Glass v. Anne Arundel County

McDonald, J. This case began with what Petitioner’s counsel characterized at trial as an episode of “road rage” between a motorist and an off-duty police officer in September 2010. Who was at fault we do not know and need not determine. An investigation into the officer’s conduct apparently exonerated the officer; a traffic citation issued to the motorist resulted in an acquittal. The matter did not end there.

It has achieved an afterlife in several judicial and other forums over the past six years. This appeal stems from one of several public records requests under the Maryland Public Information Act (“PIA”) made by the motorist, Petitioner Gary A. Glass, to the Police Department of Respondent Anne Arundel County. The response to that request was coordinated by Respondent Christine Ryder, the Police Department’s records manager. The records requests submitted by Mr. Glass to the Police Department initially targeted the traffic stop and the internal affairs file created by the Police Department in response to complaints by Mr. Glass about the officer, but later encompassed “any and all” records related to Mr. Glass.

Dissatisfied with the handling of his requests, Mr. Glass filed at least two lawsuits under the PIA against the County. The lawsuits have ²⁰⁷ resulted in numerous rulings since 2011 by at least five judges of the Circuit Court for Anne Arundel County, made against the backdrop of three contemporaneous decisions by this Court concerning the limits on public access to police internal affairs files under the PIA. As a result of the rulings in the Circuit Court, Mr. Glass obtained a number of records that the County had not found in its initial searches in response to his requests or had initially withheld as privileged. Following a bench trial about whether the County had committed “knowing and willful” violations of the PIA, the Circuit Court held that the County had done so in two respects, but declined to award Mr. Glass the injunctive relief or damages he sought.

The Court of Special Appeals disagreed with the Circuit Court in part and held that there was not clear and convincing evidence of any such violations; it agreed with the Circuit Court that Mr. Glass was not entitled to the relief he sought. The alleged violations of the PIA turn on whether the County conducted reasonable searches in response to the PIA requests made by Mr. Glass, whether the County actually denied him access to responsive, non-privileged records, and whether a particular privilege (for personnel records) was properly asserted by the County with respect to certain records. For the reasons explained below, we reach the same result as the Court of Special Appeals. I Background A The Maryland Public Information Act 1.

General Right of Access to Public Records The Maryland Public Information Act is currently codified at Maryland Code, General Provisions (“GP”), § 4-101 et seq. 1 ²⁰⁸ The statute is similar, although not identical, to the federal Freedom of Information Act (“FOIA”). 2 This Court has frequently relied on case law under FOIA in deciding similar issues under the PIA. See, e.g., Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 76 , 716 A,2d 258 (1998). Based on the principle that “[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees,” 3 the statute provides members of the public with a right to inspect and copy public records, subject to certain exceptions. “Public record” is defined broadly as documentary material that is made or received by a unit of State or local government “in connection with the transaction of public business.” GP § 4-101(j). The statute lists a number of examples of the myriad forms that a public record may take in addition to paper documents, including digital or electronic versions.

Id. For example, email messages sent in connection with public business have long been considered to fall within the definition. See 81 Opinions of the Attorney General 140, 144 (1996). The PIA spells out a general process for a person to request and obtain access to a public record (or, if access is denied, learn the reason why).

GP § 4-201 et seq. The statute is to be construed “in favor of allowing inspection of a public record, with the least cost and least delay” to the requestor, unless “an unwarranted invasion of ... privacy” would result with respect to a particular person to whom the record pertains. GP § 4-103(b). ²⁰⁹ 2. Exceptions to Disclosure Obligation While the PIA creates a general right of access to public records, it also sets forth numerous exceptions to that general rule.

The exceptions fall into four basic categories. (1) Disclosure Controlled by Other Law. The PIA generally defers to the dictates of other laws that control disclosure of a particular public record. Thus, if another law—e.g., constitutional provision, statute, common law privilege—forbids disclosure of a record, or gives the agency discretion not to disclose the record, that other law controls disclosure of the record.

See GP § 4-301. 4 For example, a record of a communication covered by attorney-client privilege would not be disclosed in response to a PIA request, unless the client waived the privilege. GP § 4-301(1). (2) Mandatory Exceptions. The PIA itself forbids disclosure of certain specified categories of records.

See GP § 4-304 et seq. Similarly, the statute forbids an agency from disclosing certain types of information that may appear in a record, even if other parts of the record are open to inspection. See GP § 4-328 et seq. These exceptions to the PIA’s general rule of disclosure are often called mandatory exceptions.

An example of a mandatory exception for entire records, pertinent to this case, is the exception for personnel records of public employees. GP § 4-311. 5 An example of a mandatory exception for information (that may be only a portion of a record) is the exception for confidential commercial information. GP § 4-335. 6 ²¹⁰ (3) Discretionary Exceptions, The PIA specifies other categories of records or information that an agency may withhold from public inspection if it believes that disclosure “would be contrary to the public interest.” GP § 4-343 et seq. For example, a custodian may deny inspection of interagency or intra-agency letters and memoranda that contain pre-decisional deliberations.

GP § 4-344. Another example is a record of an investigation conducted by police or prosecutors as well as “an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose.” GP § 4-351(a). 7 These exceptions to the PIA’s general rule in favor of disclosure are often referred to as discretionary exceptions. They are “discretionary” not in the sense that the agency may withhold or disclose as it pleases, but in the sense that the agency must make a judgment whether the statutory standard for withholding a record—that is, disclosure “would be contrary to the public interest”—is met. (Jp) Catch-all Exception by Court Order.

Finally, even when disclosure of a record is not controlled by other law or precluded by one of the PIA’s mandatory or discretionary exceptions, an agency may—subject to certain procedural requirements—temporarily deny inspection of the record if the official custodian believes that inspection would cause “substantial injury to the public interest.” GP § 4—358(a). The agency must promptly seek a court order in order to continue to withhold the record. See Glenn v. Department of Health and Mental Hygiene, 446 Md. 378 , 132 A.3d 245 (2016). 3. The Role of the Custodian of Records The PIA assigns important responsibilities in responding to PIA requests to a “custodian” of records.

The statute defines “custodian” as “any ... authorized individual who has physical custody and control of a public record.” GP § 4-101(d)(2). As ²¹¹ is evident, an agency may have many custodians of its records. A custodian of records has the responsibility for responding to a PIA request by either allowing inspection of the requested records or asserting the appropriate exceptions. See GP § 4-201 et seq., § 4-301 et seq.

Certain special responsibilities are assigned to the “official custodian,” defined as an “officer or employee [of the agency] who is responsible for keeping a public record, whether or not the officer or employee has physical custody and control of the public record.” GP § 4-101(f). Some decisions are reserved to the official custodian, such as designating records to be disclosed without a written request and deciding when to seek a court order under the catch-all exception. GP §§ 4-201(c), 4-358. An official custodian is also responsible for “adopting reasonable rules or regulations that ... govern timely production and inspection of a public record.” GP § 4-201(b).

In practice, an agency may designate one of its employees, perhaps called a records manager or PIA coordinator, to receive PIA requests and coordinate searches and responses to such requests rather than have each individual custodian (which may include most employees) respond piecemeal to records requests. In responding to a PIA request, a designated custodian generally must enlist the assistance of others who actually hold the records. However, a custodian to whom a PIA request is directed remains responsible for ensuring that the request is appropriately addressed. Ireland v. Shearin, 417 Md. 401, 409-10 , 10 A.3d 754 (2010); ACLU Foundation of Maryland v. Leopold, 223 Md.App. 97, 125 , 115 A.3d 649 (2015) (the official custodian may not “kick the PIA responsibility down the chain of command”). 4.

The Process for Requesting Access to Records A person who wishes to inspect or copy public records typically submits a written request to the appropriate custodian of records. GP § 4-202. 8 In responding to a PIA request, ²¹² the agency is to conduct a search for responsive records. As is the case under the FOIA, the adequacy of the agency’s search is measured by whether it is reasonably calculated to uncover responsive records, not by whether it locates every possible responsive record. See Ethyl Corp. v. EPA, 25 F.3d 1241, 1246-47 (4th Cir. 1994).

The custodian is to grant or deny the request to inspect the records within 30 days. If the request is granted, the records are to be made available immediately or after a reasonable time necessary to retrieve them. GP § 4-203. If the request is denied in whole or in part, the custodian is to provide a written explanation of that decision that includes the reasons for the denial, the legal authority supporting the denial, and notice of how the requestor may seek review of that decision.

Id. This means that the custodian must specify which exceptions to the general rule of disclosure apply to any records that are being withheld from the requestor. If a particular exception applies to only part of a record, the custodian is to allow inspection of those parts of the record that are open to inspection. GP § 4-203(c)(l)(ii). 5.

Fees An agency may charge a reasonable fee for fulfilling a PIA request, including the costs of searching for records responsive to the request, reviewing those records for material that falls within an exception to the PIA’s general rule of disclosure, and making copies of the records. GP § 4-206. 9 The fee assessed to the requestor must bear a reasonable relationship “to the recovery of actual costs incurred by a governmental unit” for the search, preparation, and reproduction of requested public records. Id. The fee may be waived if the custodian decides that it is in the public interest to do so.

Id. Following the practice of federal agencies under FOIA, agencies some ²¹³ times require pre-payment of fees or a commitment to pay fees when the cost of processing a PIA request is likely to be substantial. See Office of the Attorney General, Maryland Public Information Act Manual (14th ed. 2015) (“PIA Manual”) at 7-2; Ireland v. Shearin, 417 Md. 401 , 412 n.8, 10 A.3d 754 (2010). 6. Judicial Review If an agency denies a request to inspect or copy a public record, the requestor may seek judicial review of that decision in a circuit court.

GP § 4-362(a). 10 In such an action, the agency has the burden of sustaining its decision. GP § 4-362(b). To facilitate its review, the circuit court may require the agency to submit a listing of the withheld records and the basis for withholding each record, sometimes referred to as a “Vaughn index.” Cranford v. Montgomery County, 300 Md. 759, 778-79 , 481 A.2d 221 (1984). 11 The court also may choose to review the withheld records directly and order the agency to submit them for in camera inspection. GP § 4-362(c)(2).

The circuit court may order injunctive relief against the agency—for example, order the agency to produce a record that was withheld from the requestor. GP § 4-362(c)(3). At ²¹⁴ the time of the trial of this case, a court could also award actual damages against the agency if the court found by “clear and convincing evidence” that the agency “knowingly and willfully” failed to disclose a record in accordance with the PIA. GP § 4—362(d). 12 If the requestor substantially prevails in the action, the court may assess reasonable attorney’s fees and costs against the agency.

GP § 4-362(f). 13 B. Factual Background and Procedural History The record, as best we can determine, 14 reveals the following. 1. The Traffic Stop The bare essentials of the precipitating event—a traffic stop—are undisputed. While driving on September 14, 2010, Mr. Glass was stopped and detained by Officer Mark Collier of the Anne Arundel County Police Department, who was off duty at that time. Officer Collier issued a traffic citation to Mr. Glass for following too closely.

As a result of that encounter, Mr. Glass immediately filed a complaint against Officer Collier with the Police Department. The Police Department’s Internal Affairs Division launched an investigation. The incident also ²¹⁵ resulted in several successive PIA requests by Mr. Glass to the Police Department. At least two of those PIA requests spawned lawsuits. 15 2. 2011 PIA Request On March 18, 2011, Mr. Glass submitted a PIA request to the Police Department, seeking “all records” from the date of the traffic stop to the date of the request “that refer to or pertain to Gary A. Glass ...” (“2011 PIA Request”). 16 He specifically sought Officer Collier’s “logbook and notes,” records of calls made to and from Officer Collier’s cell phone, and, most importantly for our purposes, “all internal affairs files on [the] investigation into Mark Collier’s conduct” during the traffic stop (“IA File”), Apparently, some of the records described in the 2011 PIA Request did not exist and some had already been provided to Mr. Glass.

In a letter to Mr. Glass dated April 14, 2011, Brenda D. Fraser, the Acting Records Manager for the Police Department, explained that his request for Officer Collier’s IA File was being denied under the personnel records exception in the PIA. She noted that, because the IA File was created as part of an investigation of alleged employee misconduct, it was ²¹⁶ deemed a personnel record. Citing the statutory exception for personnel records, she informed Mr. Glass that the file could not be disclosed under the PIA without a court order. Finally, she advised Mr. Glass of his right, pursuant to the PIA, to seek judicial review of the denial of access. 3. 2011 PIA Lawsuit A few weeks later, on May 4, 2011, Mr. Glass filed suit against the County in the Circuit Court for Anne Arundel County, naming the County, the Police Department, the Police Chief, and the County Attorney as defendants and alleging violations of the PIA.

On December 22, 2011, the Circuit Court granted summary judgment in favor of the defendants and explained its reasoning in a written opinion. The court upheld the Police Department’s decision to withhold Officer Collier’s IA File, citing the personnel records exception and relying on this Court’s then-recent decision in Montgomery County v. Shropshire, 420 Md. 362 , 23 A.3d 205 (2011). 17 The court rejected Mr. Glass’ unsupported contentions that the Police Department had not been truthful in reporting the results of its search for records in response to his request. Mr. Glass appealed and the Court of Special Appeals affirmed the Circuit Court’s decision in an unreported opinion on May 28, 2013. This Court denied his petition for a writ of certiorari. 435 Md. 268 , 77 A.3d 1085 (2013). 4.

Disposition of the Traffic Citation In the meantime, the traffic citation that Officer Collier had issued to Mr. Glass had been litigated in the District Court of Maryland sitting in Anne Arundel County. Mr. Glass was acquitted at the trial of that case in November 2011. The details of that case are not germane to the issues before us. However, we note that, as part of discovery in that case, Mr. Glass obtained some of the requested records from the IA File after an in camera review of the file by the District Court ²¹⁷ judge under a procedure that treated that file as an otherwise privileged personnel record. 18 5. 2012 PIA Request On February 22, 2012—two months after the Circuit Court had upheld the Police Department’s withholding of the IA File, but before the resolution of the appeal of that decision— Mr. Glass submitted another PIA request to the Police Department (“2012 PIA Request”).

This time, Mr, Glass requested “[a]ny and all records of the police department ... on Gary A. Glass” without any temporal limitation 19 and without specifically requesting the IA File. Mr. Glass indicated on the form that he was willing to pay fees in connection with the request “with prior notification.” In response, Christine Ryder, the Police Records Manager, surveyed everyone in the Police Department by email. She responded to Mr. Glass in a letter dated March 21, 2012. First, Ms. Ryder alluded to a conversation between Mr. Glass and an Assistant County Attorney and stated that she would “not address grants and denials previously made.” Ms. Ryder then listed a number of records that were responsive to the 2012 PIA Request. 20 Of the listed records, Ms. Ryder indicated that the Police Department would withhold one file consisting of five confidential attorney-client communications—described as a “PIA file maintained by the department’s Records Manager”—based on the exception for records covered by attorney-client privilege.

She stated that the Police Department would ²¹⁸ provide copies of the other responsive records, totaling 46 pages, upon the payment by Mr. Glass of $11.50 in accordance with the Police Department’s fee schedule. In her letter, Ms. Ryder also informed Mr. Glass that she had asked the County’s Office of Information Technology (“OIT”) to search for archived email that might be responsive to his request for Police Department records, but she had not yet received the results of that inquiry. (Although not part of her letter, testimony at the trial indicated that the Police Department’s policy at that time was to store emails on the department’s computers for 90 days, after which they were archived with OIT.) Ms. Ryder also noted that the Police Department might have other records responsive to his request that were not indexed under his name and therefore had not been located. She solicited his assistance in providing any information that would help locate such records.

Finally, she advised Mr. Glass that he could seek judicial review under the PIA of the denial of the records covered by attorney-client privilege. On March 28, 2012, Mr. Glass responded to Ms. Ryder’s letter. He provided the names of 11 members of the Police Department whom he believed could have records “that pertain to me or to the incident on September 14, 2010 involving Officer Mark Collier and myself.” The list included Officer Collier, the Police Chief, and members of the department’s Internal Affairs Division, among others. Mr. Glass also listed the names of three commanders of various units of the department whom he believed could help locate electronic communications involving the other employees.

Ms. Ryder contacted each of the individuals named in Mr. Glass’ letter who still worked for the Police Department to double check whether they had records pertaining to Mr. Glass. In a response to Mr. Glass dated May 9, 2012, Ms. Ryder stated that her further inquiry based on the names Mr. Glass had listed had turned up one additional record (a “stored communication log”) that she provided to Mr. Glass at no charge. ²¹⁹ In that letter Ms. Ryder also reported the results of the search for archived email conducted by OIT. She stated that a search using the keyword “Glass” produced approximately 7,500 emails, and a second search using the keyword phrase “Gary Glass” narrowed that result to approximately 1,000 emails. She stated that the individual emails, however, would need to be inspected for attorney-client privilege before release.

Ms. Ryder estimated that it would take 250 hours to review 7,500 emails, which she estimated would result in a fee of $4,960 for the search and review time. Alternatively, she estimated that it would take 33 hours to review 1,000 emails, which would result in an estimated fee of $620. She asked Mr. Glass to let her know how he wished her to proceed. Although the letter itself did not request pre-payment of the estimated fee as a condition of proceeding with a review of the emails for privileged material, it is apparently undisputed that, if Mr. Glass had asked Ms. Ryder to proceed with one of the two options she offered, the County would have required prepayment to undertake the review.

Mr. Glass did not respond directly to Ms. Ryder’s request for further direction, but two weeks later sent a letter dated May 23, 2012 to the County Attorney, complaining that Ms. Ryder’s response did not comply with the PIA. Among other things, Mr. Glass stated his view that many of the 1,000 archived emails that contained the phrase “Gary Glass” were likely created by Ms. Ryder herself when she broadcast his 2012 PIA Request to the entire Police Department in her effort to find records responsive to that request. Mr. Glass expressed the view that OIT ought to be able to segregate such emails and thereby reduce the need to review them for privileged material. More broadly, he asserted that “[t]here is no reason why there would be attorney-client privilege in any of those records of Ms. Ryder’s search.” He asked the County Attorney to advise Ms. Ryder to conduct the search and review of the emails as Mr. Glass suggested and provide a new estimate of the number of emails requiring review for attorney-client privilege.

He also requested that the County waive any fees related to his request. The County Attorney replied in a brief letter dated May 31, 2012 that opined, without ²²⁰ elaboration, that Ms. Ryder’s response to Mr. Glass’s PIA request had been a “reasonable response ... consistent with state law.” 6. 2012 PIA Lawsuit Mr. Glass apparently decided not to proceed further with Ms. Ryder or the County Attorney and, instead, a couple weeks later, on June 19, 2012, filed another lawsuit against the County under the PIA in the Circuit Court for Anne Arundel County. 21 In the complaint, Mr. Glass made various general allegations that the County had violated the PIA in its response to his 2012 PIA Request, including failing to conduct a search reasonably calculated to discover responsive records, failing to comply with time limitations, charging an unreasonable fee, and failing to grant him a fee waiver. The specific factual allegations of the complaint focused on his traffic encounter with Officer Collier and the suggestion by Mr. Glass that the search of archived emails be conducted in a way that avoided emails seeking responses to his prior PIA requests. He asked the Circuit Court to order the County to produce a Vaughn index of the archived emails containing the phrase “Gary Glass,” to isolate those emails related to attorney-client communications and Ms. Ryder’s search in response to Mr. Glass’s PIA requests, and to release all other emails to Mr. Glass.

He also asked the court to order the County to waive any fees associated with its response to his PIA request and to pay him actual damages for its failure to provide the records. Finally, he asked for an award of attorney’s fees and costs. 7. 2013 PIA Request, Second IA Complaint, and Amended Court Complaint While he was litigating the County’s response to the 2012 PIA Request in the Circuit Court and its response to the 2011 ²²¹ PIA Request in the Court of Special Appeals, Mr. Glass submitted another PIA request to the County Executive and Police Chief on February 20, 2013 (“2013 PIA Request”). The 2013 PIA Request sought any records pertaining to him in the custody of the Police Department that were compiled from February 23, 2012—the day after his 2012 PIA Request—to the date of 2013 PIA Request. In the 2013 PIA Request, he gave some direction to the County on how to conduct the search for records.

Among other things, he stressed that he wanted only pre-existing records, not records created as part of the searches in response to his prior PIA requests, specified certain regional and national law enforcement databases he wished to be searched, and requested a waiver of any fees. In a letter dated March 7, 2013, Ms. Ryder advised Mr. Glass that she had forwarded his latest request to OIT to conduct an additional search for archived emails, reported that no responsive records were found in searches of certain County databases, stated that she was unable to do a keyword search of one electronic database but offered to undertake a manual search, and advised Mr. Glass to submit separate record requests to State and federal agencies with respect to other databases not under the County’s control. She estimated the fee for the manual search of the remaining database to be $2,560, declined to waive that fee, but suggested that Mr. Glass could refine the date ranges and individual users to be searched on that database in order to reduce the cost of the search. Mr. Glass promptly amended the complaint in his 2012 PIA Lawsuit to assert that the County’s response to his 2013 PIA Request violated the PIA.

The amended complaint also noted that he had made a second complaint to the Police Department concerning Officer Collier’s conduct after the trial of his traffic case in the District Court. In the amended complaint he asserted that the County had failed to disclose or properly claim an exception with respect to the IA File as it pertained ²²² to his second complaint against Officer Collier. 22 8. Circuit Court Rulings in 2012 PIA Lawsuit After filing the 2012 PIA Lawsuit, Mr. Glass pursued discovery against the County in that case and filed numerous motions over the next two years, which were decided by various judges of the Circuit Court. We focus here on the proceedings and rulings pertinent to the particular issues before us.

Archived emails As a result of discovery in the case, Mr. Glass learned that the results of the initial archived email search by OIT were contained on a USB memory stick. On December 12, 2012, he asked the Circuit Court to compel the County to produce the USB memory stick in the 2012 PIA Lawsuit under the civil discovery rules. On January 18, 2013, the Circuit Court granted Mr. Glass’ motion and ordered the County to produce all non-privileged documents contained on the USB memory stick within 10 days, and a privilege log as to any emails that the County withheld. Although the Circuit Court did not purport to be resolving the merits of the 2012 PIA Lawsuit with respect to the emails, the effect of this order was to grant Mr. Glass some of the relief that he sought—i.e., it compelled the County to carry out the proposal made in Ms. Ryder’s May 9, 2012 letter without requiring Mr. Glass to pay the fees associated with the review of the emails, thus effectively granting him the email production and fee waiver he had sought in his complaint.

During February 2013, the County undertook a review of the emails on the USB memory stick and eventually provided Mr. Glass with thousands of emails from the USB memory stick, but withheld some emails under a claim of privilege. ²²³ Apparently, all of the emails on the USB memory stick bore dates after November 2011. Shortly thereafter, Mr. Glass filed a number of motions, among which was a request that the Circuit Court award him summary judgment on the ground that the County had violated the PIA in its seareh for and disclosure of emails. After considering an opposing memorandum and affidavit filed by the County, a second judge of the Circuit Court denied that motion. On August 15, 2013, Mr. Glass again moved for partial summary judgment as to whether the County had violated the PIA with respect to disclosure of emails dated prior to November 2011.

At a hearing on January 23, 2014, a third judge of the Circuit Court held that the County 23 had violated the PIA and awarded partial summary judgment in favor of Mr. Glass on that motion. The Circuit Court did not provide an oral or written opinion explaining its reasoning. 24 It ordered the County to produce to Mr. Glass within 30 days all emails ²²⁴ for the period from September 14, 2010 through November 2011 that related to the traffic stop or that pertained to Mr. Glass, except for any emails that fell within an exception to the PIA’s general principle of disclosure, and ordered the County to identify any pertinent exception. Further sparring ensued in the Circuit Court concerning the adequacy of the County’s subsequent email searches, and the court ordered the County to perform certain searches based on specific key words, which led to the discovery of additional responsive archived emails, some of which the County withheld as privileged. The court also conducted an in camera review of the emails listed on the privilege log and ordered that some of them should be provided to Mr. Glass.

Although the court had initially granted partial summary judgment in favor of Mr. Glass and ordered the additional searches and disclosures, it ultimately declined to order any additional searches and made an explicit finding at a hearing on April 22, 2014 that the County’s searches for archived emails had been reasonable. A bench trial was held in January 2015 before a fourth judge of the Circuit Court. The issues at trial concerned whether the violations of the PIA by the County previously determined by the Circuit Court were knowing and willful, and would thus entitle Mr. Glass to an award of actual damages under GP § 4-362(d). Mr. Glass also sought to have the Circuit Court order the County undertake additional searches as a remedy, as well as to pay his attorney’s fees and costs.

At the conclusion of the trial, the judge stated that she intended to focus on whether the PIA violations that were the subject of the earlier summary judgment were knowing and willful, and that she would not revisit the basis on which such violations were determined. 25 ²²⁵ In a memorandum opinion issued on April 8, 2015, the Circuit Court concluded that the County knowingly and willfully violated the PIA in failing to conduct an adequate search for the emails requested by Mr. Glass. The court based that conclusion on the fact that the County had not retrieved emails for dates prior to November 2011 until it did so in response to orders issued during litigation of the 2012 PIA Lawsuit. Officer Collier’s IA File In the complaint that initiated his 2012 PIA lawsuit, Mr. Glass had not alleged that the County had violated the PIA by failing to disclose Officer Collier’s IA File in response to his 2012 PIA Request, This is not surprising as the IA File was the subject of his 2011 PIA Request and of the previous lawsuit he had filed based on that request. As recounted above, the Circuit Court had upheld the County’s denial of the IA file—a decision that was ultimately affirmed by the Court of Special Appeals in May 2013.

After the Circuit Court had held that the County had properly withheld the IA File in response to the 2011 PIA Request, but before the Court of Special Appeals had affirmed that decision, Mr. Glass amended his complaint in the 2012 PIA Lawsuit. The amendments added allegations related to his second internal affairs complaint about Officer Collier and asked the Court to order the County to provide a Vaughn index of materials in the IA File. In a motion for summary judgment filed the same day, Mr. Glass argued that the County violated the PIA when it did not address the IA File in its response to his 2012 PIA Request. Noting that the Circuit Court’s ruling against Mr. Glass with respect to his 2011 PIA Request for the contents of the IA File was on appeal, the County assured the Circuit Court that, if the Court of Special Appeals eventually directed the County to release the IA File, it would do so. ²²⁶ As noted above, Mr. Glass had obtained some documents from the IA File when the District Court conducted an in camera review of that file in connection with the District Court trial of his traffic citation.

On June 19, 2013, in response to a motion by Mr. Glass in the 2012 PIA Lawsuit, the Circuit Court ordered the County to provide Mr. Glass with a Vaughn index of records placed in the IA File subsequent to the ruling in the 2011 PIA Lawsuit. 26 At a hearing on January 23, 2014, before a different judge of the Circuit Court, the court granted Mr. Glass’ request for reconsideration and ordered the County to also provide a Vaughn index of material placed in the IA File prior to the ruling in the 2011 PIA Lawsuit. At the same time, the court awarded partial summary judgment in favor of Mr. Glass with respect to the IA File, declared that the County had violated the PIA by failing to provide severable materials from that file, ordered the County to release such materials, and ordered the County to waive any fees. The Circuit Court instructed the County to make “necessary redactions of the names and identifying information of personnel and witnesses, and redactions of information that is attorney-client privileged or attorney work product.” The court did not provide an opinion, either oral or written, explaining the reasoning for its ruling. 27 It is notable that, in requesting that ruling, Mr. Glass relied on this Court’s then-recent decision in Maryland State Police v. NAACP Branches, 430 Md. 179 , 59 A.3d 1037 (2013), which concerned a PIA request for severable portions of complaints made to the Maryland State Police about troopers. ²²⁷ In doing so, he pointed out that the Circuit Court’s prior ruling denying him access to the IA File had preceded NAACP Branches? 28 Following the bench trial in January 2015 before a different judge of the Circuit Court, the court elaborated on the issues concerning the IA File in its memorandum opinion. In its opinion, the Circuit Court concluded that the County did not knowingly and willfully violate the PIA when it withheld records from the IA File because the County did so in the belief that the IA File was a personnel record and that the PIA forbade disclosure of its contents.

The Circuit Court noted that, when Ms. Ryder initially responded to the 2012 Request, the Circuit Court had already upheld the County’s decision to deny access to the IA File in response to the 2011 PIA Request. The court noted that the court’s order in January 2014 requiring release of severable material was likely based on its understanding of the effect of the NAACP Branches decision, which had been issued after the County’s response to the 2012 PIA Request. Accordingly, the Circuit Court reasoned, there was not clear and convincing evidence that the County violated a known legal duty under the PIA when it withheld the IA File. Records from Police Chiefs Office As noted above, Mr. Glass responded to Ms. Ryder’s suggestion that he provide guidance on where she might find records responsive to his 2012 PIA Request by listing 11 members of the Police Department whom he believed had records responsive to that request.

Among those individuals was the then-incumbent Police Chief. On October 30, 2014, Mr. Glass moved for partial summary judgment on the basis that the County had failed to disclose records from the Police Chiefs office. Mr. Glass pointed to a letter sent on August 25, 2011 by the Police Chief to the State’s Attorney, requesting assignment of a prosecutor with ²²⁸ respect to Mr. Glass’ traffic citation concerning the September 14, 2010 traffic stop. 29 Mr. Glass pointed out that this letter likely still existed at the time of his 2012 PIA Request and that, because it referenced Mr. Glass, was responsive to that request, but had not been provided by the County in response to that request. Mr. Glass also relied on a discovery deposition of Ms. Ryder.

In that deposition, she stated that she was aware that most of the Police Chiefs records were indexed chronologically rather than by name, but admitted that she had not given the Police Chiefs assistant any guidance on what time frames to search and that, to her knowledge, the Police Chiefs assistant did not perform any additional searches of records in the Police Chiefs office. Opposing this motion, the County pointed to two emails. In the first, dated March 6, 2012, Ms. Ryder asked the Police Chiefs assistant about obtaining, in response to the 2012 PIA Request, (1) any correspondence sent by Mr. Glass to the Police Chief and (2) any notes of calls made by Mr. Glass to the Police Chiefs office. In the second email, dated April 10, 2012, the Police Chief told his assistant (apparently in response to an inquiry about records responsive to the 2012 PIA Request), that he personally did not possess any responsive records, but inquired whether she knew “of any records in our files.” This evidence, the County argued, showed that summary judgment was inappropriate.

On January 18, 2015, the Circuit Court denied the motion. At the bench trial held the following week, Ms. Ryder again testified about her efforts to obtain any responsive records located in the Police Chiefs office. She described how the Police Chiefs assistant told her that, because of the predomi ²²⁹ nantly chronological filing system, it would take “forever” to complete a search of those files without a specific date range and offered to search further, if a date range were specified. , In its memorandum opinion following the bench trial, the Circuit Court found that the County’s efforts to obtain responsive records from the Police Chiefs office beyond the search of records filed by name were inadequate, and that this constituted a knowing and willful violation of the PIA. The Circuit Court reasoned that Ms. Ryder knew that the files in the Police Chiefs office were organized chronologically, but that she had failed to provide the Police Chiefs secretary with “a relevant date range” and the search was thus limited to a few records filed by name.

Remedial Search Issue As noted earlier, at the bench trial in January 2015, Mr. Glass asked the Circuit Court to award him damages, to order the County to conduct “remedial searches,” and to award him attorney’s fees and costs. With respect to his request for remedial searches, Mr. Glass asked the court to order the County to conduct a search of all of its computer files, including back up tapes, as well as all word processing files, among other things. The Circuit Court found that Mr. Glass had not established actual damages and declined to award any. 30 Nor did the court order any additional searches by the County. It deferred assessment of attorney’s fees and costs to a later hearing. 9.

Second Appeal to the Court of Special Appeals Mr. Glass appealed the Circuit Court’s decision, raising a number of issues about the conduct of the trial, the Circuit Court’s findings, and the remedies he believed it should have ²³⁰ ordered. Mr. Glass challenged, among other things, the Circuit Court’s conclusion that the County’s refusal to disclose records from the IA File was not a knowing and willful violation of the PIA. The County cross-appealed, challenging the Circuit Court’s conclusions that the County had knowingly and willfully violated the PIA with respect to its searches for archived emails dated prior to November 2011 and for records in the Police Chiefs office. In its cross-appeal, the County also argued that the County had not violated the PIA when it had declined to provide records from Officer Collier’s IA File.

In an unreported opinion issued on March 9, 2016, the Court of Special Appeals affirmed a number of decisions of the Circuit Court related to the trial, but concluded that the Circuit Court had erred in holding that the County had knowingly and willfully violated the PIA. As a result, it considered the issues concerning remedies for such violations to be moot. The court also held that the Circuit Court was not clearly erroneous when it declined to order injunctive relief in the form of follow-up or “remedial” searches. Mr. Glass petitioned this Court for a writ of certiorari, which we granted.

II Discussion In some respects, there is less at stake here than appears at first glance. In a typical case of judicial review of an agency response to a PIA request, the court must resolve whether the requestor gets access to the records in question. In this case, Mr. Glass has had access, for the most part, to many of the records he sought. Rather, the chief issue before us is whether there is clear and convincing evidence that the County’s response to his 2012 PIA Request was a knowing and willful violation of the PIA and whether Mr. Glass is entitled to the “remedial searches” that he seeks. 31 Mr. Glass argues that the ²³¹ Court of Special Appeals erred in answering those questions “no” and focuses on the County’s search as to three categories of records—the archived emails, the IA File, and records in the Police Chiefs office.

We agree with the Court of Special Appeals that the record in this case does not disclose evidence of a violation of the PIA, much less clear and convincing evidence of a knowing and willful one. Moreover, we agree with the Circuit Court and the Court of Special Appeals that Mr. Glass is not entitled to injunctive relief in the form of follow-up or “remedial” searches. A Standard of Review As recounted above, the Circuit Court awarded summary judgment in favor of Mr. Glass with respect to certain categories of records. Given that summary judgment turns on a determination of law rather than fact, we review such a determination without deference to the Circuit Court.

Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598 , 80 A.3d 269 (2013). The bench trial conducted by the Circuit Court concerned whether those violations could be characterized as “knowing and willful” and, if so, whether Mr. Glass was entitled to damages and an order directing further record searches by the County. When a matter is tried by a court without a jury, an appellate court reviews the case on both the law and the evidence. Maryland Rule 8-131(c).

The trial court’s judgment on the evidence is not to be set aside unless clearly erroneous. Id. However, no deference is owed to its assessment of the law. Tribbitt v. State, 403 Md. 638, 644 , 943 A.2d 1260 (2008).

B. Whether the County Violated the PIA 1. The Requirement of a Reasonable Search Much of this case turns on the adequacy of the County’s response to the 2012 PIA Request, particularly the breadth of its search for certain records. We begin with a few words on what kind of search the PIA requires. ²³² An agency that receives a PIA request must conduct a search in good faith that is reasonably designed to capture all responsive records. In cases under FOIA, the federal courts have characterized such a search as “a good faith effort to conduct a search for the requested records, using methods that can be reasonably expected to produce the information requested.” Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

This does not mean that the agency must robotically examine every record in its possession, running up an extravagant fee and diverting public resources in furtherance of a futile effort; rather, the search should be focused on where responsive records are likely to be found. The reasonableness of an agency’s search is to be measured prospectively by how the agency designed the effort to find responsive records, not retrospectively by its success in locating every responsive record. A search may be reasonable and adequate without being perfect. See, e.g., Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th Cir. 1994) (whether search is reasonable is not assessed by “whether every single potentially responsive document has been unearthed”).

It is often true that a requestor is at a disadvantage in formulating a PIA request because the requestor does not know what records the agency keeps or how it keeps them. It is part of every agency’s mission to be as transparent as the State’s sunshine laws, including the PIA, require it to be. A public records request is not an occasion for a game of hide and seek. For that reason, if possible, an agency should in good faith provide some reasonable assistance to the requestor in refining the request for the records the requestor seeks.

Of course, nothing requires the requestor to accept such assistance. It is also sometimes the case that a requestor, suspicious of the particular agency or of government in general, submits a broadly-worded request, intending to afford the agency no excuse for not producing for the records the requestor really wants. Literal compliance with such a request, however, would often require such a diversion of resources and agency time as ²³³ to amount to a huge expense. In practice, a productive response to a PIA request is often an iterative process in which the agency