Lamson v. Montgomery Cnty.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ. Hotten, J. The issue before us is a request for the release of notes containing possible personnel information, relating to the performance of Bernadette Fowler Lamson ("Petitioner") as an employee of the Montgomery County Attorney's office. Petitioner filed a Maryland Public Information Act ("MPIA") 1 request relative to her personnel file, seeking the disclosure of supervisory notes that were withheld by her employer, Montgomery County ("Respondent") and her supervisor, Silvia Kinch ("Ms. Kinch"). The disputed notes are divisible into two separate categories.

The first consists of three pages of notes that were removed from Petitioner's personnel folder prior to its disclosure and the second set consists of notes that are contained in a personal journal in the exclusive possession and control of Ms. Kinch. With regard to both, Petitioner asserts that Respondent improperly withheld the notes when responding to her MPIA request. In response, Respondent contends that the notes are privileged, non-public information. Petitioner now seeks review of the grant of summary judgment in Respondent's favor, to determine whether the disputed notes were subject to disclosure under the MPIA.

For the reasons discussed infra, we shall vacate the judgment of the Court of Special Appeals and remand with instructions. FACTUAL AND PROCEDURAL BACKGROUND Petitioner was an employee of the Office of the Montgomery County Attorney for over twenty years. During that time, she received "highly successful" reviews and top performance ratings. In 2015, Ms. Kinch downgraded Petitioner's performance rating from "highly successful" to "successful," which prevented her from receiving a 20-year, 2% performance bonus.

Prompted by the negative rating, Petitioner requested access to her personnel file on September 1, 2015, which was provided after three pages of supervisory notes were redacted. On October 8, 2015, after receiving this response, Petitioner filed a MPIA request specifying 16 categories of public records, including the missing notes. Specifically, Petitioner requested the following categories of information: 1. Any and all supervisory notes or other materials written, authored or prepared by Silvia Kinch, John Markvos and Marc Hansen; 2.

Supervisory notes removed from Ms. Lamson's supervisory file by Ms. Kinch on or about September l, 2015, including all notes removed by Ms. Kinch prior to providing Ms. Lamson a copy of her supervisory file; 3. Any and all investigatory files, inquiries, negative statements, or complaints in which Ms. Lamson is the subject and/or is discussed therein; 4. Ms. Lamson's proposed transfer from full time status to part time status; 5. Ms. Lamson's move from her 4th floor office to a 3rd floor office in the Executive Office Building ("EOB"); 6.

Ms. Lamson's transfer from the Office of the County Attorney ("OCA") Division of Human Resources to the Division of Finance and Procurement or any other OCA division; 7. Ms. Lamson's removal as counsel to the Montgomery County Fire and Rescue Service ("MCFRS"); 8. Placement of Jodi Schultz or other OCA staff attorney assigned to MCFRS matters - except workers' compensation cases; 9. Ms. Lamson's proposed change in duty assignment from MCFRS to the Animal Matters Hearing Board; 10.

Ms. Lamson's FY 2015 performance appraisal; 11. Copy of statement from William "Bill" Scott complaining about Ms. Lamson and all records discussing Mr. Scott's complaints about Ms. Lamson; 12. Any and all e-mails or documents discussing Ms. Lamson between and/or among Marc Hansen, John Markvos, Silvia Kinch, Karen Federman-Henry and Ed Lattner from February 1, 2015 to the present; 13. Any and all e-mails or documents between and/or among Marc Hansen, John Markvos, Silvia Kinch, Ed Lattner, and Assistant Chief Ed Radcliff related to Ms. Lamson's MCFRS representation and/or agency assignment, duties, and/or responsibilities; 14.

Requests, discussions and/or inquiries to conduct electronic surveillance and/or tracking on Lamson or other OCA staff members; 15. Any and all data gathered as a result of conducting electronic surveillance and/or tracking of Lamson or other OCA staff members; and 16. Communications with any other agency concerning Bernadette Lamson or any person including, but not limited to, the Board of Investment Trustees, Montgomery County Department of Corrections and Rehabilitation, Montgomery County Revenue Authority, Montgomery County Fire and Rescue Service, Montgomery County Office of Human Resources, and retirement agency. On January 27, 2016, Respondent provided several responses to the MPIA request.

Regarding request number one, Respondent asserted that: First, while an employee such as Ms. Lamson may review her own personnel file under [Gen. Prov.] § 4-311 [ 2 ] , supervisory notes are not a part of an employee's personnel file under the County's personnel regulations. MCPR § 4-8 [ 3 ] ("Supervisory notes are not considered official employee records and are not subject to review by the employee or others."). Second, supervisory notes constitute "interagency or intra-agency letters or memoranda" under [Gen.

Prov.] § 4-344 and are also shielded from disclosure by executive privilege and the Morgan doctrine. [ ] These notes contain the mental impressions and reveal the internal deliberations of the writer, Ms. Lamson's supervisor. Inquiry into the mental processes of an administrative decision maker would be contrary to the public interest and inimical to the integrity of the supervisory process. Respondent concluded by stating that the supervisory notes constitute attorney work product. Regarding the second request, Respondent reiterated the rationale advanced in request one.

Regarding the remaining requests, Respondent either provided the documentation or denied the existence of the document. Thereafter, Petitioner filed a Complaint on February 24, 2016 in the Circuit Court for Montgomery County, alleging that Respondent violated the MPIA, and requested that the court order the disclosure of all relevant documents. In response, Respondent asserted that both sets of notes were not personnel records and were privileged or confidential by law, privileged attorney-client documents, attorney work product, or not subject to disclosure because of executive privilege. Thereafter, Respondent filed a Motion to Dismiss, or alternatively, a Motion for Summary Judgment.

On May 10, 2016, Petitioner filed a Motion for a Vaughn index, 4 seeking judicial review of the requested documents. Respondent proposed instead that the court conduct an in camera review, contending that a Vaughn index was only appropriate when the documents are voluminous and suggested that an in camera review was more practical. On June 22, 2016, the trial court considered arguments and issued an oral ruling granting the Respondent's Motion to Dismiss. The court stated: I find that all of these notes kept by Ms. Kinch that have been, the way it's been argued to me and briefed to me, are not public records and that they're supervisory notes.

And they are not included in a personnel file. And they are exempted under the Montgomery County Code, which talks about supervisory notes that are excluded. And they're not governmental. I don't want to get to the slope that you guys keep talking about being slippery.

I just don't think that, I think a supervisor should be able to keep private notes under the law, and that's what we have here, and not explain to the whole world every time he or she does as to what's in them. And I use the example that if, in fact, she confides in someone, whether it be a friend or whether it be a relative or even whether it be another employee, does that have to be disclosed? In other words, if the [Petitioner] says under Freedom of Information, have you ever made any derogatory statements to any personnel members for the Montgomery County? If she had to reveal that or he at any time, that[sic], I believe, would be an abomination of this rule.

I don't believe the Legislature intended it to be that way. I think the Legislature intended that what's in your personnel file, and we all know what that means, don't put that in my personnel file or put that in my personnel file, things that are going to go with you, be used to evaluate you, and that work product or mental impressions or discussions or thought processes or even discussions among other supervisors are not intended under this act the way I see it. As a result, the trial court concluded that an in camera review was not required, because the notes were not considered personnel records pursuant to Montgomery County Personnel Regulation § 4-8 (2001). Thereafter, Petitioner noted a timely appeal to the Court of Special Appeals.

The Court of Special Appeals issued its unreported opinion on August 25, 2017. See Lamson v. Montgomery Cty. , No. 892, Sept. Term 2016, (Md. Ct. Spec. App. Aug. 25, 2017), 2017 WL 3668171 , cert. granted , 456 Md. 523 , 175 A.3d 151 (2017). The Court rephrased the questions presented by Petitioner and addressed two primary issues.

The first issue addressed arguments relating to the trial court's review of the responses to her MPIA request. The second issue related to the finding that the personnel notes fell outside the parameters of an MPIA request. The Court began by outlining the purpose of the MPIA, noting that the Act was created to grant access to sensitive information pursuant to several statutory limitations, such as where federal or state law prohibits it, or where the disclosure of information runs contrary to the public interest. See Glenn v. Maryland Dep't of Health & Mental Hygiene , 446 Md. 378 , 384, 132 A.3d 245 , 249 (2016).

Next, the Court observed that the MPIA generally allows individuals to obtain private records about themselves, including personnel records and that such records should be provided, in the absence an adequate justification. Turning to the merits of the appeal, the Court of Special Appeals determined that Respondent sufficiently responded to requests three through sixteen, and that Petitioner did not allege sufficient facts to support challenges to those responses. Regarding requests one and two, the Court found that the "supervisory notes do not fit within the definition of excludable 'supervisory notes' under the Montgomery County Personnel Regulations, and that the trial court abused its discretion by failing to review them in camera to determine whether non-disclosure was justified on other grounds." Lamson , 2017 WL 3668171 , at ⁵. In reaching this conclusion, the Court noted that the MPIA preempts any county regulation imposed under Montgomery County Personnel Regulations and determined that county regulations could not preclude disclosure of Petitioner's personnel records.

As such, county regulations could not be used to justify the denial of an MPIA request. Regarding the notes contained in Ms. Kinch's private journal, the Court determined that they were not subject to disclosure because they were made by Ms. Kinch in an unofficial capacity and kept outside of Petitioner's personnel folder. As such, the Court determined that they were not public in nature and thus, not subject to disclosure. Following this decision, Petitioner filed for certiorari, which we granted. 456 Md. 523 , 175 A.3d 151 (2017).

STANDARD OF REVIEW "Judicial review of an agency's decision on MPIA requests is authorized by Gen. Prov. § 4-362, which permits a person who is denied inspection of a public record to challenge the denial by filing a complaint in the circuit court." Action Comm. for Transit, Inc. v. Town of Chevy Chase , 229 Md. App. 540 , 558, 145 A.3d 640 , 650 (2016). "The standard of review for a trial court's decision on a government's response to an MPIA request is 'whether that court had an adequate factual basis for the decision it rendered and whether the decision the court reached was clearly erroneous.' " Id. We have defined the clearly erroneous standard by stating, "[i]f any competent material evidence exists in support of the trial court's factual findings, those findings cannot be held to be clearly erroneous." Webb v. Nowak , 433 Md. 666 , 678, 72 A.3d 587 , 594 (2013).

However, "[t]o the extent the [c]ircuit [c]ourt's exercise of discretion is based on an interpretation of law, that aspect of the ruling below is reviewed de novo ...." Lamone v. Schlakman , 451 Md. 468 , 479, 153 A.3d 144 , 151 (2017). Moreover, the Circuit Court for Montgomery County granted Respondent's Motion to Dismiss. "We review the grant of a [M]otion to [D]ismiss de novo ." Reichs Ford Rd. Joint Venture v. State Roads Commission of the State Highway Administration , 388 Md. 500 , 509, 880 A.2d 307 , 312 (2005).

In determining whether the decision of a lower court was legally correct, we give no deference to the trial court findings and review the decision under a de novo standard of review. See Walter v. Gunter , 367 Md. 386 , 392, 788 A.2d 609 , 612 (2002). See also Breslin v. Powell , 421 Md. 266 , 277, 26 A.3d 878 , 885 (2011). As a result, we shall review the merits of this matter de novo to determine whether the MPIA was properly interpreted and the grant of the motion to dismiss was legally correct.

DISCUSSION The Purpose of the MPIA The MPIA creates an affirmative right for all persons granting "access to information about the affairs of government and the official acts of public officials and employees." Gen. Prov. § 4-103. See also Glass v. Anne Arundel Cty., 453 Md. 201 , 207-08, 160 A.3d 658 , 661-62 (2017). We have explained this right, stating that the MPIA "was created to 'provide the public the right to inspect the records of the State government or of a political subdivision within the State.' " Glenn , 446 Md. at 384 , 132 A.3d at 249 .

Additionally, we noted that public policy creates "a general presumption in favor of disclosure of government or public documents." Id. at 385 , 132 A.3d at 249 . See also Maryland Dep't of State Police v. Maryland State Conference of NAACP Branches , 430 Md. 179 , 190, 59 A.3d 1037 , 1043 (2013). However, in Glass , we outlined the numerous exceptions to disclosure contained in the MPIA and classified them into four categories. The first category prevents the disclosure of documents controlled by other laws.

Glass , 453 Md. at 209 , 160 A.3d at 662 . Where a law controls disclosure of a particular document, Gen. Prov. § 4-301 prevents disclosure of the document. Id.

The second category identifies documents or information that an agency may not disclose, also known as "mandatory exceptions." Id. The mandatory exceptions prevent the disclosure of documents or information and require the custodian of records to deny a request for those records or information outright. Moreover, "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." Id. at 209 , 160 A.3d at 662 -63 . See also Gen.

Prov. § 4-328 et seq. The third category of exceptions consists of "discretionary exceptions." Id. This category describes the exceptions in the MPIA that require a custodian of record to decide whether disclosure of the record or information would be contrary to the public interest. The discretionary exceptions "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.

Id. at 210 , 160 A.3d at 663 . Finally, the MPIA permits an agency to refuse disclosure subject to several enumerated limits. This "catch-all exception" permits the temporary denial of inspection of records not otherwise exempt from disclosure, if the custodian believes that inspection would cause substantial injury to the public interest and the agency obtains a court order within 10 days. Id.

One of the mandatory exceptions is set forth in Gen. Prov. § 4-311 and controls the disclosure of personnel records and requires that the custodian of personnel records "deny inspection of a personnel record of an individual, including an application, a performance rating, or scholastic achievement information." The provision also contains a requirement that the custodian permit inspection of the record when requested by the "person of interest" or a supervisor of the person in interest. Id. A "person of interest" is defined as "a person or governmental unit that is the subject of a public record or a designee of the person or governmental unit[.]" Gen.

Prov. § 4-101(g). A "person of interest" may have a broader right of access to a record than other persons that may pursue the right to inspect a record. This provision is in contrast to the provisions governing general records subject to disclosure and explicitly mandates that the records be kept private, unless requested by the person in interest or a supervisor of such a person. To be clear, while personnel records are a sub-category of "public records," they are largely exempt from disclosure.

See Gen. Prov. § 4-304 (stating, "a custodian shall deny inspection of a public record, as provided in this part"). As such, where there is an assertion that the records at issue may constitute personnel records there must be an inquiry into the nature of the records to determine which rules govern their disclosure. To pursue that examination we must first define both types of records.

The MPIA broadly defines a "public record" as any document that "is made by a unit or an instrumentality of the State or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business[.]" Gen. Prov. § 4-101(j)(1)(i). It includes any copy of a public record, including written documents, photographs, and drawings in both printed and electronically stored formats. This definition is in line with the purpose of the MPIA generally.

Because the MPIA is designed to grant access to documents regarding the affairs of government and the official acts of public officials, it follows that the definition of a public record should be broad enough to cover a wide range of document types. One type of public record is a personnel record. These records, which are not explicitly defined by the MPIA, have been addressed by the Court in Kirwan v.