Cranford v. Montgomery County

Garrity, J., delivered the opinion of the Court. This appeal calls on us to establish a standard by which equity courts may determine whether private citizens should be granted or denied access to certain records in the possession of a local government in accordance with the Maryland Freedom of Information Act. We must also form a corollary standard to guide chancellors in the exercise of their discretion concerning the decision of whether to conduct an in camera review of requested records subject to disclosure under the Act. Factual Background After it completed building the Executive Office and Judicial Center, Blake Construction Company presented Montgomery County with an additional claim that amounted to several million dollars.

Because of the builder’s claim and the project’s inherent interest to the public, the news media sought information regarding the facts and circumstances surrounding the construction of the Center. On May 8, 1981, the appellant, as editor of the Sentinel newspapers, wrote to the appellee, Thomas Abraham, the Director of the Department of Facilities and Services, and ²⁷⁸ requested access to all documents pertinent to the construction of the office complex. By a letter dated June 3, 1981, the County Attorney for Montgomery County responded to the appellant and permitted review of the requested files except for 1) certain intra-agency memoranda, 2) certain interagency memoranda, 3) inspection reports, 4) personal notes, and 5) a consultant’s report. Although information contained in several file drawers concerning the project had been made available to the appellant, he sought access to the withheld records by filing a bill of complaint for injunctive relief in the Circuit Court for Montgomery County.

On July 10, 1981, a hearing was held before the Hon. John J. Mitchell, at which testimony was taken and exhibits entered. On October 2, 1981, Judge Mitchell ordered an in camera inspection of the County’s records for the purpose of determining whether they were subject to disclosure. Judge Mitchell, however, subsequently vacated his order of October 2, 1981, and recused himself from the case.

Thereafter, the case was reassigned to the Hon. Samuel W. Barrick who conducted a second hearing on March 26, 1982. In a memorandum and order filed on April 5, 1982, Judge Barrick ruled that an in camera review was not warranted and dismissed the appellant’s bill of complaint. Appealing from that judgment, the appellant asks whether the circuit court erred in ruling that the requested documents were exempt from disclosure under the exceptions to the Information Act, and in ruling that it was unnecessary, under the circumstances, to conduct an in camera review of the documents.

Based on our analysis of the applicable law, we hold that the circuit court did not err in its rulings, and we shall affirm the court’s judgment. I. Privileged Documents Although the purpose of the Act is to provide the public with access to information regarding the affairs of government, the statute authorizes the custodian of the requested ²⁷⁹ records to deny the right of inspection "if disclosure to the applicant would be contrary to the public interest”. Md. Ann. Code, Art. 76A, §§ 1A and 3 (b). The statute lists those records for which disclosure may be denied.

This list includes interagency or intra-agency memoranda or letters "which would not be available by law to a private party in litigation with the agency.” Art. 76A, § 3 (b) (v). 1 Judge Barrick, in his memorandum and order, accepted the assertion of Montgomery County and Mr. Abraham, the custodian, that the subject documents should not be disclosed to the public as they were privileged from inspection under the Maryland Freedom of Information Act. The appellees based their refusal to disclose the requested ²⁸⁰ documents on the exception provided for agency memoranda and on several additional exceptions. The circuit court, however, relied solely on § 3 (b) (v) as grounds for restricting public access to the requested documents which it classified as inter-office memoranda, attorneys’ work product and consultants’ reports, progress meeting notes and personal notes. As Judge Barrick determined the requested information to be "very similar” to the items precluded from public inspection by Chief Judge Northrop of the Federal District Court for Maryland in Wellford v. Hardin, 330 F. Supp. 915 (d.

Md. 1971), and further held that the documents would not have been made available through discovery procedures to a private litigant, Judge Barrick held that the right to inspect such records had been properly denied. The appellant contends that Judge Barrick erred in holding that the requested documents were exempt memoranda because (1) there was "insufficient detail for a reasonable determination of exemption”, and (2) the information sought could have been obtained by discovery in the course of litigation. We interpret the appellant’s first contention to be a challenge to the sufficiency of the evidence upon which Judge Barrick based his conclusion. Rather than directly support his argument regarding sufficiency, the appellant merges it into his latter contention that the memoranda would be discoverable by "some plaintiffs in some litigation”.

The appellant asserts that Maryland rules for discovery encourage broad and complete discovery and that, in circumstances involving "substantial need” or undue hardship:, even documents prepared for trial can be obtained. Kelch v. Mass Transit Administration, 42 Md. App. 291, 299 , 400 A.2d 440 (1979). Under the discovery standards of the courts, and not those standards practiced in administrative hearings, the subject materials would be discoverable, according to the appellant, because the appellees failed to carry their burden of a "specific detailed showing that the withheld information is part of the deliberative process of the agency” and not purely factual reports that cannot be cloaked in secrecy. Bristol Myers v. Federal Trade Comm., 424 F.2d 935 (D.C. Cir. 1970). ²⁸¹ Discussion of Law The appellant correctly states that under Maryland law, when an aggrieved party seeks judicial review of an administrative denial of access to records, the defendant state agency or custodian of records bears the burden of justifying the non-disclosure.

Md. Ann. Code, Art. 76A, § 5(b) (1); Equitable Trust Co. v. Md. Comm. on Human Relations, 42 Md. App. 53, 72 , 399 A.2d 908 (1979), rev’d on other grounds, 287 Md. 80 (1980). In Equitable, supra, at 76-79, this Court held that a state agency may deny access to the records of investigations compiled for the purpose of law enforcement under Art. 76A, § 3(b) (i), only if the agency could demonstrate that disclosure of the records would interfere with the agency’s law enforcement proceedings or produce one of the other harms enumerated in section 3(b) (i). In reaching this holding, we relied on the apposite decision of the U.S. Supreme Court in NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214 , 98 S.Ct. 2311 (1978), in which the Court concluded that pre-hearing disclosure of prospective witnesses’ statements would harm the agency’s proceedings. In Wellford, supra, Chief Judge Northrop relied on the decision of Bristol-Myers in which the federal appeals court for the District of Columbia discussed the internal memoranda exemption of the federal statute.

Chief Judge Northrop stated: Bristol-Myers enunciates the framework which plaintiff feels a district court must observe in making a determination as to the applicability of the exemption contained in 5 U.S.C. 552(b) (5). The statute is specific, however, in its exemption of "inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. 552(b) (5). This provision encourages the free exchange of ideas among Government policymakers, but it does ²⁸² not authorize an agency to throw a protective blanket over all information by casting it in the form of an internal memorandum. Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only "those internal working papers in which opinions are expressed and policies formulated and recommended.” Furthermore, an internal memorandum may lose its protected status when it is publicly cited by an agency as the sole basis for its action.

I will say that this court in its opinion of June 26, 1970, erroneously felt that the documents in question here were such that they should be produced in camera for the court’s perusal and deletion of "factual or scientific information”; that information having been culled from these reports, the documents should be turned over to the plaintiff. However, on reconsideration, after hearing argument of counsel today, checking decisions from other jurisdictions, and, more particularly, in focusing on the character and nature of the Biweekly Reports and the Minutes themselves, this court feels that they are documents which should not be subjected to the scrutiny of this court, but rather, reflect inter-agency matters which are certainly of the opinion and formative nature, and thus fall within the purview of the exemption granted by Congress. A close perusal of the Congressional intent in the enactment of this legislation indicates that Congress did not wish to put anymore blocks in the way of inter-agency communication and further slow down the already snail pace of policymaking in the departments. Congress felt that the free exchange of ideas within these departments which ultimately go into the making of the policy decisions and resolutions would be impeded if there were public disclosure.

Id. at 917-918 . (emphasis added) ²⁸³ In the present case, concerning non-disclosure on the basis of the intra-agency memoranda exemption of section 3 (b) (v), as distinguished from the requirements of section 3 (b) (i), we note that subsection (v) does not predicate protection from disclosure on the basis of a showing of resultant specific harms. Rather, to defend against disclosure of memoranda, an agency need only meet its burden of showing that disclosure "would be contrary to the public interest”, as stated in section 3(b). Application of Law a.

Public Interest Standard At the hearing held on March 26,1982, Judge Barrick was informed by the appellees’ counsel that the withheld records consisted solely of: . . .documents passing between subordinates and their superiors, discussing underlying recommendations, opinions, observations, all those things which go into the policy-molding process of government, not any final decisionmaking policy. They are not indicative of any final decision or even indicative of just purely factual information. The information that we are seeking protection for in this case is material which contains the thought processes of persons putting input into the process within house. Counsel’s statements were supported by the appellee’s exhibits, which included transcripts from the July 10, 1981 hearing before Judge Mitchell.

At that hearing, the parties stipulated that if Mr. Abraham were to testify, he would have expressed the opinion that the release of the documents would impose a "chilling effect” on the open and frank discussion between his co-workers, particularly between the members of the architectural staff and the county administrators. The chancellor was further advised that Mr. Abraham would also have testified as to his concern over the ²⁸⁴ possibility that the Blake Construction Company, with whom the County was in major pending litigation, would in essence "be looking over the shoulder” of his co-workers if their records were made available to the public. Judge Barrick was also provided with the transcribed testimony of Assistant County Attorney Martin J. Hutt. Mr. Hutt had previously testified that in response to the appellant’s information request, he had spent several hours examining the pertinent files, and had personally removed those memoranda which he had determined were not subject to disclosure.

Mr. Hutt provided the court with a general description of the documents which he removed. The first set of documents consisted of intra-agency memoranda from the staff of the Office of Design and Construction. The memoranda were written by staff architects to Mr. Abraham or to Mr. Frederick P. Kranz, who is the Office Director. These documents concerned "representations to their superiors as to things that they perceived to be going on that may be beneficial