Dashiell v. Maryland State Police Department

WOODWARD, J. The instant appeal arises from an order granting summary judgment by the Circuit Court for Baltimore County. Appellant, Teleta S. Dashiell, filed a declaratory judgment action under the Maryland Public Information Act (“MPIA” or “the Act”), seeking to establish that certain internal affairs records ⁶⁵¹ prepared and stored by appellee, the Maryland State Police (the “MSP”), were not exempt from disclosure. On November 5, 2009, appellant filed a complaint with the MSP against Sergeant John Maiello, alleging that Sergeant Maiello had made racially derogatory remarks while leaving a message on her voicemail two days earlier. Following an internal affairs investigation, appellant was notified on February 17, 2010, that her allegations were “confirmed” and that “appropriate disciplinary action was taken against Sergeant Maiello and documented in his personnel file.” After her subsequent MPIA request was denied by the MSP, appellant filed her declaratory judgment action in the circuit court.

On June 24, 2011, following a motions hearing, the court ruled that all of the records sought by appellant were exempt from disclosure as “personnel records” under Section 10 — 616(i) of the Act. This appeal followed. On appeal, appellant raises three questions, which we have rephrased: 1. Did the trial court err in granting summary judgment in favor of the MSP after finding that the documents sought by appellant under the Maryland Public Information Act were exempt from disclosure? 2.

Did the trial court err by not ordering the MSP to produce those portions of the withheld documents that are “reasonably severable”? 3. Did the trial court err by allowing MSP to withhold documents under the Maryland Public Information Act without first conducting an independent review of, or permitting discovery of, the documents? For the reasons set forth below, we will vacate the judgment of the circuit court and remand this case to that court for further proceedings. BACKGROUND On November 3, 2009, during the investigation of a case to which he was assigned, Sergeant Maiello made a telephone ⁶⁵² call to appellant, who was a potential witness.

Unable to reach her, Sergeant Maiello left a voicemail message on appellant’s telephone, asking her to call him back. Without realizing that he had not hung up the phone, Sergeant Maiello made racially disparaging remarks about appellant that were recorded on her voicemail system. 1 After listening to the voicemail, appellant contacted the Princess Anne police barracks and, subsequently, came in to give a statement and file a complaint against Sergeant Maiello. On February 17, 2010, appellant received correspondence from Captain Kristina Nelson of the Criminal Investigation Division, which explained that, following an internal investigation, appellant’s complaint had been “sustained” and that “appropriate disciplinary action was taken against Sergeant Maiello and documented in his personnel file.” Approximately one month later, on March 2, 2010, appellant, assisted by the American Civil Liberties Union of Maryland (“ACLU”), filed a request for disclosure of records under the MPIA. Md.Code (1984, 2009 Repl.

Vol.), §§ 10-611 to -630 of the State Government Article (“SG”). In the records request, appellant sought [t]he internal investigation conducted by the Maryland State Police pursuant to the complaint lodged against Sergeant John Maiello by [appellant] on November 5, 2009, and closed the second week of February, 2010, relating to the offensive voicemail message left on [appellant’s] cell phone on November 3, 2009, including, but not limited to: a. Any documents, including video and/or audio recordings, obtained during the investigation; b. Any documents, including video and/or audio recordings, created during the investigation; c.

Incident reports; d. Witness statements; ⁶⁵³ e. Charging documents; f. Complaint control card; g.

Results of internal investigation; and h. Results of the review of findings of the internal investigation. On April 15, 2010, Internal Affairs Section Commander John Greene denied appellant’s request in its entirety. In a response letter to the ACLU, Commander Greene explained: MSP is denying [the] request for records for the following reasons: • The Law Enforcement Officers’ Bill of Rights (LEOBR) prohibits disclosure of internal investigation reports outside the context of that law. • Records of an individual employee’s conduct related to a specific incident are personnel records and are not disclosable under the [MPIA], • The records you requested are intra-agency memoranda and letters and it would not be in the public interest to inhibit candor in the decision making process. • The records you requested are investigatory records and it would not be in the public interest to inhibit the candor of witnesses or to invade the personal privacy of individuals involved in the investigation.

Appellant disputed the MSP’s decision to withhold the documents in their entirety, arguing in a June 7, 2010 letter that she was “entitled to review” the investigative file generated by her complaint. Appellant then requested that the MSP be required “to provide any reasonably ‘severable portion’ of the records sought.” Appellant also “requested] a detailed index of the investigative file that includes a summary of each document, and states the particular exemption that the MSP claims for each document” within thirty days of the letter. The MSP denied this request, stating that “the nature of these records and the various bases upon which [the] MSP was compelled to deny the request makes it clear that no portion of the requested record is reasonably severable,” and that the ⁶⁵⁴ MSP was not required to provide a detailed index because in its April 15 response, the MSP “sufficiently described the contents of the records to justify denial of access to the records without the need” for any such index. In the face of these denied requests, on October 27, 2010, appellant filed a complaint in the circuit court seeking (1) a declaratory judgment that the MSP violated the MPIA, (2) an order permitting her to inspect and copy the records she sought, and (8) an award of attorney’s fees and costs.

Before the beginning of discovery, the MSP moved to dismiss, or, in the alternative, for summary judgment. The circuit court held a hearing on June 24, 2011, at the conclusion of which the court orally granted the MSP’s motion for summary judgment. The circuit court explained its ruling as follows: This is a case where [appellant] filed suit against [the MSP] alleging violation of the Maryland Public Information Act. Suit was filed on October 27, 2010.

Prior to filing suit, [appellant] inquired of [the MSP] as to what actions they had taken regarding this incident. The [MSP] w[as] required to respond on February 17, 2010. [MSP employee] Captain Kristina Nelson sent a letter to [appellant] stating — I’m not quoting — in response to her inquiry there was an investigative file created regarding [appellant’s] complaint. Second, that [the MSP] confirmed [appellant’s] allegations, and third, that appropriate disciplinary action was taken against Sergeant Maiello, and documented in his personnel file as stated in the letter of February 17, 2010. Shortly thereafter, March 2, 2010, [appellant], through her counsel, requested, one — facts gathered during the investigation itself, [ ] an Internal Affairs Investigation.

Two — witnesses’ statements, [incident] reports, documents obtained or created during the investigation, and again, an Internal Affairs Investigation, the results of the Internal Affairs Investigation, and five [sic] — the results of the review findings of the Internal Investigation. That’s what counsel is asking for. Basically, that’s what the suit is ⁶⁵⁵ asking for. All [ ] of these items are contained in the man’s personnel file.

The law is very clear. The personnel record is confidential. The only exceptions that I see in the case law involve criminal cases, such as Robinson v. State, 354 Md. 287 [ 730 A.2d 181 (1999) ], Baltimore City Police v. State, 158 Md. App. 27 [4, 857 A.2d 148 (2004) ]. These Internal Affairs Investigation records are clearly personnel records under Section 10-616, the State Government section of the annotated code.

It clearly states they shall deny — unless you got a criminal case involving constitutional issues usually related to the Sixth or Fourteenth Amendment. There’s no question in my mind based upon [appellant’s] attorney’s requests they are looking for a result of an internal investigation by the [MSP], and everything they are looking for is personnel records which are confidential and are protected. Therefore, I’m granting the motion for summary judgment. On June 28, 2011, the court entered a written order incorporating its ruling granting summary judgment.

This timely appeal followed thereafter. Additional facts will be added as necessary to elucidate our discussion. DISCUSSION The Court of Appeals set out the appellate standard of review for a grant of summary judgment in Tyler v. City of College Park: Whether a circuit court’s grant of summary judgment is proper in a particular case is a question of law, subject to a non-deferential review on appeal. As such, in reviewing a grant of summary judgment, we review independently the record to determine whether the parties generated a dispute of material fact and, if not, whether the moving party was entitled to judgment as a matter of law.

We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the well-plead facts against the moving party. ⁶⁵⁶ 415 Md. 475, 498 , 8 A.3d 421 (2010) (citations omitted). Ordinarily, we “consider only the grounds upon which the trial court relied in granting summary judgment.” Ross v. State Bd. of Elections, 387 Md. 649, 667 , 876 A.2d 692 (2005) (internal quotation marks omitted). In the MPIA, the General Assembly codified a general right to public information. See SG §§ 10-611 to -630.

Both on its face and as established by case law, the Act “shall be construed in favor of permitting inspection of a public record.” Id. § 10-612(b); see Kirwan v. Diamondback, 352 Md. 74, 81 , 721 A.2d 196 (1998) (noting that the Act “must be liberally construed in order to effectuate the Public Information Act’s broad remedial purpose”) (citations and internal quotation marks omitted). “[T]he 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.” Id. at 81 , 721 A.2d 196 (citations and internal quotation marks omitted). Of course, there are exceptions (in the form of exemptions) to the general rule favoring disclosure. The presumption of public access does not apply in limited situations where “an unwarranted invasion of the privacy of a person in interest would result.” SG § 10-612(b). As a public agency, the MSP has the burden of sustaining its decision to deny the inspection of a public record.

Id. § 10 — 623(b)(2)(i); see also Fioretti v. Bd. of Dental Exam’rs, 351 Md. 66, 78 , 716 A.2d 258 (1998). The agency may not assert a generic “unwarranted invasion of privacy” or “personal information” exemption to disclosure; only the codified exemptions, where applicable, are a valid basis for withholding public records. Office of the Governor v. Washington Post Co., 360 Md. 520, 554 , 759 A.2d 249 (2000). Sections 10-615 through 10-618 of the Act provide the four statutory categories of exemptions.

Sections 10-615, 10-616, and 10-617 each set forth “required denials” stating that, for all public records that fall into those categories, the records custodian “shall deny inspection” (emphasis added). Section 10-618 sets forth “permissible denials” that vest dis ⁶⁵⁷ cretion in the custodian to deny inspection “if [the] custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest.” In sum, “if any exemption under §§ 10-615, 10-616, or 10-617 is applicable to a particular record, then it must be withheld. Moreover, if the record is exempt under the provisions of § 10-618(a) ..., then it may be withheld at the discretion of the custodian.” Office of Attorney General v. Gallagher, 359 Md. 341, 354-55 , 753 A.2d 1036 (2000). Furthermore, the exemption provisions are not mutually exclusive; that is, documents for which disclosure may be permitted under one section must still be withheld if covered by another mandatory exemption.

Id. at 354 , 753 A.2d 1036 . When faced with an MPIA dispute, a trial court “must interpret the [Act’s] exemptions narrowly.” Fioretti, 351 Md. at 77 , 716 A.2d 258 . “The Public Information Act’s strong preference for public access to government documents must be considered whenever a court is applying the particular provisions of the statute.” Md. Dep’t of State Police v. Md. State Conference of NAACP Branches, 430 Md. 179, 191 , 59 A.3d 1037 (2013). The public records at issue in the present case concern an internal affairs investigation into appellant’s allegations that Sergeant Maiello, one of the MSP’s officers, made racially insensitive and derogatory remarks to appellant in a voicemail left on appellant’s phone. The Court of Appeals recently explained: An internal investigation is initiated by a “complaint” or “allegation of misconduct made against an employee of the department.” The Director of the Internal Affairs Division reviews the complaint and determines whether it merits further investigation.

If it does, the Director then assigns the complaint to an investigator, typically a commanding officer, tasked with gathering “all available documentary evidence” and compiling an “Internal Investigative Report,” which contains the allegations, a written report of any ⁶⁵⁸ information uncovered by the investigation, and a list of all those contacted or interviewed. Montgomery Cnty. v. Shropshire, 420 Md. 362, 374 , 23 A.3d 205 (2011). According to the MSP’s Administrative Manual, complaints are documented by a police employee on a “Form 176,” which is entitled “Complaint Against Personnel.” Md. State Police Admin. Manual, ch. 5, § V(D)(3)(b) (rev.

Aug. 20, 2004) (“the MSP Manual”). Form 176 is then submitted to the Internal Affairs Section (“the IAS”), which opens a new case file for that complaint and assigns a tracking number to that file. Id. §§ 111(E)(1),(F)(1), V(E)(4). The commander of the employee against whom the complaint is filed then confers with the IAS Commander, who has the authority to decide who investigates the complaint (either the IAS or a “local investigator”).

Id. § V(E)(4). Whoever is assigned to investigate the complaint must interview the complainant and witnesses, interrogate the employee(s), explore all leads, examine all physical evidence, and provide an investigative report. Id. § V(H)(1). Once completed, an investigation case file will contain the following: a.

Complaint Against Personnel Report, Form 176 b. Report of Investigation (1) Following] the detailed report format in Chapter 3 [of the MSP Manual] to ensure the uniformity of internal investigation reports. c. Appendices (1) Statement of complainant, if different from that of the victim. (2) Statement of victim, if different from that of complainant.

(3) Statement of witnesses. (4) Notification of Complaint, Form 178, if applicable. (5) Detailed report from accused employee(s) and/or interrogation transcript. (6) Order to Submit to Interrogation, Form 178A, if applicable. ⁶⁵⁹ (7) Explanation of Miranda Rights!,] Form 180, if applicable.

(8) Other statements or detailed reports. (9) Additional exhibits — e.g., photographs, diagrams, charts, etc. Id. § V(H)(10). After the investigation is completed, a complaint may be “sustained,” “not sustained,” “exonerated,” or “unfounded.” Mayor of Balt. v. Md. Comm. Against Gun Ban, 329 Md. 78, 85 , 617 A.2d 1040 (1993) (“Gun Ban II ”).

If the complaint is sustained, the officer may be subject to disciplinary action. Offenses subjecting an officer(s) to discipline are classified internally into five categories, “A” through “E,” with Category A offenses being the least severe, and Category E offenses considered the most severe. The discipline assessed ranges from formal counseling to reassignment for Category A offenses, to demotion or termination for Category E offenses. MSP Manual, ch. 5, § XIII.

An officer against whom discipline is assessed may appeal to the Internal Investigative Review Panel. Shropshire, 420 Md. at 374 , 23 A.3d 205 . Furthermore, where the complaint is sustained, “a notice to this effect is also placed in the officer’s personnel file.” Final Rep., Governor’s Info. Pracs.

Comm’n 307 (1982). We now turn to evaluate whether appellant has a right to inspect the records that she seeks under the MPIA. As explained above, the MSP issued a categorical, “blanket denial” of appellant’s records request pertaining to the investigation of the incident involving Sergeant Maiello and appellant. The MSP stated four separate bases for its denial — namely, that the records were: (1) personnel records; (2) records for which disclosure would violate the Law Enforcement Officers’ Bill of Rights (“the LEOBR”); (3) intra-agency memoranda and letters; and/or (4) investigatory records.

The circuit court ultimately concluded that all of the records were “personnel records” without analyzing the MSP’s other bases. Because we determine, as will be discussed infra, that the court’s judgment must be vacated and the case remanded for ⁶⁶⁰ further proceedings, our discussion will include all of the MSP’s bases for the guidance of the trial court upon remand. See Md. Rule 8-131(a). A. Is Appellant a “Person in Interest”?

We begin our analysis by evaluating whether appellant, as the complainant in the instant case, is a “person in interest” under the MPIA. Appellant contends that she is a “person in interest” as defined by the MPIA. The MSP disagrees. We concur with the MSP.

The significance of this initial determination is that the agency must make a heightened showing in order to deny inspection to a “person in interest” relative to a member of the general public. Compare SG § 10 — 616(i)(1) (requiring denial of inspection of personnel records) with SG § 10 — 616(i)(2) (requiring granting of inspection to “the person in interest”). See also Gun Ban II, 329 Md. at 96-97 , 617 A.2d 1040 (explaining that denying inspection under SG § 10-618(f)(2) to “the person in interest” is only permissible based on seven enumerated circumstances, whereas § 10 — 618(f)(1) only requires showing that “inspection would be contrary to the public interest”). As defined by SG § 10-611(e)(1), a “person in interest” is “a person or governmental unit that is the subject of a public record,” or that person’s designee.

In Gun Ban II , the Maryland Committee Against the Gun Ban (“the Committee”), a political committee, sought records of the Internal Investigation Division (IID) of the Baltimore City Police Department based on an investigation into two officers’ alleged use of excessive force and other misconduct. 329 Md. at 84 , 617 A.2d 1040 . In addition to considering the text of the Act, the Court of Appeals quoted at length from the legislative history of the Act, including the 1975 Senate Committee Report, which stated that the 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.’ ” Id. at 94, 617 A.2d 1040 (quoting Report to the ⁶⁶¹ Senate of Maryland, Senate Investigating Committee Established Pursuant to Senate Resolutions 1 and 151 of the 1975 Maryland General Assembly (1975)). Reversing our decision and affirming the trial court, the Court held that the Committee was not a “person in interest,” because it was “not ‘the subject of the IID report.” Id. at 90 , 617 A.2d 1040 (quoting SG § 10 — 611(e)). The Court reasoned that “[t]he fact that individual persons who were working toward the goal of the Committee, either as volunteers, paid employees, or independent contractors, interfaced with the police officers who thereby became subjects of the investigation is insufficient to make the Committee a ‘person in interest.’ ” Id. at 91, 617 A.2d 1040 .

We followed the Court of Appeals’ guidance the following year in Briscoe v. Mayor of Baltimore, 100 Md.App. 124 , 640 A.2d 226 (1994). The appellant in Briscoe , like appellant in the case sub judice, was a complainant who accused two police officers of excessive force and misconduct, and was the person who prompted an internal police investigation. Ultimately, the police department concluded that the allegations were not sustained. Id. at 126 , 640 A.2d 226 .

After noting that the Court of Appeals “left open the question of whether a complaining victim or witness may be considered the subject of an investigation” in Gun Ban II , we quoted the Court of Appeals’ statement that “ ‘[t]he 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.’ ” Id. at 130, 640 A.2d 226 (quoting Gun Ban II, 329 Md. at 92 , 617 A.2d 1040 ). Applying that reasoning, we concluded that the “appellant is not the person who was investigated and thus not a person in interest under the Act.” Briscoe, 100 Md.App. at 130 , 640 A.2d 226 . 2 ⁶⁶² Appellant argues that we should distinguish Briscoe , because the allegations of misconduct in Briscoe were not sustained, while appellant’s allegations in the instant case were sustained. Such distinction, in our view, has no bearing on whether a complainant is or is not a “person in interest.” A “person in interest” relates to the status of an individual, not to the veracity of the allegations of misconduct. 3 Like the appellant in Briscoe , appellant here is the complainant who triggered the investigation by the MSP, and not the subject of the investigation itself. Sergeant Maiello was the subject of the investigation, and thus a “person in interest.” Briscoe compels the conclusion that appellant is not a “person in interest.” B. Applicability of the LEOBR The MSP argues that, because of the LEOBR, it was required to refuse inspection as “contrary to a State statute,” pursuant to SG § 10 — 615(2)(i). 4 The MSP claims that the ⁶⁶³ LEOBR “confirms the public interest in protecting the confidentiality” of the documents here.

Appellant counters that SG § 10-615 does not apply, because the LEOBR, although a state statute, does not control her situation. Appellant contends that the LEOBR is intended only to provide procedural guarantees to law enforcement officers in internal investigations and that, because she is a public complainant, the LEOBR is irrelevant. In Shropshire , the Court of Appeals explained that “[internal investigations of law enforcement officers are governed by ... the Law Enforcement Officers’ Bill of Rights (LEOBR).” 420 Md. at 373 , 23 A.3d 205 . Indeed, as explained by the Court, “Section 3-104 of the Public Safety Article is controlling whenever a law enforcement officer is under investigation or subjected to