⁹¹ B. Maryland Code (1998 Repl.Vol), Courts and Judicial Proceedings Art., § 5-504 (“ § 5-504”) provides that “[t]he Department of Liquor Control for Montgomery County shall be ... (1) Immune from all suits for damages; and (2) Subject to suit only for the enforcement of contracts made by the Department of Liquor Control for Montgomery County.” Pursuant to § 10-623(d) of the MPIA, however, [a] defendant governmental unit is liable to the complainant for actual damages and any punitive damages that the court considers appropriate if the court finds that any defendant knowingly and willfully failed to disclose or fully to disclose a public record that the complainant was entitled to inspect under ... Part III of this subtitle [(the MPIA)]. In addition, as provided in § 10-623(f) of the MPIA, “[i]f the court determines that the complainant has substantially prevailed, the court may assess against a defendant governmental unit reasonable counsel fees and other litigation costs that the complainant reasonably incurred.” Respondents assert that the immunity “from all suits for damages” granted to the Department in § 5-504 includes immunity from actual and punitive damages, see MPIA § 10-623(d), and counsel fees, see MPIA § 10-623(f).

According to Respondents, “the more specific grant of immunity from liability and damages to the Department ... supercedes the general remedies available under the MPIA.” Petitioner, on the other hand, points out that, pursuant to the “American Rule,” “ ‘damages’ sought in a suit do not include attorney fees.” Petitioner contends that “[i]t would not be unreasonable for the Legislature to reserve to the courts the ability to regulate the activities of the Department ... via an assessment of counsel fees in the event of its failure to comply with the MPIA.” For the following reasons, we agree with Petitioner. In determining the meaning of “damages” in § 5-504, we are guided by the “ ‘cardinal rule of statutory interpretation’ ” that we endeavor to “ ‘ascertain and effectuate the intention of the legislature.’ ” Md. Dep’t of the Env’t v. ²⁹² Underwood, 368 Md. 160, 175 , 792 A.2d 1130, 1139 (2002) (quoting Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995) (citation omitted)). In that attempt, “our first recourse is to the words of the statute, giving them their ordinary and natural import.” Garnett v. State, 332 Md. 571, 585 , 632 A.2d 797, 804 (1993) (citing Fairbanks v. McCarter, 330 Md. 39, 46 , 622 A.2d 121, 125 (1993); NCR Corp. v. Comptroller, 313 Md. 118, 124 , 544 A.2d 764, 767 (1988)). Thus, “ ‘where statutory provisions are clear and unambiguous, no construction or clarification is needed or permitted, it being the rule that a plainly worded statute must be construed without forced or subtle interpretations designed to extend or limit the scope of-its operation.’ ” Giant Food, Inc. v. Dep’t of Labor, Licensing and Regulation, 356 Md. 180, 189 , 738 A.2d 856, 861 (1999) (quoting Tucker v. Fireman’s Fund Ins.

Co., 308 Md. 69, 73-75 , 517 A.2d 730, 731-32 (1986)). Pursuant to the eponymous “American Rule,” as a “matter of substantive law ..., damages do not include counsel fees.” Hess Constr. Co. v. Bd. of Educ. of Prince George’s County, 341 Md. 155, 165 , 669 A.2d 1352, 1357 (1996). See also Megonnell v. United Services Auto.

Ass’n, 368 Md. 633, 659 , 796 A.2d 758, 774 (2002) (“This State adheres to the ‘American Rule’ which generally requires that each party be responsible for their own counsel fees.”); St. Luke Evangelical Lutheran Church, Inc. v. Smith, 318 Md. 337, 344 , 568 A.2d 35, 38 (1990) (explaining that the “American Rule” “prohibits the prevailing party in a lawsuit from recovering his attorney’s fees as an element of damages”) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 , 95 S.Ct. 1612, 1616 , 44 L.Ed.2d 141 (1975)). The “American Rule” “evolved from the English Rule,” under which “a successful plaintiff could obtain the costs of litigation as an element of damages.” St. Luke, 318 Md. at 344 , 568 A.2d at 38 . As we explained in St. Luke, [t]he English Rule was popular in America before the Revolution.

Originally, the pre-colonial statutes which fixed the scale of recoverable court costs satisfied a substantial portion of the attorney’s fees incurred by a successful ²⁹³ litigant. This was so even though local statutes rigidly limited the amount recoverable as attorney’s fees. Of course, nowhere in this country have statutorily-fixed attorney’s fees been revised to keep pace with the fall in the value of money. Such legislative reluctance to keep pace suggests that the principle of full compensation for litigation expenses never firmly took hold in this country.

This may best be explained by a historic distrust of lawyers prevalent throughout the colonial era, and a then growing preference of the organized bar for fee schedules set by a free market and not hostile legislatures. Si. Luke, 318 Md. at 345 , 568 A.2d at 38-39 (footnote omitted) (citations omitted). Exceptions to the “general rule that counsel fees, incurred by the prevailing party in the very litigation in which that party prevailed, are not recoverable as compensatory damages against the losing party” are “quite rare,” but do exist.

Hess, 341 Md. at 160 , 669 A.2d at 1354 . For example, counsel fees may be awarded when (1) “parties to a contract have an agreement to that effect”; (2) “there is a statute which allows the imposition of such fees”; (3) “the wrongful conduct of a defendant forces a plaintiff into litigation with a third party”; and (4) “a plaintiff is forced to defend against a malicious prosecution.” St. Luke, 318 Md. at 345-46 , 568 A.2d at 39 (citations omitted). While it is true that the “American Rule” may not have been referred to as such in the Court’s jurisprudence at the time § 5-504 was enacted, 11 Petitioner correctly observes that ²⁹⁴ this Court nonetheless had recognized the principles underlying the rule at the time of the original immunity enactment. At the beginning of the twentieth century, we recited the “general rule” that “costs and expenses of litigation, other than the usual and ordinary Court costs, are not recoverable in an action for damages ...,” McGaw v. Acker, Merrall and Condit Co., 111 Md. 153, 160 , 73 A. 731, 734 (1909), and, as early as 1903, it was “well settled in this State tha[t] the costs of a suit d[id] not, apart from statutory direction[,] include the counsel fees of the successful party.” 12 Singer v. The Fid. and Deposit Co. of Md., 96 Md. 221, 224 , 54 A. 63, 63 (1903) (citing Wallis v. Dilley, 7 Md. 237, 249 (1854); Corner v. Mackintosh, 48 Md. 374, 390 (1878); Wood v. State, 66 Md. 61, 68 , 5 A. 476, 478 (1886)).

As observed in St. Luke, 318 Md. at 346 , 568 A.2d at 39 , “[mjovement away from a strict application of the American Rule began in this country as early as the 19th century, when legislatures launched [statutory] attacks against it.” (Emphasis added). In the absence of any indication to the contrary, we presume that the Legislature was mindful in 1941, at the time it enacted the predecessor of § 5-504, of the generally accepted proposition that counsel fees are different than damages ordinarily. In support of this, we note that in the years subsequent to the enactment of § 5-504, the Article containing the provision was amended a number of times, but the actual language of the provision was never amended substantively. See Chapter ²⁹⁵ 501, Acts of 1947 (“revising and re-codifying the alcoholic beverages laws of th[e] State, and generally rearranging and simplifying all laws having to do with alcoholic beverages”); Chapter 956, Acts of 1978 (amending various subsections of the “Alcoholic Beverages” Article); Chapter 546, § 3 of the Acts of 1990 (enumerating separately the Department’s immunity from all suits for damages and its capacity to be sued for the enforcement of contracts made by it); Chapter 14, § 9 of the Acts of 1997 (renumbering sections and placing them under new subtitles).

Although not wholly dispositive of this issue, the Legislature’s failure to amend § 5-504, especially following our explicit adoption of the “American Rule,” further indicates to us the legislature’s intention that “damages” as used in § 5-504 not include counsel fees. See NCR Corp., 313 Md. at 126 , 544 A.2d at 767 (“The ‘General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute ....’”) (quoting Bd. of Educ., Garrett County v. Lendo, 295 Md. 55, 63 , 453 A.2d 1185, 1189 (1982) (omission in original)). Cf State v. Bell, 351 Md. 709, 721 , 720 A.2d 311, 317 (1998) (quoting Demory Bros. v. Bd. of Pub. Works, 273 Md. 320, 326 , 329 A.2d 674, 677 (1974), for the proposition that the rejection of an amendment by the Legislature “ ‘strengthens the conclusion that the Legislature did not intend to achieve the results that the amendment would have achieved, if adopted.’ ”); NCR Corp., 313 Md. at 125 , 544 A.2d at 767 (“While a committee’s rejection of an amendment is clearly not an infallible indication of legislative intent, it may help our understanding of overall legislative history.”).

Respondents argue that our interpretation of “damages” as used in § 5-504 should be influenced by our holding in AS. Abell Publ’g Co. v. Mezzanote, 297 Md. 26, 40-41 , 464 A.2d 1068, 1075 (1983), in which we concluded that the Maryland Insurance Guaranty Association (“the MIGA”) could not be assessed counsel fees and costs under the MPIA. The determination in that case, however, was dependant on Md.Code (1957, 1979 Repl.Vol., 1982 Cum.Supp.), Art. 48A, § 517 (re ²⁹⁶ pealed by Chapter 35, Acts' of 1997), which provided that “[t]here shall be no liability on the part of and no cause of action of any nature shall arise against” the MIGA “for any action taken by them in the performance of their powers and duties under this subtitle.” (Emphasis added). Addressing Respondents’ reliance on this case, the Court of Special Appeals noted that Mezzanote “is not controlling because the immunity statute ... granted immunity from ‘liability’ whereas [§ ] 5-504 grants immunity from ‘all suits for damages.’ ” We agree with that analysis.

Therefore, the Department is not immune, based on § 5-504, from an award of costs, including counsel fees, under the MPIA. In this case, after ruling that the Department was immune from suits for counsel fees, the Circuit Court explicitly chose not to consider the propriety of the Department’s withholding of nineteen documents from Petitioner. See supra pages 285-86. Arguably, had the trial court determined that any of those nineteen documents were withheld improperly, its subsequent determination regarding counsel fees may have been affected.

See infra pages 298-99. For that reason, we must remand this case to the Circuit Court for further consideration. C. Pursuant to the MPIA, there are some records for which the custodian 13 must deny inspection. See MPIA §§ 10-615-10-617 (enumerating those records that the custodian “shall deny”).

For example, as provided in MPIA § 10-615, [a] custodian shall deny inspection of a public record or any part of a public record if: ²⁹⁷ (1) by law, the public record is privileged or confidential; or (2) the inspection would be contrary to: (i) a State statute; (ii) a federal statute or a regulation that is issued under the statute and has the force of law; (iii) the rules adopted by the Court of Appeals; or (iv) an order of a court of record. As delineated in MPIA § 10-618, there are also records for which the custodian may deny inspection, “if the custodian believes that such inspection would be contrary to the public interest.” Office of the Governor v. Washington Post, 360 Md. 520, 550-51 , 759 A.2d 249, 266 (2000). Relevant here, MPIA § 10-618(b) mandates that, “the custodian may deny inspection by the applicant of ... any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit.” 14 At issue in this case is the effect of the “Right to Information” section of the Montgomeiy County Charter on the availability to the custodian of Montgomery County’s public records of the MPIA’s mandatory and permissible denials. See Montgomery County Charter, § 505 (“505”).

It provides that: [a]ny person shall have the right to inspect any document, except confidential police records, personnel records, or records of a confidential private nature as defined by law. The Council may adopt reasonable regulations for such inspection. A certified copy of any such document shall be ²⁹⁸ furnished upon payment of a reasonable fee established by such regulations. This section shall not apply to a document or other material obtained or prepared in anticipation of litigation or for use in legal proceedings to which the County is a party.

Id. According to Petitioner, this section creates “much narrower” exemptions from disclosure “than those available under the MPIA,” and, “in effect!,] waives the broader, permissible exemptions under the MPIA,” which Petitioner contends includes “the inter/intra-agency memoranda exemption and the attorney-client privilege.” 15 Respondents, on the other hand, maintain that “[a]n analysis of § 505 in the context of the charter as a whole, coupled with a long and consistent County practice of asserting executive privilege and attorney-client privilege, supports the conclusion that § 505 does not waive these critically important protections.” In addition, they argue that we “need not reach a definitive meaning of the charter, but only whether [Respondents’] interpretation of the law was reasonable, because the analysis conducted for an award of attorney’s fees includes a determination of whether the agency’s denial had a reasonable basis in law.” See Kirwan, 352 Md. at 96 , 721 A.2d at 207 (identifying “whether the agency’s withholding of the information had a reasonable basis in the law” as a factor in determining whether to award counsel fees). To begin, contrary to Respondents’ position, our review in this matter is not limited to whether Respondents’ ²⁹⁹ interpretation of § 505 was “reasonable.” Pursuant to MPIA § 10-623(1), after a trial court determines that a complainant “substantially prevailed” with respect to the records it sought, it “may” award counsel fees. As the Court of Special Appeals explained in Kline, 64 Md.App. at 385 , 496 A.2d at 330 , “[although an actual judgment in claimant’s favor is not required” to meet the “threshold of substantial prevailance,” “it must be demonstrated that prosecution of the lawsuit could reasonably be regarded as having been necessary in order to gain release of the information,” that “there was a causal nexus between the prosecution of the suit and the agency’s surrender of the requested information,” and that the complainant recovered “key documents.” Then, “[o]nce the court determines that the complainant has substantially prevailed, that litigant becomes ‘eligible’ but not ‘entitled’ to an award of reasonable attorney fees and costs.” Id.

In determining whether to award counsel fees, the trial court may consider “ ‘the benefit to the public, if any, derived from the suit,’ ” “ ‘the nature of the complainant’s interest in the released information,’ ” and “ ‘whether the agency’s withholding of the information had a reasonable basis in the law.’ ” Kirwan, 352 Md. at 96 , 721 A.2d at 207 (quoting Kline, 64 Md.App. at 386 , 496 A,2d at 331 (citation omitted)). In this case, pursuant to its ruling that the language of § 505 did not indicate an intent to waive the attorney-client privilege or, by implication, the interagency memorandum exception, the Circuit Court concluded, in part, that the Board properly withheld four documents (attorney-client privilege) and that the Ethics Commission properly withheld one document (deliberative interagency memorandum). Arguably, had the Circuit Court concluded that the Board and the Ethics Commission were not entitled to withhold those documents on the asserted bases, its determination as to whether to award Petitioner counsel fees may have been affected. For instance, while a “reasonable basis in the law for withholding” documents does not require that an agency be legally correct in its withholding (see, e.g., Kirwan, 352 Md. at 96-97 , 721 A.2d at 207 (finding that a University’s withholding of information was ³⁰⁰ “not entirely unjustified” where the definition of “ ‘education records’ in the federal Family Educational Rights and Privacy Act is broad,” there “have been no prior reported Maryland cases dealing with the particular issues” in the case, there “is not very much case-law elsewhere concerning the meaning” of the term, and “the federal agency which administers the federal statute supported the University as to some of the records involved”)), the Circuit Court may not have concluded so readily that Respondents had a “reasonable basis in the law for withholding” the documents here had it interpreted § 505. as waiving the privileges invoked by Respondents.

For that reason, we shall not focus simply on whether Respondents’ interpretation of § 505 was “reasonable,” but shall interpret § 505. In asceifaining the meaning of Montgomery County Chax'ter, § 505, we begin by examining the plain meaning of its terms.