Comptroller of the Treasury v. Immanuel

NAZARIAN, J. The Maryland Uniform Disposition of Abandoned Property Act 1 (the “Abandoned Property Act”) directs the Comptroller of the Treasury (“Comptroller”) to maintain a division for managing unclaimed property. The Abandoned Property Act renders the Comptroller the legal custodian of millions of dollars’ worth of unclaimed property, including stocks, bonds, savings accounts, security deposits, contents of safe deposit ²⁶² boxes, insurance proceeds, and other valuables that are reported as unclaimed by banks and other financial institutions. 2 Henry Immanuel is engaged in the business of locating the owners of unclaimed property held by the Comptroller and, then, for a fee, reuniting them with their former possessions. To further his business, Mr. Immanuel asked the Comptroller, under the Public Information Act, 3 to produce to him a list of the names and addresses of those entitled to the 5,000 most valuable property accounts, “formatted from largest account values to smallest account values,” but excluding the precise value of each item. The Comptroller denied his request on the ground that the request would require him to disclose the “financial information” of property owners to a third party.

In the circuit court, the Comptroller also argued that producing the data as Mr. Immanuel requested would require the Comptroller to “create” a new record, which the Public Information Act does not require him to do. Mr. Immanuel filed a petition for judicial review of the Comptroller’s decision in the Circuit Court for Wicomico County. After a hearing, the circuit court decided that Mr. Immanuel’s request should have been granted and ordered that the Comptroller “provide the unclaimed property records in the manner requested.” The Comptroller appeals, renewing his claims that the request would require the Comptroller to “create” a new public record and require the Comptroller to disclose the financial information of property owners to third parties. We disagree with the Comptroller that Mr. Immanuel’s request compels the Comptroller to “create” a new public record, and we hold that, in light of the Abandoned Property Act, the request seeks information that the Comptroller is required to disclose.

That said, we also hold that a list sorted by dollar value would reveal additional individual financial information Mr. Immanuel is not entitled to have, and we find ²⁶³ that his request may be overbroad in one other way as well. So although Mr. Immanuel is entitled to the bulk of the information he has requested, we reverse the judgment of the circuit court and remand for further proceedings for the limited purpose of determining the precise scope and format of the list the Comptroller must produce. I. BACKGROUND In his role as legal custodian of millions of dollars’ worth of unclaimed property, the Comptroller enters and stores in a database information regarding the property he is holding and who might be entitled to claim it. As the Comptroller receives each piece of abandoned property, his staff logs data about the property, its value, and the likely owner into the Comptroller’s database.

The Comptroller is required by the Abandoned Property Act to publish annually, in local newspapers, the names and last known addresses of those individuals who appear to be the owners of property valued at $100 or more, 4 although the published list does not disclose either the nature of unclaimed items of property or their value. Mr. Immanuel is a “tracer,” someone who locates the owners of unclaimed property held by the Comptroller and, for a fee, assists those people in obtaining their property. On November 3, 2011, Mr. Immanuel sent a letter to the Comptroller requesting “a printout of all unclaimed property accounts” that had been unclaimed for two years or longer. In ²⁶⁴ addition to requesting publicly available information—specifically, the names and last-known addresses of those entitled to the property—he asked the Comptroller to format the list “from largest account values to smallest account values” and to provide him “with the listing of the top 5,000 accounts after this formatting is done.” In his request, Mr. Immanuel acknowledged that the Public Information Act prohibited him from receiving “information concerning the specific value of each account or a description of the property,” and he asked that, once the list was sorted, the specific values be removed.

Although the Comptroller, with the help of his information technology (“IT”) department, has the ability to perform Mr. Immanuel’s request, the Comptroller denied it. Since 1978, Mr. Immanuel has submitted requests asking for lists of names and addresses sorted by value. The Comptroller granted those requests until 1992. That year, however, the Attorney General issued an opinion stating that the Public Information Act prohibited the Comptroller from disclosing the monetary value of individual items of unclaimed property to members of the public. 5 Mr. Immanuel, nonetheless, made five other requests in the years since, all five of which, including the one at issue, the Comptroller denied.

Mr. Immanuel filed a petition seeking judicial review of the Comptroller’s most recent denial in the Circuit Court for Wicomico County. The court held a hearing and took testimony from Mr. Immanuel and Eric Eichler, the Assistant Manager of the Comptroller’s Unclaimed Property Unit. According ²⁶⁵ to Mr. Eichler, the Comptroller’s IT staff logs information about each piece of unclaimed property into a database as the Comptroller receives it. From there, the IT staff can extract and sort data from the database, and does so for non-agency requesters with enough regularity that he maintains (and publishes on a “form letter”) a schedule of fees.

Mr. Eichler acknowledged that the Comptroller maintains “a list available for the public if they need to, but it’s not sorted by dollar value.” He also testified that the Comptroller extracts and produces lists from this database in batches of 10,000 records in the normal course, for which it charges $500, 6 and that the Comptroller’s fee schedule includes at least some forms of sorting. (“Q. But if my client were willing to pay for the [dollar-value] sort, doesn’t this fee schedule cover that potential? A. Yes, depending on what the sort is, I assume.”) At the conclusion of the hearing, the circuit court declared that “[tjaking the additional step of formatting the list before redacting the financial information does nothing to reveal prohibited information.” Then, observing that “disclosure of public records is favored” in Maryland, the court granted Mr. Immanuel the relief he sought and ordered the Comptroller to provide him with the information in the format he had requested.

II

DISCUSSION The Public Information Act grants the public the right to inspect public records in a way that favors public access. Md. Dep’t of State Police v. Md. State Conference of NAACP Branches, 190 Md.App. 359, 367 , 988 A.2d 1075 (2010). Under the act, “ ‘[p]ublic record’ means the original or any copy of any document material that: (i) is made by a unit or instrumentality of the State government ... and (ii) is in any form, including: ... 2. a computerized record,” SG § 10- ²⁶⁶ 611(h), and the Comptroller does not dispute that the information Mr. Immanuel seeks satisfies that definition. At the same time, the Public Information Act does not “require a custodian to create, compile, or program a new record” 7 upon request by a member of the public, SG § 10-620(a)(2)(iv)(3), and it prohibits a custodian of public records from disclosing the part of a record that contains “information about the finances of an individual.” SG § 10-617(f)(2).

We review a circuit court decision reviewing an agency’s response to a Public Information Act request to determine whether that court had an adequate factual basis for the decision it rendered and whether the decision the court reached was clearly erroneous. Haigley v. Dep’t of Health & Mental Hygiene, 128 Md.App. 194, 210 , 736 A.2d 1185 (1999). We review de novo any purported errors in interpreting the Act itself. Id.

The Comptroller presents two questions on appeal: 1. Did the circuit court err in ordering the Comptroller to disclose a record that did not exist and that the Office of the Comptroller would have to create, when the Public Information Act does not require the creation of records? 2. Did the circuit court err in ordering the Comptroller to disclose a record containing financial information about individuals, when the Public Information Act prohibits disclosure of such information? At its core, Mr. Immanuel’s request seeks information that the Comptroller is required to disclose.

As we explain, the request overreaches to the extent it asked for the data to be rank-ordered by value and, potentially, by asking for the top 5,000 claims rather than tying the request to the $100 threshold prescribed in the Abandoned Property Act. See CL § 17-311(c). But the marginal overreaching is not a reason to deny the request altogether, as the Comptroller did. To the con ²⁶⁷ trary, the Public Information Act directs State agencies to “permit inspection of any part of the record that is subject to inspection and is reasonably severable.” See SG § 10-614(b)(3)(iii); see also Governor v. Washington Post Co., 360 Md. 520, 545 , 759 A.2d 249 (2000); Prince George’s County v. Washington Post Co., 149 Md.App. 289, 320 , 815 A.2d 859 (2003).

Rather than reversing the judgment of the circuit court outright, which has the effect of affirming the Comptroller’s decision to deny the request in toto, we reverse and remand for further proceedings for the purpose of determining the appropriate scope and mechanics of the Comptroller’s production. We reach this result for two reasons. First, although the Comptroller has preserved his argument that Mr. Immanuel’s request seeks a new public record, we disagree with it. According to the Comptroller’s own witness, the Comptroller gathers and maintains the information Mr. Immanuel has requested in the normal course and stores that information in a database from which the information can be (and is, for a price) extracted, sorted, and produced.

The process of extracting or sorting the information Mr. Immanuel requests from this database is no different in principle than the process of producing something less than the full contents of a paper file. Mr. Immanuel must, of course, pay the appropriate fee (the Comptroller maintains a fee schedule for exactly this purpose and has not argued that the request is not feasible or would cause him an undue burden), but the Comptroller may not withhold information contained in his abandoned property claims database on the ground that extracting or sorting otherwise responsive data from that database would require him to create a new public record. Second, we cannot reconcile the statutory disclosure requirements of the Abandoned Property Act with the Comptroller’s decision to withhold the identical information under the Public Information Act. Specifically, although the Public Information Act forbids the Comptroller from providing a list of abandoned property claims because that list would reveal individual financial assets, see SG § 10-617(f)(2), the Abandoned Property Act requires the Comptroller to publish annu ²⁶⁸ ally an alphabetical list of abandoned property owners with claims greater than $100, see CL § 17-311(c).

The circuit court record does not reveal whether Mr. Immanuel has requested more information than the Comptroller is required to publish—neither he nor the Comptroller produced or proffered any evidence from which the circuit court (or we) could tell whether the 5,000 largest claims fall above or stray below the $100 threshold—and we hold that Mr. Immanuel’s request for a rank-ordered list would reveal a modicum of additional individual financial information beyond the Abandoned Property Act disclosure. But these problems render the request overbroad, not objectionable, so we direct the circuit court to flesh out the record and draw the appropriate boundaries. A. The Comptroller Preserved His Argument That The Request Would Require Him To Create A New Record. Before considering the Comptroller’s initial question, we first address whether the Comptroller preserved it.

Mr. Immanuel argues that the issue was not properly preserved, but we disagree. See Md. Rule 8-131(a). At the hearing below, the circuit court asked counsel for the Comptroller whether he was arguing that it would have to reformat its existing list of unclaimed property accounts to comply with Mr. Immanuel’s request. Counsel for the Comptroller responded that he was: Well, I think to the extent that it’s not an existing document.

I think that that is an element of the Court’s review, and that is ... that Mr. Immanuel is not only requesting documents or information, he is asking the State to format this information in a form that does not currently exist. If Mr. Immanuel wanted the information that’s available on the Comptroller’s data systems, it would just ... be a list presented in chronological order, and that’s how the Comptroller stores that information. ²⁶⁹ I think that this is not a typical request for information from a State agency. This is a request for the State agency to sort and format data in a format that would benefit the tax payer, and it’s not something the State is in the business of doing. So that’s a corollary argument, Your Honor, but the reason the information was not disclosed is basically because the Comptroller believes it is prohibited by statute based upon the Attorney General’s Opinion.

In its order, the circuit court stated that “[a]t the hearing, counsel for [the Comptroller] stated that the denial was not based on the request that the [Comptroller] format the list; only that the list, when formatted, would reveal asset information.” We disagree. It is clear from the record that the Comptroller did, in fact, decline to grant Mr. Immanuel’s request on the ground that the agency was being compelled to create a new document, and we find that the Comptroller’s contention was preserved for appellate review. B. Mr. Immanuel’s Request Does Not Require The Comptroller To Create A New Public Record. Although the Comptroller preserved his argument, we respectfully disagree with it.

Putting aside Mr. Immanuel’s motives, 8 his request is straightforward: he asked for “a printout of all unclaimed property accounts (owners, their last known address, the date the account was referred to the State, and any other information that is published each year pursuant to statute) that have been with your agency for 24 months or more,” and asked