Mayor of Baltimore v. Burke

KARWACKI, Judge. At the conclusion of oral argument on this appeal on February 19, 1986, we directed the immediate issuance of this Court’s mandate affirming the order of the Circuit Court for Baltimore City (Byrnes, J.). We now explain our reasons for that decision. The controversy stems from the refusal by the Mayor and City Council of Baltimore (the City) and Francis W. Kuchta, the Director of its Department of Public Works, the appellants, to release certain documents for inspection by Rich ¹⁴⁹ ard C. Burke, the appellee.

Burke is a reporter for The News American, a Baltimore daily newspaper. The appellee, pursuant to the Maryland Public Information Act, Md. Code (1984), § 10-611 et seq. of the State Government Article (the MPIA), on April 8 and April 23, 1985, made written requests for permission to inspect and copy documents related to the design and construction of improvements to the Patapsco Waste Water Treatment Plant. 1 The Associate City Solicitor on behalf of the appellants responded on May 10 and May 14, 1985. After stating that some of the requested documents had already been released to the appellee and that some could not be found and were presumed destroyed, he reported that the remainder of the requested documents numbered approximately 160,000 pages, and that these documents would be released providing the appellee paid approximately $50,000 to cover copying at 25 cents per page and the cost of the “City employee’s time based upon their [sic] salary to retrieve the documents and the portion of an Assistant City Solicitor’s time to review each document to delete material which is not subject to disclosure.” Finally, he denied the appellee access to “[r]eports, agreements, and contracts between the municipal government and the Alpha Corporation” 2 stating that those documents were: ¹⁵⁰ [i]n the nature of interagency or intra-agency letters or memoranda that would not be routinely available in litigation. Also, they involve research and an investigation by city attorneys, whose disclosure would be contrary to the public interest.

Therefore, the documents are not subject to disclosure pursuant to Section 10-618(a), (b), (d), and (f), State Government Article of the Annotated Code of Maryland. The appellants initiated litigation on May 20, 1985 in the Circuit Court for Baltimore City for permission to continue their refusal to disclose the requested documents. The appellee answered and counterclaimed requesting, inter alia, the disclosure of all requested documents and a waiver of all fees associated with the disclosure. The appellee also filed motions for expedited review, for summary judgment, and to compel the appellants to prepare a “Vaughn” 3 index.

A motions hearing was scheduled for July 28, 1985, one day prior to the deadline for the appellants’ response to the appellee’s motions. Nevertheless, the appellants’ counsel appeared and argued the pending motions with the understanding that the court would review the appellants’ answers to the motions before ruling. Two days after the hearing, the appellants filed their response to the appellee’s motions. On August 12, 1985, the hearing judge filed his opinion and order granting summary judgment in favor of the appellee.

The order provided: 1. Burke’s Motion for Summary Judgment is GRANTED and the Mayor and City Council of Baltimore is hereby enjoined from withholding all documents ¹⁵¹ which are the subject of defendant’s request pursuant to the Maryland Access to Public Records Act. 2. It is further ORDERED that all reasonable costs connected with the retrieval, inspection and copying of the documents be waived. The City is hereby given leave to object to a waiver of the total costs attributable to defendant’s request to the extent that the costs may be unreasonable, or if the number of pages requested for reproduction exceeds 500. 3.

It is further ORDERED that Mr. Burke be permitted to participate in the inspection process to the extent that his participation will minimize the costs associated with his request, and will not unduly further burden the City’s effort to comply with this decision. 4. It is further ORDERED, that the City may present to the Court, in camera, before submission to defendant, particular documents that it believes should be exempted from this decision and the reasons for such claimed exemption. The court, on November 25, 1985, stayed enforcement of its order pending resolution of this appeal. The appellants present three questions for our determination: I. Did the lower court err in ordering the immediate disclosure of the City’s documents related to the pending arbitration proceeding?

II

Did the lower court err in ordering a waiver of reasonable fees for retrieval, inspection and copying of documents?

III

Did the lower court err in proceeding, without proper notice, with a hearing on the merits prior to the time for filing the appellants’ responsive pleadings and in granting summary judgment despite the existence of factual disputes? I. Preliminarily, we stress that the appellants did not resist disclosure of the public records in question pursuant to any ¹⁵² of the specifically recognized exemptions from inspection provided for in §§ 10-615 through 10-618 of the MPIA. Rather, they invoked the jurisdiction of the court to permit them to continue their denial of inspection and copying of certain of the requested documents pursuant to § 10-619. That provision of the MPIA states: (a) Permitted.—Whenever this Part III of this subtitle authorizes inspection of a public record but the official custodian believes that inspection would cause substantial injury to the public interest, the official custodian may deny inspection temporarily.

(b) Petition.—(1) Within 10 working days after the denial, the official custodian shall petition a court to order permitting the continued denial of inspection. (2) The petition shall be filed with the circuit court for the county where: (i) the public record is located; or (ii) the principal place of business of the official custodian is located. (3) The petition shall be served on the applicant, as provided in the Maryland Rules. (c) Rights of applicant.—The applicant is entitled to appear and to be heard on the petition.

(d) Hearing.—If, after the hearing, the court finds that inspection of the public record would cause substantial injury to the public interest, the court may pass an appropriate order permitting the continued denial of inspection. Patently, by proceeding under this section the appellants conceded that the records in question were subject to inspection and merely sought a temporary respite from the disclosure requirements of the. MPIA. The Court of Appeals in Cranford v. Montgomery County, 300 Md. 759, 776 , 481 A.2d 221 (1984), recognized this limited purpose of § 10-619.

It there commented: In the unusual case where a public policy factor should control but none of the specific exemptions applies, the ¹⁵³ Md. Act provides for a special procedure to safeguard the material from disclosure. Under § 3(e) 4 a custodian may apply to a court for an order permitting him to deny disclosure in order to prevent substantial injury to the public interest. Justifying their continued denial of inspection of public records which they conceded were subject to the disclosure requirements of the MPIA, the appellants asserted that such disclosure would do substantial injury to the public interest because it would result in the loss of a strategic advantage in the City’s defense of the Bateson claims which are presently in arbitration. They argued that such a public disclosure would jeopardize the City’s position in the pending Bateson arbitration and in possible subsequent legal proceedings growing out of the Bateson claims.

Since the hearing judge rejected this attempted justification for the non-disclosure by summary judgment, we will assume the accuracy of the appellants’ assertions in reviewing his action. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62 , 485 A.2d 663 (1984); Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-18 , 382 A.2d 555 (1978). The intent of the MPIA in favor of disclosure of public records is unmistakable.

Cranford v. Montgomery County, supra, 300 Md. at 771 , 481 A.2d 221 ; Faulk v. State’s Attorney for Harford Co., 299 Md. 493, 506 , 474 A.2d 880 (1984); Moberly v. Herboldsheimer, 276 Md. 211, 227-28 , 345 A.2d 855 (1975). Section 10-612(a) mandates 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.” Section 10-612(b) directs that the MPIA “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.” Having clearly expressed this bias in favor of disclosure, ¹⁵⁴ the General Assembly has within §§ 10-615, 10-616, and 10-617 directed the custodian of specific kinds of public records to deny inspection of them. Furthermore, in § 10-618 the Legislature has permitted denial of inspection of other specific types of public records where the custodian believes that such inspection “would be contrary to the public interest.” Even where a public record is subject to inspection under §§ 10-615 through 10-618, § 10-619 authorizes a court, after conducting a hearing, to permit the continued denial of inspection where “the court finds that inspection of the public record would cause substantial injury to the public interest.” In Moberly v. Herboldsheimer, supra, a newspaper columnist sought the disclosure of records of a hospital, operated as an agency of the City of Cumberland, relating to the salary of the hospital’s superintendent and the amount paid by the hospital for legal