Mayor of Baltimore v. Maryland Committee Against Gun Ban

RODOWSKY, Judge. In this case inspection of public records is sought under the Maryland Public Information Act (the Act), Maryland Code (1984, 1992 Cum.Supp.), §§ 10-611 through 10-628 of the State Government Article. 1 The records were generated in the course of an investigation, conducted by the Internal Investigation Division (IID) of the police department in Baltimore City, that resulted from one or more civilian complaints about the conduct of police officers during the service of a subpoena duces tecum. Following the police department’s refusal to disclose, a circuit court held that the records, as intra-agency memoranda and as records of an investigation by a police department, were exempt from disclosure. The Court of Special Appeals concluded that neither exemption applied.

Maryland Comm. Against the Gun Ban v. Mayor & City Council of Baltimore, 91 Md.App. 251 , 603 A.2d 1364 (1992). We granted cross-petitions for certiorari, and, as explained below, we shall hold that disclosure was permissibly denied under provisions of the Act relating to records of investigations conducted by a police department. I The Act declares that “[a]ll persons are entitled to have access to information about the affairs of government and ⁸¹ the official acts of public officials and employees.” § 10-612(a). “To carry out the [foregoing right], unless an unwarranted invasion of the privacy of a person in interest would result, [the Act is to] be construed in favor of permitting inspection of a public record.” § 10-612(b).

A “ ‘[p]ublic record’ means ... any documentary material” that is made or received “by a unit or instrumentality of the State government or of a political subdivision ... in connection with the transaction of public business.” § 10-611(f)(1)(i); see Maryland Attorney General, Public Information Act Manual 4 (1987). The IID records at issue in this matter are public records as defined in the Act. At issue is whether those records fall within any exclusion from the general rule of disclosure. Section 10-616 requires custodians to deny inspection of specific types of public records.

Those include records relating to adoption, welfare, retirement, hospital, student, and personnel records. Section 10-617 requires custodians to deny inspection of a part of a public record that contains specified information, including certain medical, psychological, sociological, commercial and financial information. Section 10-618 permits custodians to deny inspection to a third category of records. The petitions for certiorari in this case present questions concerning two types of records in this third category, namely, intra-agency memoranda (§ 10-618(b)) and records of police department investigations (§ 10-618(f)).

There is no need in this case to focus on subsection (b), however, because the provisions relating to records of police department investigations are dispositive. Section 10-618(a) and (f) provide: “(a) In general.—Unless 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, the custodian may deny inspection by the applicant of that part, as provided in this section. (f) Investigations.—(1) Subject to paragraph (2) of this subsection, a custodian may deny inspection of: ⁸² (1) records of investigations conducted by the Attorney General, a State’s Attorney, a city or county attorney, a police department, or a sheriff; (ii) an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or (iii) records that contain intelligence information or security procedures of the Attorney General, a State’s Attorney, a city or county attorney, a police department, a local correctional facility, or a sheriff. (2) 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.” Section 10-618(f)(2) permits denial of inspection “by a person in interest,” but “only to the extent that the inspection would” produce one of the seven results enumerated in paragraph (f)(2).

Under the Act, “[p]erson in interest” is a definitional term that means, in the context presented here, “a person ... that is the subject of a public record or a designee of the person.” § 10-611(e)(l). If the person seeking to inspect the record of a police department investigation is not “a person in interest,” then the rule of § 10-618(f)(1) applies. Under (f)(1), the custodian may deny inspection. But (f)(1) must be read in conjunction with the general condition to § 10-618—“if [the] custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest.” § 10-618(a); see ⁸³ Cranford v. Montgomery County, 300 Md. 759, 771-72 , 481 A.2d 221, 227 (1984).

Thus, if the person seeking inspection of the records of a police department investigation is not a person in interest, and if the custodian believes that disclosure of the records of the police investigation is not in the public interest, the Act does not require disclosure. 2 II The sole plaintiff in the action before us is Maryland Committee Against the Gun Ban (the Committee). It is a “political committee” under the Election Code, meaning “any combination of two or more persons appointed by a candidate or any other person or formed in any other manner which assists or attempts to assist in any manner the promotion of the success or defeat of any candidate, candidates, political party, principle or proposition submitted to a vote at any election.” Md. Code (1957, 1990 Repl. Vol., 1992 Cum.Supp.), Art. 33, § l-l(a)(14). Every political committee must appoint and constantly maintain a chairperson and a treasurer.

Id. § 26-4(a). The treasurer of a political committee has obligations imposed by the Fair Election Practices Act relating to recordkeeping and reporting of receipts and disbursements of the political committee. Id. subtitle 26. Chapter 533 of the Acts of 1988 prohibited distribution in Maryland of guns that were determined, by a newly created agency, to meet certain criteria.

Chapter 533 had been petitioned to referendum at the general election of November 1988. At the time relevant to this case, the Committee was seeking the defeat of Chapter 533 on referendum. ⁸⁴ The Baltimore City political headquarters of the Committee was in the offices of Vanguard Communications Company at 2506 North Calvert Street. On the evening before the general election, officers of the Baltimore City Police Department came to that address to serve a subpoena duces tecum for Committee records. The evidence does not reveal precisely what the alleged misconduct of any police officer might have been. 3 The Director of the IID, Major Kenneth L. Blackwell (Blackwell), testified that accusations were made against two members of the Baltimore City Police Department that “encompassed excessive force, discourtesy and ... misconduct” at the Committee’s headquarters on election eve.

These accusations precipitated an IID investigation, the records of which are the subject of the request under the Act that is now before us. IID investigations are conducted pursuant to General Order 48-77 of 1 July 1977, issued by the Baltimore City Police Commissioner. That order recites that the policy of the agency is “to accept and investigate complaints against its members of alleged misconduct and based upon its findings to exonerate the innocent, establish the guilt of wrongdoers and justly determine disciplinary action with promptness.” IID investigations are considered confidential by the Department. Paragraph VII of the order explains: “Mistaken or even deliberately false reports and accusations are made against members of the department.

In some instances, the most conscientious and hardworking members will be the subject of such reports. Accordingly, in order to insure the integrity of the police department it is necessary to investigate completely and thoroughly all reports and accusations from all sources. This must be done. At the same time, the reputations and good names of innocent members must be protected. ⁸⁵ This is important in the interest of fairness, and thus, to the effectiveness of police operations.

In view of the aforementioned, investigations are considered confidential and therein so handled.” In the Baltimore City Police Department, an IID investigation report consists of descriptions of all steps in the investigation, all statements taken, a summary and conclusion, and comments by persons in the chain of command. The investigation is subjected to a series of reviews to determine that the investigation is complete and to obtain recommendations as to disposition. Investigations of law enforcement officers are subject to the Law Enforcement Officers’ Bill of Rights (LEOBR), Md. Code (1957, 1992 Repl. Vol.), Art. 27, §§ 727 through 734D.

Under General Order 48-77, annex A, ¶ III.H, the investigator, upon completion of the investigation, classifies the complaint as “sustained,” “not sustained,” “exonerated,” or “unfounded.” These classifications respectively mean that the allegation is supported by sufficient evidence, that there is insufficient evidence either to prove or disprove the allegation, that the incident complained about occurred but was lawful and proper, and that the allegation is false or not factual. In the instant matter it appears that the highest command level at which the investigation report was reviewed was that of the Deputy Commissioner of the Administrative Bureau. That superior officer concurred in the recommended conclusion that the allegations were not sustained. Cases in which the allegations are not sustained “will be regarded as confidential and the records of such cases will be retained only in the files of the Internal Investigation Division and are not a matter of public information.” General Order 48-77, annex A, ¶ III.H. Further, because the instant matter involved allegations of excessive force and of discourtesy, the IID report also was reviewed by the Complaint Evaluation Board which would have submitted its findings and recommendations to the Police Commissioner’s office.

The Complaint Evalua ⁸⁶ tion Board was created by Chapter 889 of the Acts of 1975, which is codified as Code of Public Local Laws of Baltimore City (1979), §§ 16-41 through 16-50 (Local Code). The board is composed of the State’s Attorney of Baltimore City, the Attorney General of Maryland, the City Solicitor of Baltimore City, the Police Commissioner of Baltimore City, the Executive Director of the Legal Aid Bureau, Inc., the Executive Director of the Maryland Human Relations Commission, and the Executive Director of the Baltimore City Community Relations Commission, or their delegates. Local Code § 16-48 provides that “[rjecords containing the names or identification of police personnel, complainants, investigators and witnesses may not be disclosed or released to the general public.” In the instant IID investigation the Deputy Commissioner’s conclusion of “not sustained” was reached by April 1989. In a letter of May 31, 1990, the Committee, through counsel, requested permission to inspect and obtain copies of the IID report.

No individual person joined with the Committee in that request. Major Blackwell, the custodian, by letter of July 3, 1990, denied inspection of the requested records relying, inter alia, on § 10-618(f). 4 The Committee filed the instant action seeking judicial review in the Circuit Court for Anne Arundel County. See § 10-623. No individual joined the Committee as a complainant in this action.

One of the defendants is Edward V. Woods, Police Commissioner of Baltimore City, the ultimate custodian of the requested public records. His joinder is ⁸⁷ sufficient to make this action justiciable. 5 At trial Major Blackwell was the principal witness for both sides. Using the seven circumstances enumerated in § 10-618(f)(2) as a checklist, counsel for the Committee developed facts which the Court of Special Appeals summarized as follows: “This investigation had been concluded without further action at least a year before the request for access to the report was made, and so there was no investigation to be prejudiced by disclosure ((f)(2)(vi)). The department, through counsel, conceded at Major Blackwell’s deposition that there was no law enforcement proceeding with which disclosure could interfere ((f)(2)(i)).

The department also stipulated that, to its knowledge, there was no impending trial or adjudication which disclosure could prejudice ((f)(2)(ii)) and that disclosure would not cause danger to or imperil the life or safety of any individual ((f)(2)(vii)).” Maryland Committee, 91 Md.App. at 264 , 603 A.2d at 1370-71 . The Committee also introduced the following portion of Major Blackwell’s deposition: “[Q.] [C]ould you tell me how the disclosure of any of those records to the Plaintiff would disclose the identity of a confidential source? “[A.] Because there are no anonymous sources in this particular investigation, I can’t honestly see where it would have a negative impact on anybody involved.” ⁸⁸ In open court Major Blackwell explained that “there is pretty much a big concern with individuals coming forward to share what information that they have,” both within and without the police department. He said that IID investigators “certainly aren’t revered by the members [of the Department] that [the IID investigators] have to deal with.” Likewise, civilians “are very reluctant to share what information [they have] for fear of reprisal, of what sort I can’t specify, but they do voice concern with sharing information and having their personal information ... being disseminated.” After the testimony was concluded, the circuit court reviewed in camera the IID report. In a written opinion denying inspection the circuit court found that “[i]n 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 I[I]D 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 the disclosure of the documents would be contrary to public interest.” A final judgment was entered.

The Committee appealed to the Court of Special Appeals. The Committee, however, did not have sealed and transmitted as part of the record on appeal the IID report that was examined in camera by the trial judge. The judge apparently caused the report to be returned to Major Blackwell. The Court of Special Appeals reversed.

It held that the Committee was a person in interest. 91 Md.App. at 264 , 603 A.2d at 1370 . Consequently, that court analyzed the Act’s exclusion of reports of police department investiga ⁸⁹ tions in terms of the seven circumstances enumerated in § 10-618(f)(2), which comprise the only justifications for withholding a police investigation report from a person in interest. Referring to paragraph (f)(2)(iv), the court said that “Major Blackwell conceded that no anonymous sources were used in the investigation, and so disclosure would not reveal the identity of a confidential source.” Id. at 264-65, 603 A.2d at 1371 . When the mandate of the Court of Special Appeals was issued, the Committee obtained an order from the circuit court directing production of the subject report.

In conjunction with our grant of certiorari, this Court stayed the circuit court’s order. At oral argument in this Court, counsel for the Committee advised us of additional facts that occurred after the trial court record closed. On November 1, 1991, certain individuals who were on the premises of the Committee’s headquarters on the evening of November 7, 1988, filed a complaint in the United States District Court for the District of Maryland alleging that certain police officers violated Title 28, U.S.C. § 1983 . At least some of the plaintiffs in the federal action are represented by the same attorney who is counsel for the Committee in the action before us.

During pretrial discovery in the federal action the court ordered production of the IID report, subject to a protective order limiting use of the report to the federal court action and otherwise prohibiting its dissemination. Counsel for the Committee frankly acknowledges to us that the action before us continues because he “would like to obtain [the report] for use on behalf of the Committee without any restrictions as to that use.” The Committee also acknowledged in oral argument in this Court that the Committee, as distinguished from individual persons, did not file any complaint with the Baltimore City Police Department concerning the conduct of any officers on the evening of November 7, 1988. ⁹⁰ III The Committee is not a person in interest in the context of § 10—618(f)(2). We shall assume, arguendo, that a political committee under the Election Code is a “person” as that term is used in the State Government Article. § 1-101(d). 6 The Committee, however, is not a person “in interest,” because it is not “the subject of” the IID report. § 10-611(e). The two police officers on