Epps v. Simms

BLOOM, Judge. Seeking certain information to which they claim to be entitled by virtue of Maryland’s Public Information Act (§§ 10-611 through 10-628 of the State Government Article of the Maryland Code), appellants, Lenny Epps and Maurice C. Proctor, filed separate actions in the Circuit Court for Baltimore City against appellee, Stuart Simms, State’s Attorney for Baltimore City, the alleged custodian of those records. In Epps’s case, the court ordered appellee to disclose the requested information “unless it fits within the enumerated exceptions in § 10-618(f).” Appellee furnished some information, but not enough to satisfy Epps, who then filed a “Motion to Produce Vaughn Index for In Camera Inspection,” seeking the form of relief discussed in Cranford v. Montgomery County, 300 Md. 759 , 481 A.2d 221 (1984), and ³⁷⁴ Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977 , 94 S.Ct. 1564 , 39 L.Ed.2d 873 (1974). 1 Appellee filed an opposition to that motion, together with an affidavit and memorandum of law. By way of rejoinder, Epps filed a “Traverse,” together with a brief setting forth arguments in support of his motion.

The court denied Epps’s motion for a Vaughn Index, and Epps appealed from that denial. Appellant Proctor’s complaint against appellee, filed almost a month after the court had denied Epps’s motion for a Vaughn Index, recited Proctor’s request for information from Simms and the latter’s response, which merely said that appellee was unable to comply with the request and that similar efforts by Proctor’s co-defendant, Epps, were unsuccessful. Anticipating that a request for an order requiring Simms to release the desired information would eventually necessitate a request for a Vaughn Index anyway, Proctor’s complaint, “in the interest of Judicail (sic) Economy,” merely asked the court to order the production of a Vaughn Index at the outset. Appellee responded with a motion to dismiss (1) for failure to state a claim upon which relief can be granted; (2) because the materials sought by Proctor were utilized by the federal government in prosecuting Proctor and thus could not be released by appellee; and (3) because the material requested contained information which if released would disclose confidential sources and entail an unwarranted invasion of privacy.

The motion to dismiss, which was accompanied by a memorandum in its support, was granted by the court. Proctor’s appeal is from the order dismissing his complaint. Both appeals having been submitted on brief, we combined them for purposes of this opinion, since they involve common issues of fact and law. The cases will diverge, ³⁷⁵ however, with respect to disposition.

We shall dismiss Epps’s appeal but reverse the judgment in Proctor’s case. I Upon Epps’s petition, after some preliminary skirmishes, the court ordered appellee to disclose the information sought by Epps “unless it fits within the enumerated exceptions” in § 10-618(f). Appellee disclosed certain documents, but Epps was dissatisfied. He filed the Motion to Produce Vaughn Index for In Camera Inspection.

Citing Cranford v. Montgomery County, 300 Md. 759 , 481 A.2d 221 (1984), and Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977 , 94 S.Ct. 1564 , 39 L.Ed.2d 873 (1974), he asked the court to grant the type of relief discussed in those cases in order to determine whether appellee was improperly withholding information subject to disclosure. Appellee filed an opposition to the motion, in which he asserted: 1. Plaintiff has received all material used exclusively in the State’s prosecution against him. 2. Defendant has no right to authorize Plaintiff’s access to materials utilized by the federal government in its prosecution of Plaintiff. 3.

Material utilized by the federal government to which Defendant has access includes information which if released would entail an unwarranted invasion of privacy and would disclose confidential sources. Attached to the opposition was an affidavit, which stated: I, Timothy J. Doory, being competent to testify, hereby affirm on my personal knowledge as follows: 1. I am the Chief of the Violent Crimes Division of the State’s Attorney’s Office for Baltimore City and a prosecutor within that office. 2. I was responsible for the handling of a criminal murder case against Leonard Epps filed in the State of Maryland; I was also sworn as a Special Assistant ³⁷⁶ United States Attorney for the purposes of prosecuting Mr. Epps from the same murder in federal court. 3.

The State murder charges were dismissed against Mr. Epps by way of a nolle prosequi. Mr. Epps was found guilty of the federal offenses and sentenced to life imprisonment and five years. 4. Pursuant to an order from the Baltimore City Circuit Court dated October 24, 1989, copies of all information contained exclusively in the State’s file of Mr. Epps were mailed to Mr. Epps. As a Special Assistant United States Attorney I was given no authority to release any information to which I had access and I was specifically foreclosed by the United States Attorney’s Office from sending Mr. Epps any information gathered for the purposes of the federal prosecution.

It is my understanding that the federal prosecution entailed prospective witnesses who did not testify at trial so that release of information about them would constitute an unwarranted invasion of privacy and there were confidential sources utilized during the investigation. For these reasons, I have permitted Mr. Epps access only to the materials relied upon exclusively by the State. Appellee also filed a memorandum in support of his objection, in which he argued: It is clear from the Affidavit that Mr. Epps has received all material used exclusively by the State in its prosecution against Plaintiff. Merely because Plaintiff pursues additional documents which the Defendant has no authority to release does not entitle Plaintiff to further access to the records.

The terms of Timothy Doory’s appointment as a Special Assistant United States Attorney were limited and did not authorize him to have unfettered control of the federal documents he received during the prosecution of Mr. Epps. Indeed, Mr. Doory is not permitted to disclose the records. In short, the State’s Attorney’s Office is not the ³⁷⁷ authorized custodian who may exercise control over the additional records Mr. Epps seeks. Because it appears that Mr. Epps desires access to federal document, he should request such documents from the United States Attorney’s Office, the actual custodian who has full authority to relinquish the records.

Epps countered with a “Traverse” to appellee’s objection, and with a brief, in which he argued: The Plaintiff wants to be perfectly clear. The Plaintiff has never attempted to secure any records but state records. Whatever transpired in the federal prosecution has no bearing in this instant matter. The plaintiff is not utilizing Maryland’s PIA for FBI, DEA, or US Attorney records ... the Plaintiff is seeking solely state records compiled in the instant matter.

It has not been shown but there may exist the possibility that Mr. Doory “borrowed” certain state materials for the federal investigation/prosecution but that does not transform state records into federal records for the purpose of the Maryland PIA. Records compiled by city agencies that originated with city agencies remain state records. The fact that they may be loaned to a federal agency does not remove their indicia as state records. This is what Mr. Doory proffers and it is legally incorrect and an indulgence that is untenable.

Epps also argued, citing Cranford, supra, that appellee’s conclusory characterization of the requested materials was insufficient to justify non-disclosure. The court entered the following order: Upon consideration of the Motion to Produce Vaughn Index for In Camera Inspection filed by Plaintiff, Lenny Epps, the Objection to Plaintiff’s Motion filed by the Defendant, Stuart Simms, and the Plaintiff’s Reply thereto, it is this 12th day of April, 1990, ³⁷⁸ ORDERED that the Plaintiffs Motion is hereby DENIED. This appeal was taken from that order. As appellee points out in a footnote to his brief, Epps’s appeal was not taken from a final judgment. 2 Md.Cts. & Jud.Proc.Code Ann., § 12-301.

We also note that the appeal was not taken from the type of interlocutory order from which an immediate appeal would lie. § 12-303. We are therefore constrained to dismiss Epps’s appeal. Md.Rule 8-602(a)(l). II By 26 March 1990, when Proctor wrote to appellee to request the same type of material Epps had requested, the status of Epps’s case was as follows: the court had denied appellee’s motion for summary judgment and permitted Epps to amend his complaint; appellee had supplied certain information but refused to disclose all of the requested material; and Epps had filed his motion for a Vaughn index.

Appellees did not reply to Proctor’s request until 8 May 1990, by which date the court had denied Epps’s motion. Appellee furnished no information to Proctor, merely responding to his request as follows: I am unable to comply with your request. Similar efforts by your co-defendant Lenny Epps were unsuccessful. A copy of that Order is attached.

The order referred to was the court’s order denying Epps’s motion for Vaughn Index. Proctor promptly filed a complaint in the Circuit Court for Baltimore City, asserting that he had requested specific ³⁷⁹ information from appellee and attached a copy of his letter of request. He complained that appellee’s response did not even amount to a denial letter, and he asked the court to order a Vaughn Index, since it was obvious that appellee had no intention of furnishing him any information but intended to rely on his success in the Epps case. Appellee responded with a motion to dismiss Proctor’s complaint (1) for failure to state a claim upon which relief can be granted; (2) because appellee was not authorized to give Proctor access to information relied upon by the federal government in prosecuting Proctor; and (3) because a release of the requested information “would entail an unwarranted invasion of privacy and would disclose confidential sources.” Appellee’s memorandum in support of his motion to dismiss relied on the same arguments raised in the Epps case, including an affidavit of Mr. Doory, identical to the one filed in the Epps case except for the substitution of Proctor’s name for that of Epps.

The court granted appellee’s motion and dismissed Proctor’s complaint, without stating the basis for its action. We must consider, therefore, each of the grounds relied upon by appellee in the motion to dismiss, since the court might have granted the motion on any or all of those grounds. A. Appellee’s assertion that Proctor’s complaint did not state a claim upon which relief could be granted was based on the fact that the specific relief requested by Proctor was the ordering of a Vaughn Index, rather than