Maryland Department of State Police v. Maryland State Conference of NAACP Branches

KEHOE, Judge, concurring. While I agree with much in the well-reasoned and persuasive Majority opinion, I would affirm the judgment of the ³⁸⁷ circuit court for different reasons. I write separately to provide a brief explanation. 1 At issue in this case are the records of the MSP documenting its investigations of 94 complaints, filed between 2003 and 2007, alleging that MSP officers utilized racial profiling in making traffic stops. The MSP concluded that the charges of racial profiling could be sustained in none of them.

As the Majority opinion explains, the NAACP seeks to inspect these records as part of its efforts to determine whether the MSP is complying with its commitments to adopt and implement policies and procedures to end racial profiling. Prior to its ruling, the circuit court made an in camera inspection of each file, totaling, in the words of the court, “7- or 8,000 pages.” In rendering its ruling from the bench, the circuit court identified personnel records as “[-1 documents that directly pertain to employment and an employee’s ability to perform a job/’1 right out of a case.” 2 The court stated: [Tjhese files that I have looked through only exist because they represent the complaints of a citizen personally directed at a state trooper of misconduct, of being intimidated by racial bias as opposed to legitimate reasons for stopping our motorists. So as a generic idea, I believe that overall, therefore, these are the kinds of files that are personnel in nature and represent a thrust against an individual trooper. ³⁸⁸ I. I respectfully part company with the Majority at two points in its analysis. I believe that the troopers who were the subject of the complaints have privacy interests in the records in question and I further believe that the files themselves should be considered as “personnel records” under the Act.

The Majority states that, since the complaints involve events occurring while the troopers were on duty and engaged in public service, the officers who were the subject of the complaints did not have a reasonable expectation of privacy as to such records. With all respect to the Majority, I do not believe this proposition is consistent with the analysis employed by the Court of Appeals in Robinson v. State, 354 Md. 287, 308 , 730 A.2d 181 (1999), and this Court in Baltimore City Police Dept. v. State, 158 Md.App. 274, 282-83 , 857 A.2d 148 (2004). Both decisions recognize that police officers who are the subject of internal disciplinary investigations have privacy interests in the investigative records. Robinson involved a prosecution for armed robbery.

During the trial, Robinson sought access to statements made by the arresting officers as a result of an internal affairs division (“LAD”) investigation of the circumstances surrounding his arrest on the basis of the Jencks/Carr 3 rule. 354 Md. at 298 , 730 A.2d 181 . One of the arguments raised by the State on appeal was that the prior statements made by the arresting officers were confidential under the LEOBR and thus, were not “available” to the police for disclosure to the defendant. Id. at 304 , 730 A.2d 181 . In assessing this contention, the Court of Appeals concluded that what was then § 728(5)(b)(iii) and (iv) of the LEOBR (now codified as Md.Code Ann. Pub. ³⁸⁹ Safety § 3-104(n)), “limits access to the internal investigation file to the affected officer, and then only to exculpatory information, and does not expressly provide for access by anyone else....

These provisions deal only with the rights of the officer and serve as a protection for them.” 354 Md. at 308 , 730 A.2d 181 . The Court went on to hold that an officer’s right in the confidentiality of IAD records was not absolute and “must be balanced ... against the confrontation and due process rights of the defendant.” Id. at 309 , 730 A.2d 181 . In Baltimore Police, a defendant in a criminal case subpoenaed the file of an IAD investigation of a police officer who was a witness against him. 158 Md.App. at 280 , 857 A.2d 148 . The trial court denied the police department’s motion to quash the subpoena and the department appealed.

Id. This Court stated “[t]he Department asserts that IAD’s file concerning its investigation into allegations of dishonesty on the part of [the police officer] qualifies as a personnel record [under the Act], and appellee does not contend otherwise. Guided by Kirwan, we see no reason to disagree... . ” 158 Md.App. at 282-83 , 857 A.2d 148 . Later in the opinion, this Court stated that “the IAD records at issue ... are made confidential by SG § 10-616.” Id. at 287 n. 7, 857 A.2d 148 .

Citing Robinson , we concluded that the police officer’s privacy interest was not absolute but must be weighed against the countervailing interests in favor of disclosure. Id. at 286, 857 A.2d 148 . I also must part company with the Majority’s conclusion that the records in question should be treated as “records of investigations conducted by ... a police department,” under § 10—618(f), instead of personnel records pursuant to § 10-616®. While the term “personnel record” is not defined in the Act, the Court of Appeals has explained that the term embraces records that relate to the “discipline, promotion, dismissal, status, job performance or achievement” of an employee.

Governor v. Washington Post, 360 Md. 520, 548 , 759 A.2d 249 (2000); see also Kirwan, 352 Md. at 83, 721 A.2d 196 (“ ‘[Personnel records’ mean those documents that directly pertain to ³⁹⁰ employment and an employee’s ability to perform a job.”) After its in camera inspection of the records, the circuit court characterized them as “complaints of a citizen personally directed at a state trooper of misconduct, of being intimidated by racial bias.” Whether a state trooper uses race as a factor in determining whether to initiate a traffic stop bears ineluctably upon that officer’s job performance. If the MSP were to conclude that a trooper was guilty of racial profiling, discipline would surely follow. Certainly, the records were generated by investigations by the MSP. This fact should not render the files subject to disclosure under § 10—618(f).

The Court of Appeals considered a similar question in Attorney General v. Gallagher, 359 Md. 341, 348 , 753 A.2d 1036 (2000), and held that specific exemptions under the Act were applicable to a request under the Act to inspect an investigative file: “[njothing in the language or history of the Public Information Act supports the view that, when records are contained within an investigatory file, § 10—618(f)(2) displaces all other exemptions in the statute.” Id. 4 II. Because I conclude that the records in question are “personnel records,” I will address the principal contention advanced by the MSP to this Court, namely, that there is nothing in the Act to permit redaction or partial disclosure of a personnel record. The MSP’s position is unpersuasive. The provision in question is § 10—614(b)(3)(iii) which requires a custodian who denies inspection of a record “to ³⁹¹ permit inspection of any part of the record that is subject to inspection and is reasonably severable.” The MSP’s position that § 10—614(b)(3)(iii) does not apply to personnel records is not consistent with the legislative history of the Act.

The Act was enacted in 1970 and was codified as Article 76A of the Code. Faulk v. State’s Attorney for Harford Co., 299 Md. 493, 506 , 474 A.2d 880 (1984). At that time, the statutory predecessors to the current § 30—614(b) (Grant or denial by custodian), § 10-615 (Required denials-In General), § 10-616 (Required denials-Specific records), § 10-617 (Required denials-Specific information), and § 10-618 (Permissible denials), were all contained in Article 76A § 3. Section 3 did not contain a provision requiring a custodian to sever disclosable from non-disclosable records.

In 1976, significant amendments were proposed to the Act. The proposed amendments included revising § 3(d) to read in pertinent part as follows: (d) Whenever the custodian denies a written request for access to any public record or any portion thereof under this section, [the custodian shall provide a written statement of the grounds for the denial].... In addition, any reasonably severable portion of a record shall be provided to any person requesting such a record after deletion of those portions which may be withheld from disclosure. With regard to the proposed amendment to § 3(d), the House Constitutional and Administrative Law Committee reported: [T]he section permitting the withholding of public information has been modified throughout so that if only a portion of the record should be denied and the record is severable the remainder must be