Kirwan v. the Diamondback

⁷⁹ ELDRIDGE, Judge. We issued a writ of certiorari in this case to decide whether the Maryland Public Information Act, Maryland Code (1984, 1995 Repl.Vol., 1997 Supp.), § 10-611 through § 10-628 of the State Government Article, or the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232 (g), authorizes the nondisclosure of certain information requested from the University of Maryland, College Park, by The Diamondback, a campus newspaper. We must also decide whether the trial judge erred in refusing to award attorney fees to The Diamondback. I. In February 1996 the University of Maryland, College Park campus, notified the National Collegiate Athletic Association (NCAA) that a student-athlete accepted money from a former coach to pay the student-athlete’s parking tickets.

The student-athlete was suspended for three games as a result. The Diamondback began investigating this incident and other alleged incidents involving the men’s basketball team. The investigation was in response to allegations that certain members of the men’s basketball team were parking illegally on campus, for example parking in handicapped spaces, and were receiving preferential treatment from the University with respect to the parking violation fines imposed. On several occasions, The Diamondback requested documents pursuant to the Maryland Public Information Act, Code (1984, 1995 Repl.Vol., 1997 Supp.), § 10-611 through § 10-628 of the State Government Article.

The documents requested were: (1) copies of all correspondence between the University and the NCAA involving the student-athlete who was suspended and any other related correspondence during February 1996; (2) records relating to campus parking violations committed by other members of the men’s basketball team; and (3) records relating to parking violations committed by Gary Williams, who is the head coach of the men’s basketball team. ⁸⁰ The University denied the requests on the ground that the Maryland Public Information Act did not authorize disclosure of the documents. The University claimed that records of any parking tickets received by Coach Williams are personnel records and therefore nondisclosable under the Maryland statute, and also that the records of parking tickets are financial records and thus exempt from disclosure. In addition, the University asserted that the documents relating to the student-athletes are educational records and that the federal Family Educational and Privacy Rights Act, 20 U.S.C. § 1232 (g), prohibits disclosure. The Diamondback filed the present action in the Circuit Court for Prince George’s County to compel the University to disclose the requested documents.

The plaintiff also requested attorney fees. The parties agreed that there were no factual issues to be resolved, and the court decided the case on the plaintiffs summary judgment motion. The court granted the plaintiffs request for the documents but denied the request for attorney fees. The University appealed to the Court of Special Appeals, and The Diamondback filed a cross-appeal.

Before the Court of Special Appeals heard the case, we issued a writ of certiorari. Kirwan v. Diamondback, 346 Md. 372 , 697 A.2d 112 (1997).

II

The Maryland Public Information Act establishes a public policy and a general presumption in favor of disclosure of government or public documents. The statute thus provides (§ 10-612(a) and (b) of the State Government Article): “(a) General Right to information.—All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees. (b) General construction.—To carry out the right set forth in subsection (a) of this section, unless an unwarranted invasion of the privacy of a person in interest would result, ⁸¹ this Part III of this subtitle shall be construed in favor of permitting inspection of a public record, with the least cost and least delay to the person or governmental unit that requests the inspection.” The statute also contains a broad definition of a “public record.” 1 2345678910Section 10-613(a) of the Act states that, “[e]xcept as otherwise provided by law, a custodian shall permit a person or governmental unit to inspect any public record at any reasonable time.” Sections 10-615 through 10-617 delineate certain public records which are not disclosable, and § 10-618 deals with “permissible denials.” Recently this Court in Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 73 , 716 A.2d 258, 262 (1998), quoting AS. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 32 , 464 A.2d 1068, 1071 (1983), reiterated that “ ‘the 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.’ ” We have on several occasions explained that the provisions of the statute “must be liberally construed ... in order to effectuate the Public Information Act’s broad remedial purpose.” AS.

Abell Publishing Co. v. Mezzanote, supra, 297 Md. at 32 , 464 A.2d at 1071 . See Cranford v. Montgomery County, 300 Md. 759, 771 , 481 A.2d ⁸² 221, 227 (1984); Faulk v. State’s Attorney for Harford County, 299 Md. 493, 506-507 , 474 A.2d 880, 887 (1984). The University asserts that all of the requested documents fall into one or more of the exemptions from disclosure set forth in the Maryland Public Information Act and that, therefore, the documents need not be released. The University claims that any records concerning parking tickets received by Coach Williams are exempt from disclosure under § 10—616(i) of the Act because they constitute personnel records.

The University further argues that the records regarding the student-athletes contain financial information and thus are exempt from disclosure under § 10—617(f). Finally, the University maintains that disclosure of the records would be “contrary to the public interest” in violation of § 10-618 and would be an “unwarranted invasion” of privacy in violation of § 10-612. A. We shall first address the University’s contention that documents relating to any parking tickets that Coach Williams may have received are personnel records. Personnel records are exempt from disclosure under § 10-616 of the Maryland statute which provides in pertinent part as follows: “(a) In general.—Unless otherwise provided by law, a custodian shall deny inspection of a public record, as provided in this section.

(i) Personnel records.—(1) Subject to paragraph (2) of this subsection, a custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information.” The term “personnel record” is not expressly defined in the statute. Nonetheless, the language of subsection (i) discloses what type of documents the Legislature considered to be personnel records. The statute lists three categories of documents which are: (1) an application for employment; (2) performance rating; and (3) scholastic achievement. Al ⁸³ though this list was probably not intended to be exhaustive, it does reflect a legislative intent that “personnel records” mean those documents that directly pertain to employment and an employee’s ability to perform a job.

Whether Coach Williams received parking tickets has little or nothing to do with his employment, his status as an employee, or his ability as a coach. It means only that he was alleged to have parked illegally. The University’s theory seems to be that, because the campus police issue the tickets and the Department of Campus Parking matches those tickets to students and employees, records of parking tickets somehow become personnel records. At the University, the campus police issue tickets and then those tickets are sent to the Department of Campus Parking.

The Department of Campus Parking attempts to match the vehicles that were ticketed to a student or employee at the University. If the Department of Campus Parking succeeds in matching a student or employee to a vehicle ticketed, the Bursar’s office posts the fine to the individual’s account. If the Department of Campus Parking is unsuccessful in matching the ticketed vehicle to a student or employee, the ticket is sent to the Maryland Motor Vehicle Administration. The fact that parking tickets issued on the College Park campus are handled differently than parking tickets elsewhere does not transform a parking ticket received by an employee into a personnel record.

A parking ticket received by anyone else at his or her place of employment would ordinarily not be considered a personnel record. A parking ticket is simply a document charging a very minor misdemeanor. Records of tickets issued by the campus police do not relate to Coach William’s hiring, discipline, promotion, dismissal, or any matter involving his status as an employee. Accordingly, they do not fit within the commonly understood meaning of the term “personnel records.” See Blandon v. State, 304 Md. 316, 319 , 498 A.2d 1195, 1196 (1985) (the Court will “reject a proposed statutory interpretation if its consequences are inconsistent with common sense”). ⁸⁴ As previously discussed, the policy of the Public Information Act is to allow access to public records.

Generally, the statute should be interpreted to favor disclosure. In light of this policy, we do not believe that the General Assembly intended that any record identifying,an employee would be exempt from disclosure as a personnel record. Instead, the General Assembly likely intended that the term “personnel records” retain its common sense meaning. This is indicated by the list following the prohibition on the release of the personnel records.

The release of information regarding parking tickets accumulated by Coach Williams is not within the personnel records exemption contained in the statute. 2 B. The University alternatively argues that records relating to parking tickets accumulated by the students and Coach Williams constitute financial information which is exempt from disclosure by § 10-617. Section 10-617 states in relevant part as follows: “(a) In general.—Unless otherwise provided by law, a custodian shall deny inspection of a part of a public record, as provided in this section. ⁸⁵ (f) Financial information.—(1) This subsection does not apply to the salary of a public employee. (2) Subject to paragraph (3) of this subsection, a custodian shall deny inspection of the part of a public record that contains information about the finances of an individual, including assets, income, liabilities, net worth, bank balances, financial history or activities, or creditworthiness.” The University asserts that the failure to pay a parking ticket is a “financial matter between those individuals and the University, and the [statutory] exemption for financial records protects the requested records from disclosure.” (Appellant’s brief at 20). Like the term “personnel records,” the term “financial information” is not expressly defined in the statute, but the language of subsection 10-617(f)(2) indicates what type of information the Legislature considered to be financial information.

Records of parking tickets would not seem to fall in the same category as information about “assets, income, liabilities, net worth, bank balances, financial history or activities, or creditworthiness.” The University argues that records of parking tickets are records of indebtedness to the University and, as such, constitute “financial information.” A principal problem with the University’s argument is its equating a parking ticket with a debt. As previously mentioned, a parking ticket is a citation charging a misdemeanor; it is not a record of indebtedness. See Maryland Code (1977, 1992 Repl.Vol., 1997 Supp.), §§ 26-201 through 26-204, and 26-301 through 26-306 of the Transportation Article. See also Maryland Rule 4-102(b) (“ ‘Citation’ means a charging document, other than an indictment, information, or statement of charges, issued to a defendant by a peace officer or other person authorized by law to do so”).

Section 26-301(b) of the Transportation Article grants the University the authority to establish parking regulations and to provide “for the issuance of a citation” for a violation of a parking regulation. See also Code (1978, 1997 Repl.Vol), § 12-109(e)(17) of the Education Article (authorizes the Presi ⁸⁶ dent of the College Park campus to “[establish traffic regulations for the campus”). The recipient of the parking ticket can either pay the fine to the University or elect to stand trial in the District Court of Maryland. See § 26-303(a) of the Transportation Article (“(1) The person receiving a citation under this subtitle shall: (i) Pay for the parking violation directly to the ...

State agency serving the citation; or (ii) Elect to stand trial for the violation”). If the recipient of the parking citation fails either to pay the fine or to stand trial, the University is authorized to notify the Maryland Motor Vehicle Administration which may then refuse to “register or transfer the registration of any vehicle involved in a parking violation.” § 26-305. The basic nature of the parking citation is not changed because the University normally does not report students or employees for violations of the parking regulations or failure to pay fines for violations of parking regulations; the University has the right to do so. Similarly, the nature of the parking ticket is not changed because the University collects the fine itself as it is authorized to do by § 26-303.

Throughout the Transportation Article of the Maryland Code, the sanction for a parking violation is referred to as a fine and not a debt. See, e.g., §§ 26—305(a)(1)(i), 26-305(a)(3)(i), 26-305(c)(2), 26-305(e), of the Transportation Article. The fact that those who violate the parking regulations at the College Park campus may pay the University rather than another agency of the State does not change the sanction imposed from a fine to a debt. A debt and a fine are very different from each other.

Kerr v. Kerr, 287 Md. 363, 370 , 412 A.2d 1001, 1005 , (1980) (“ ‘fines’ ... whether in the nature of civil or criminal penalties, are not debts within the meaning of section 38 [constitutional prohibition on imprisonment for debt]”); Brown v. Brown, 287 Md. 273, 279-280 , 412 A.2d 396, 400 , (1980) (“the term debt does not include fines or penalties levied against one who has been adjudged in violation of the public law”); Ruggles v. State, 120 Md. 553, 564 , 87 A. 1080, 1084 (1913) (recognizing that the monetary penalty authorized by statute for “operating a motor vehicle without a license” is ⁸⁷ a fine and not a debt); State v. Mace, 5 Md. 337, 350-351 (1854) (holding that, while it is unconstitutional to imprison someone for failure to pay a debt, it is constitutional to imprison someone for failure to pay a fine; “the term debt is to be understood as an obligation, arising otherwise than from the sentence of a court for the breach of the public peace or commission of a crime”). See also Middleton v. Middleton, 329 Md. 627, 630 , 620 A.2d 1363, 1364 (1993). In sum, a parking ticket is a charging document accusing the recipient of a petty crime, and the monetary penalty imposed for a parking violation is a fine rather than a debt. Records of parking tickets, therefore, are not records of indebtedness.

Consequently, they would not constitute “financial information” under the University’s theory that records of indebtedness constitute “financial information” within the meaning of the Public Information Act. Moreover, the Public Information Act itself indicates that most parking tickets are not exempt from disclosure. Specifically, § 10-616(h) of the Act exempts from disclosure police reports of traffic accidents, criminal charging documents, and “traffic citations” only if the “request [for] inspection of records [is] for the purpose of soliciting or marketing legal services.” (Emphasis added). Clearly, if the General Assembly believed that traffic tickets were financial records, on the theory that a ticket represents a debt owed to the state, then there would have been no need to deal with traffic tickets in § 10-616(h) which allows broad access to tickets except under very narrow circumstances.

If records of traffic tickets were nondisclosable under the financial information exemption, the General Assembly would not have dealt with them differently in § 10-616(h). Obviously, the General Assembly did not intend to classify records of parking tickets as financial information and exempt records of the tickets from disclosure. C. The University argues that disclosure of the requested records “is against the public interest” and therefore would be ⁸⁸ in violation of § 10-618 of the Maryland Public Information Act. (Appellants’ brief at 15-16).

According to the University, disclosure is contrary to the public interest because “it would have a chilling effect on the University’s obligation to self-report any NCAA violations” and “would discourage students from coming forward to admit to or advise the University about potential NCAA rules violations.” Id. at 16. The University’s “public interest” argument is based upon the language of § 10-618 of the Public Information Act relating to “permissible denials.” Section 10-618(a) permits a custodian of public records to deny inspection of records “as provided in this section” if the custodian believes that inspection “would be contrary to the public interest.” The permissible “public interest” denials provided for in § 10-618 are limited to an “interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit” (§ 10—618(b)), “examination information” (§ 10-618(c)), “details of a research project” (§ 10-618(d)), “a real estate appraisal” under some circumstances (§ 10-618(e)), records of investigations conducted by specified officials and certain other “investigatory file[s]” (§ 10—618(f)), and “information concerning the site-specific location of’ specified plants, animals, or historic properties (§ 10-618(g)). The records sought in the present case clearly do not fall into any of the categories encompassed by § 10-618, and the University does not argue otherwise. Consequently, the authority of a custodian to deny inspection based upon “the public interest,” provided for in § 10-618, has no application to the records sought by The Diamondback.

The University, citing § 10-612 of the Maryland Public Information Act, asserts that disclosure of the student-athletes’ parking ticket records would be “an unwarranted invasion of privacy” because it would subject the student-athletes and their families “to extreme embarrassment and humiliation.” (Appellants’