Kline v. Fuller

WILNER, Judge. In 1970 the General Assembly added a new article (art. 76A) to the Code, entitled “Public Information”. The heart ²⁹⁷ of the new statute was § 2(a), which provided, in relevant part, that, except as otherwise provided by law, “[a]ll public records shall be open for inspection by any person at reasonable times.” The term “public records” was defined in § 1(b) as including all records, except those that are privileged or confidential by law, that (1) were made by the State, a political subdivision of the State, or any agency of the State or a subdivision, or (2) were received by any of those entities in connection with the transaction of public business. The statute authorized the exclusion of certain kinds of records from public view and established a procedure for determining whether the inspection of particular records would be permitted.

In 1974, the Charles County delegation succeeded in persuading the Legislature to exempt Charles County from the purview of the public general law (§§ 1 through 5 of art. 76A). By 1974 Md. Laws, ch. 239, the General Assembly enacted the Charles County Freedom of Information Act, which, among other things, (1) provided, in a new § 2(e) to art. 76A (now § 2(b) of that article), that “[i]n Charles County, except for records kept by officials, agencies or departments of the State of Maryland, public information shall be regulated by section 6 of this article” (emphasis supplied), and (2) in new § 6, set forth provisions and procedures governing access to public records in Charles County that differed from those stated in the public general law. 1 Finally, in 1978 and 1982, the public general law was amended in a number of respects. Those amendments, some of which we shall discuss later in this Opinion, did not affect the scope of the public general law or its definition of “public records”. Nor did they purport to change the Charles County law. ²⁹⁸ As presently constituted, the public general law, in § 1A of art. 76A, sets forth a clear legislative policy.

It states, in relevant part: “[A]ll persons are entitled to information regarding the affairs of government and the official acts of those who represent them as public officials and employees. To this end, the provisions of this act shall be construed in every instance with the view toward public access, unless an unwarranted invasion of the privacy of a person in interest would result therefrom, and the minimization of costs and time delays to persons requesting information.” (Emphasis supplied.) Section 2(a), in addition to stating the general requirement that “[a]ll public records shall be open for inspection by any person at reasonable times” requires the “official custodian” of public records to make and publish rules regarding the timely inspection and production of such records. Section 3(d) provides that, “upon written request for access to any public record,” the custodian must either (1) grant the request and produce the record “immediately or within a reasonable period, not to exceed 30 days as may be required to retrieve the information”, or (2) within the thirty-day period, deny the request and notify the applicant of the denial. If the person to whom the application is submitted does not, in fact, have custody or control of the record, he must, within ten working days, “notify the applicant of this fact and if known, the custodian of the record and the location or possible location thereof.” § 3(d)(3).

Finally, for purposes of this appeal, § 5(a) permits an applicant who is denied the right to inspect public records to seek administrative review of that denial if the agency maintaining the record is subject to the Administrative Procedure Act, and, in any case, to seek judicial review. No particular form of judicial review is specified. The law permits the circuit court, upon complaint of the applicant, to order the agency to produce the record (or, conversely, to enjoin the agency from continuing to withhold the record) ²⁹⁹ and, under certain circumstances, to award damages or attorneys’ fees. In § 6(c) of art. 76A, the Legislature stated for Charles County a public policy similar to, though perhaps more limited than, that stated for the rest of the State in § 1A.

Except as otherwise provided by law, “all Charles County official records shall be open to inspection and copying by any citizens having a personal or legal interest in specified records...” and access to those records “shall not be denied to any citizen. ...” 2 The term “official records” is defined in § 6(b)(2) as “the records pertaining to completed actions or transactions which the groups agencies or organizations, enumerated in (1) of this section, are required by statute to keep and maintain, or reports paid for by public funds.” Among the groups “enumerated in (1)” is any board, bureau, commission, or agency of Charles County. In contrast to the judicial review provisions of the public general law, § 6(g) states: “Any person denied the rights and privileges conferred by this subtitle may proceed to enforce those rights and privileges by petition for mandamus or injunction, supported by an affidavit showing good cause, addressed to the circuit court having jurisdiction of such matters, in the county in which the rights and privileges were denied. The petition shall be heard within seven days from the time it is made.” (Emphasis supplied.) The issue laid before us by the parties in this appeal is which of these laws — the public general law (§§ 1-5) or the public local law for Charles County (§§ 2(b) and 6) — applies with respect to records kept by the sheriff of Charles County but which pertain to matters under the jurisdiction of the county Board of Public Safety. ³⁰⁰ I. The Sheriff And His Office Notwithstanding that he is elected on a county-wide basis and that his jurisdiction generally does not extend beyond the county borders, the sheriff of Charles County, like his counterparts in the other twenty-three political subdivisions of the State, is a State, not a county, officer. See 6 Op.

Att’y Gen. 427, 430 (1921); 50 Op. Att’y Gen. 346 (1965). His office is created by the State Constitution (Art. IV, §44); if the office becomes vacant between elections, the vacancy is filled by appointment of the Governor; the sheriff serves process issued by State courts, and indeed may serve it outside of his home county (Md.Code Ann. Courts art., § 2 — 301(b)); and his salary is determined or provided for by the General Assembly. 3 There can be little doubt that the sheriff is, indeed, an official of the State of Maryland. Although the sheriff is a State official, his duties and authority are not uniform throughout the State.

The Constitution (Art. IV, §§ 44) permits him to “exercise such powers and perform such duties as now are or may hereafter be fixed by law”; 4 and, primarily through public local law, the General Assembly has treated the sheriff somewhat differently from county to county. In some counties, the sheriff does little more than serve civil process; in others, including Charles County, the sheriff and his deputies also act as the county police force. In Charles County, the organization and functions of the sheriff’s office are governed by § 378 of the Public Local Laws of Charles County (1969, 1977 Supp.). Subsection (a) ³⁰¹ of that section provides that the “Office of Sheriff of Charles County” consists of (1) the sheriff and his deputies, as authorized by Courts art., § 2-309, (2) the Board of Public Safety, a three-member body consisting of one county commissioner, one person appointed by the circuit court judge, 5 and one person appointed by the county’s legislative delegation, and (3) such other employees as are authorized by law.

Responsibility for the staffing and operation of the “Office of Sheriff” is split between the sheriff and the Board of Public Safety. The board determines the number of deputy sheriffs and actually makes the appointments (§ 378(c)(4)). The sheriff, on the other hand, has “control and supervision over other members of his office and shall assign the members thereof, to such duties and hours as he may deem necessary, and shall make such rules and regulations for the proper government, discipline, and operation of his office as he may deem best to promote its efficiency.” § 378(e). He may, among other things, “in his discretion, suspend without pay, remove, dismiss, demote or discharge any member of his office” for certain causes. § 378(g).

Any person so suspended or removed may appeal to the board, which, after a hearing, may affirm, modify, or repeal the action of the sheriff. Id. But see the Law Enforcement Officers’ Bill of Rights (Md.Code Ann. art. 27, §§ 727-734D). Most aspects of personnel administration in the sheriff’s office are governed by merit system regulations adopted by the county commissioners, “to which all of the members of the Sheriff’s office, except the Sheriff, shall be subject.” Under these regulations, the Board of Public Safety is empowered to appoint all merit system personnel in the sheriff’s office, to review and decide upon all requests “from ³⁰² the supervisory appointing authority” for promotions and in-grade pay increases, and to hear, investigate and decide grievances presented to the board.

II

The Present Controversy Charles Kline, the appellant here, is a merit system employee of the sheriff’s office. He is a deputy sheriff, having the rank of patrolman first class. Mr. Kline is aggrieved that he has received no promotion since 1977 — that he has been a patrolman first class longer than anyone else in the sheriff’s office — and has expressed the belief that the sheriff may have “retaliated against him” because of his “reasonable] exercise of his right of free speech.” It appears that, at some point, Mr. Kline filed a grievance with the Board of Public Safety, that he actually appeared before that board on one occasion with respect to that grievance, and that, because the board was not then prepared to conduct a hearing, the matter was postponed. It was apparently in conjunction with that grievance that counsel for Mr. Kline, on June 23, 1982, sent' a letter to the sheriff requesting “pursuant to Art. 76A of the Anno.

Code” permission to inspect and obtain copies of eight categories of documents. In response to that letter, the sheriff permitted counsel to inspect certain of those documents, but failed to produce others. The inspection, and with it the final denial of access to the remaining records requested, occurred on August 3,1982. 6 On October 28,1982, appellant commenced this proceeding with a petition for inspection and copying of records. Although he complained about the sheriff’s refusal to allow access to three categories of documents, he asked ³⁰³ the court to order the sheriff to produce only two categories: (1) records “pertaining to the methodology utilized by the Sheriff’s Department of Charles County . .. since January 1,1973, to select personnel for promotion”, and (2) records of correspondence between the sheriff and the local lodge of the Fraternal Order of Police. 7 Aside from attorneys’ fees and costs, Kline’s specific requests were that the court order the sheriff to produce those documents and provide him with a list of those documents asserted to be exempt from disclosure and the basis for the withholding of each such document.

The sheriff responded to Kline’s petition with a motion under Md.Rule 323a to dismiss on the grounds that Kline had failed to avail himself of an appropriate administrative remedy (Md.Rule 323a(10)), and that his petition was deficient in that he had failed to file the affidavit required by art. 76A, § 6(g). The sheriff’s position was, and remains, that (1) the records sought by Kline deal with personnel administration, (2) such administration is under the control of the Board of Public Safety, which is a county agency, (3) the public local law (i.e§§ 2(b) and 6)) and not the public general law therefore applies, (4) no request was ever made of the board for any of the records in dispute, and (5) under the public local law, judicial review is not available unless the available administrative remedy is first exhausted. The Circuit Court for Charles County agreed with the sheriff, concluding that the public local law (§ 6) was the applicable one, and that “there are administrative remedies that are obviously still available and that have not yet been complied with.” On that basis, the sheriff’s motion was granted and the petition was dismissed.

III

Discussion The court erred in concluding that the public general law was not applicable with respect to Kline’s request. As ³⁰⁴ we have noted, the exemption for Charles County stated in § 2(b) of art. 76A does not apply to “records kept by officials ... of the State of Maryland... . ” (Emphasis supplied.) Section 1(b) which defines the “public records” subject to the public general law includes “any paper, correspondence ... or other written document ... that have been made by ... any agency or instrumentality of the State ... or received by them in connection with the transaction of public business.” It is clear from these provisions that the applicability of the public general law does not depend in any way upon whether the records in question pertain to matters within the particular official’s (or unit’s) jurisdiction. If they fall within the definition of “public records”