Maryland Committee Against the Gun Ban v. Mayor of Baltimore

WILNER, Chief Judge. One of the more controversial pieces of legislation introduced into the 1988 session of the General Assembly was an Administration Bill (HB 1131) designed to stanch the flow of cheap, low quality, easily concealable handguns on to the streets. It created a Handgun Roster Review Board to develop a roster of guns that fit certain criteria set out in the bill and then prohibited distribution in Maryland of any gun on that roster. When the bill passed (1988 Md. Laws, ch. 533), appellant, as a political committee, spearheaded an effort to refer the measure to the voters (Md. Const., art.

XYI) and, after succeeding in that effort, to encourage its defeat. The measure was on the ballot, as Question 3, in the general election of November 8, 1988. It attracted a great deal of publicity and attention. On the evening of November 7, a number of Baltimore City police officers came to appellant’s campaign headquarters at 2506 N. Calvert Street in order to serve a subpoena that had been issued that day by the State’s Attorney for Baltimore City.

Although the subpoena itself is not in the record, it appears that the State’s Attorney was looking for evidence that might show whether appellant was violating the State election laws by paying “walking around” money. According to one Ed Rothstein, who was present at the time, three officers appeared and asked that everyone in the three-story building assemble on the first floor. No one was permitted to leave the building. One of the officers, whom Mr. Rothstein identified as Detective ²⁵⁴ Gundy, was particularly abusive, shouting orders and using a great deal of profanity.

Stephen Miller and Francine Cornish, who worked for appellant, arrived after the employees — about 40 of them— had been herded on to the first floor. Some of them complained about being prevented from going to the bathroom. Sgt. France identified himself, produced the subpoena, and asked for the documents.

When Mr. Miller denied that the documents he sought existed, the police began entering the various offices, going through desks and files, and, according to Miller and Cornish, placing records and documents, indiscriminately, into boxes. Miller confirmed Mr. Rothstein’s report of threats, abusive language, and profanity on the part of Detective Gundy as well as being pushed by him. Mr. Miller did succeed in persuading Sgt. France to allow people to go to the bathroom and, provided they took no documents with them, to leave the building.

Appellant’s chairman, Fred Griisser, arrived from Laurel between 8:00 and 8:30 and was informed by his staff that the officers were “tearing the place apart” and “pulling files out.” In subsequent testimony, he stated that the phone banks, through which staff people were calling voters to urge them to vote the next day, “were shut down completely” because “when the police came they shut the whole operation down.” Shortly after his arrival, Mr. Griisser spoke with Sgt. France, who seemed to be in charge. Sgt. France informed Mr. Griisser that the items he was looking for did not seem to be on the premises and that the police would be leaving, as indeed they did.

It is not clear whether they took any of appellant’s records with them or, if so, what they took. Within a few weeks after this incursion, the Internal Investigation Division of the Baltimore City Police Department (IID) commenced an investigation of the event, apparently upon complaints filed by Mr. Griisser and one or more other persons. In the course of it, detectives interviewed and took recorded statements from a number of people, including Messrs. Griisser, Rothstein, and Miller and Ms. ²⁵⁵ Cornish.

We are informed that the investigation was completed in the spring of 1989 and that no action was taken as a result of it. Insofar as the Police Department is concerned, the matter was closed at that time. On May 31, 1990, appellant filed a request under the State Freedom of Information Act (Md.Code State Gov’t art., §§ 10-611-10-628) to inspect and obtain copies of the report prepared by IID as well as “any notes taken by [the two officers who conducted the investigation] while gathering information for the report, any written or recorded statements taken from the officers involved or any witnesses, and any reports prepared by the officers involved concerning their entry into our headquarters on November 7, 1988.” Through Major Kenneth Blackwell, director of IID, the department denied the request on the grounds that the records sought (1) constituted “inter-agency, intra-agency documents” containing “pre-decisional records, created solely for use by this agency,” and thus were non-disclosable under State Gov’t art., § 10-618(b), (2) constituted “records of an investigation compiled for a law enforcement purpose,” and were thus non-disclosable under § 10-618(f), and (3) contained “personal records,” and were non-disclosable under §§ 10-624 and 10-626. Faced with this denial, appellant filed a complaint in the Circuit Court for Anne Arundel County seeking an order requiring the department to produce the requested documents.

See § 10-623. After an evidentiary trial, consisting principally of the testimony of Major Blackwell and Mr. Griisser and the recorded statements given to IID by Griisser, Rothstein, Miller and Cornish, which had eventually been released to them by IID, the court entered an order on April 30, 1991, declaring that the department was not required to release the requested documents. This appeal ensued. Statutory Framework and Conclusions of the Circuit Court The General Assembly has stated rather clearly its purpose in enacting the Freedom of Information Act.

In § 10- ²⁵⁶ 612 of the State Government article, it declared 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” and that, “unless an unwarranted invasion of the privacy of a person in interest would result,” the Act “shall be construed in favor of permitting inspection of a public record, with the least cost and least delay to the person ... that requests the inspection.” Section 10-613 adds the command that, “[e]xcept as otherwise provided by law, a custodian shall permit a person ... to inspect any public record at any reasonable time.” The phrase “except as otherwise provided by law” implicates §§ 10-615 through 10-619, which set forth lists of circumstances under which access may be denied or restricted, and § 10-626, which prohibits the unlawful disclosure of personal records. We are concerned here only with § 10-618, and, in particular, subsections (a), (b), and (f) thereof. No claim has been made by the department in this appeal that the records sought by appellant may be shielded under any other section; nor did the court below find any other safe harbor for them. 1 Section 10-618(a) states that, “[u]nless otherwise provided by law, if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest,” he may deny inspection “as provided in this section.” Subsection (b) permits a custodian to deny inspection “of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit.” Section 10-618(f)(l) provides, in relevant part, that, “[s]ubject to paragraph (2) of this subsection,” a custodian may deny inspection of records of investigations conducted by a police department. Paragraph (2) states, however, ²⁵⁷ that a custodian may deny inspection “by a person in interest” only to the extent that the inspection would: “(i) interfere with a valid and proper law enforcement proceeding; (ii) deprive another person of a right to a fair trial or an impartial adjudication; (iii) constitute an unwarranted invasion of personal privacy; (iv) disclose the identity of a confidential source; (v) disclose an investigative technique or procedure; (vi) prejudice an investigation; or (vii) endanger the life or physical safety of an individual.” As noted, appellant’s request for inspection specified not only the IID report itself but also various categories of supporting documents.

A comparable request was made in the complaint filed in the Circuit Court. At the commencement of the hearing, however, the department asserted that the documents in question were all part of one investigatory file, and so the court and the parties thereafter spoke in terms of one document, meaning the IID file or report. Major Blackwell testified that, when a complaint is made against a departmental officer or employee, a detective from IID contacts the complaining party and gathers “other pertinent documentation that might lend itself to rounding out the investigation. That might include reports generated by the particular accused member, as well as particular logs indicating what officers were on the scene and, so on and so forth.” When all of the information is put together, the investigator records his opinion as to “what finding we might render in this particular case.” The report — the factual material and the detective’s opinion — is then passed up a chain of command, from the detective to a sergeant, then to a lieutenant, then to an administrative review sergeant, then to Major Blackwell, and finally to a deputy commissioner.

As Blackwell described the process, “[e]ach of those individuals [is] reviewing the report to make certain that all the things that should have been done were ²⁵⁸ done. If not, they offer certain opinions or suggestions as to what ought to be done to make this a full and impartial investigation.” The report is prepared in duplicate. The first major part of it is a summary of the investigation. This consists of a “synopsis of the investigative steps setting forth facts and testimony of complainant, accused and all pertinent witnesses directly related to the complaint____” Following this, but still as part of the summary, is “a conclusion comprised of a weighted evaluation of the evidence on both sides and the finding of the case.” The next major part deals with the complainant and includes a “detailed account of the complaint, usually a narrative exposition, followed by interrogatories.” There follow “[s]tatements of witnesses which generally support the complainant” and “[o]ther pertinent documents bearing upon the allegation, e.g., neighborhood canvasses.” Next comes all reporting by the accused officer not found elsewhere, “[s]tatements of witnesses generally in support of the accused,” and “[o]ther pertinent documents bearing upon these witnesses.” Finally, in terms of factual material, the report must contain statements or reports from witnessing police officers or employees, communications transcripts, and “[a]ny other reporting associated with the case not found elsewhere____” After conducting an in camera inspection of the report, the court drew two principal conclusions.

First, it declared that the report was an intra-agency document because it never left IID, adding then that: “Additionally, the document would not be available by law to a private party in litigation with the unit. Throughout the document the investigator’s and reviewer’s opinions and conclusions are interspersed with the factual details. Thus, the document constitutes work-product from the standpoint of [IID] and is not discoverable.” The court did not elucidate on just how or to what extent the investigator’s or reviewer’s opinions were interspersed with factual details. Having concluded that it fell within ²⁵⁹ the “intra-agency exception” (§ 10-618(b)), the court considered whether its disclosure to appellant would be contrary to the public interest (§ 10-618(a)).

It found: “The purpose of the investigation was to determine if officers of the Baltimore City Police Department acted improperly, with regard to departmental standards, on the evening of November 7, 1988, while they were on the premises of Plaintiff. In order to conduct such an investigation, confidentiality of any person who cooperates with the investigation must be assured. If confidentiality were not maintained, witnesses or other persons with information would be hesitant to cooperate because of a fear of retribution or possible wrongdoing by the officer being investigated. If all [IID] investigations were released to the public, it would be extremely difficult to discipline or remove officers who were acting improperly.

Clearly it is in the public interest to discipline police officers who act contrary to departmental regulations. Therefore, the court finds that the disclosure of the documents would be contrary to public interest.” As an additional, alternative basis for affirming the department’s position, the court found that the report fell within the “investigation exception” of § 10-618(f). After declaring that it was the record of an investigation by the police department and, with the conditions stated in subsection (f)(2) apparently in mind, the court stated: “Additionally, inspection of the document may disclose the identity of a confidential source. More importantly, the release of the document would constitute an unwarranted invasion of personal privacy with respect to the officers who were investigated (and subsequently exonerated).” We shall deal with these two principal conclusions separately.

Intra-Agency Memorandum The Court of Appeals discussed the interagency and intraagency exemptions, as set forth in the Maryland Act, in ²⁶⁰ Cranford, v. Montgomery County, 300 Md.