Office of Attorney General v. Gallagher

ELDRIDGE, Judge. The issue presented in this case is whether documents within an investigatory file, which are not exempt from public disclosure under § 10-618(f) of the Maryland Public Information Act, Maryland Code (1984, 1999 Repl.Vol.), §§ 10-611 through 10-630 of the State Government Article, but which may be exempt from disclosure under other sections of the Act, must be disclosed to a “person in interest.” I. Maryland’s Public Information Act was originally enacted in 1970 and codified as Maryland Code (1957, 1975 RepLVol.), Art. 76A, §§ 1 through 5. As this Court has reiterated many ³⁴³ times, “the provisions of the ... Act reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government.” Kirwan v. The Diamondback, 352 Md. 74, 81 , 721 A.2d 196, 199 (1998), quoting Fioretti v. State Board of Dental Examiners, 351 Md. 66, 73 , 716 A.2d 258, 262 (1998).

The Act expressly provides that “all persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” § 10-612(a). See Office of State Prosecutor v. Judicial Watch, 356 Md. 118, 134 , 737 A.2d 592, 601 (1999). In order to carry out this right of access, the Act is to be construed in favor of disclosure. See § 10-612(b).

There are exceptions to this general rule of disclosure, however, as codified in §§ 10-615 through 10-619 of the Act. These enumerated exemptions delineate certain types of records which are to be excluded from public inspection. Moreover, some of these exemptions include special provisions if the applicant is a “person in interest,” defined as “a person or governmental unit that is the subject of a public record or a designee of the person or governmental unit.” § 10-611(e)(l). Paul Gallagher, the respondent, seeks access to records compiled by the petitioner, the Securities Division of the Maryland Attorney General’s office.

Mr. Gallagher and several other individuals were the focus of an investigation and administrative proceedings conducted by the Attorney General’s office from October 1985 through June 1986, relating to Caucus Distributors, Inc., a publishing and fund-raising organization affiliated with Lyndon H. LaRouche, Jr. See Caucus Distributors, Inc. v. Maryland Securities Commissioner, 320 Md. 313, 316-323 , 577 A.2d 783, 784-787 (1990). Based, in part, on the investigation conducted by the Maryland Attorney General’s office, Mr. Gallagher was convicted, in the Commonwealth of Virginia, Roanoke County Circuit Court, of securities fraud and securities registration offenses. Mr. Gallagher is presently serving a thirty-four year sentence of imprisonment in Virginia, and, as he has exhausted his direct appeals, ³⁴⁴ he is now planning to file in Virginia a petition for a writ of habeas corpus. Mr. Gallagher’s attorney, anticipating that the records compiled by the Maryland Attorney General’s office would “be useful to Mr. Gallagher’s petition,” requested the records, under the Maryland Public Information Act, by letter dated November 15, 1996.

This request was actually a follow-up to a request made in 1990 by George Canning, another individual affiliated with Caucus Distributors, Inc. and Lyndon La-Rouche. This original request was granted in part and denied in part. Assistant Attorney General Kathryn Rowe disclosed approximately 230 documents to Mr. Canning, but withheld certain documents pursuant to enumerated exemptions under the Public Information Act. Mr. Gallagher’s request, at issue in this appeal, sought all of the documents withheld by Ms. Rowe when they were first requested by Mr. Canning.

When Mr. Gallagher’s letter was received by the Securities Division of the Attorney General’s office, Assistant Attorney General T. Webster Brenner retrieved the relevant files and reviewed the documents previously withheld by Ms. Rowe. In his response letter to Mr. Gallagher, he stated: “Upon a careful review of the material, it appears [Ms. Rowe’s] determination to deny access was in accordance with the mandatory and discretionary provisions of the Act. Nonetheless, I have reviewed each document and find that in the context of your current request some production is permissible.” Mr. Webster then listed 58 documents that he was disclosing, copies of which were provided with the letter, and reiterated that the remaining documents were being withheld pursuant to the exemptions cited by Ms. Rowe (§§ 10-615(1) and 10-618(f)), as well as § 10-617 of the Act. After receiving Mr. Webster’s letter, Mr. Gallagher filed a complaint in the Circuit Court for Baltimore City seeking a writ of mandamus to compel the disclosure of the 82 documents which had been withheld by Mr. Brenner.

The Circuit Court first ordered the Attorney General to submit a Vaughn ³⁴⁵ index, 1 then ordered an in camera review of the documents at issue. After conducting the in camera inspection, the Circuit Court issued an order directing disclosure of all or part of 17 documents, upholding the non-disclosure of 34 documents based on exemptions set forth in §§ 10-615, 10-618(b) and 10-618(f)(2)(v) of the Act, and noting that 31 of the documents had not been provided to the court. When those 31 documents were subsequently provided, the court ordered that all of them could be withheld based on §§ 10-615, 10-617, and/or 10-618. Upon Mr. Gallagher’s appeal to the Court of Special Appeals, the judgment of the Circuit Court was affirmed in part and reversed in part.

The intermediate appellate court held that, because all the records at issue were part of an “investigatory file,” and because Mr. Gallagher was a “person in interest” as defined in the Public Information Act, the only exemption applicable to the documents was § 10—618(f)(2). See Gallagher v. Attorney General, 127 Md.App. 572 , 736 A.2d 350 (1999). Thus, the Court of Special Appeals affirmed the Circuit Court’s judgment insofar as it had applied § 10-618(f)(2) to authorize the non-disclosure of certain documents. The appellate court, however, reversed the judgment of the Circuit Court insofar as that court had denied inspection based on other exemptions under the Act.

The intermediate appellate court remanded the case to the trial court with directions to re-evaluate the documents, which had been withheld pursuant to §§ 10-615, 10-617, and/or 10-618(b), in order to determine if § 10—618(f)(2) authorized the non-disclosure of those documents. Finally, the Court of Special Appeals directed that all “[documents not exempt under ... § 10-618(f)(2) must be released” to Mr. Gallagher. Gallagher v. ³⁴⁶ Attorney General, supra, 127 Md.App. at 586 , 736 A.2d at 358 . The Office of the Attorney General filed a petition for a writ of certiorari which this Court granted.

Attorney General v. Gallagher, 356 Md. 634 , 741 A.2d 1095 (1999).

II

A. The section of the Act setting forth the exemption for investigatory records, § 10-618, provides in pertinent part as follows (emphasis supplied): “ § 10-618. Permissible denials. “(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: (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 State or 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; ³⁴⁷ (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.” The parties do not dispute that the respondent is a “person in interest,” nor do they dispute that the documents at issue are part of an “investigatory file.” The respondent argues, however, that when disclosure of an investigatory record would not produce any one of the seven results enumerated under § 10-618(0(2), the record must be disclosed to a “person in interest,” irrespective of all other exemptions under the Act. The other exemptions, found by the trial court to be applicable to some of the documents at issue, provide important justifications for non-disclosure. For example, § 10-615 states as follows: “ § 10-615 Required Denials—In general. “A custodian shall deny inspection of a public record or any part of a public record if: (1) by law, the public record is privileged or confidential; or (2) the inspection would be contrary to: (i) a State statute; (ii) a federal statute or a regulation that is issued under the statute and has the force of law; (iii) the rules adopted by the Court of Appeals; or (iv) an order of a court of record.” The petitioner argued, and the Circuit Court held, that several documents were exempt from disclosure under § 10-615, as “privileged.” They included documents embodying “attorney mental impressions” or attorney “work product.” According to the respondent’s argument and the holding of the Court of Special Appeals, privileged documents, including attorney work product, contained within an investigatory file, would have to be disclosed to a person in interest if none of ³⁴⁸ the seven exemptions under § 10—618(f)(2) were applicable. The Court of Special Appeals’ holding would allow litigants to have access to records in an investigatory file which disclose the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Maryland Rule 2-402(c).

Such records have not heretofore been discoverable pursuant to Rules 2-402(c) and 4-263(c). As this Court made clear in Faulk v. State’s Attorney for Harford Co., 299 Md. 493, 510 , 474 A.2d 880, 889 (1984), the Public Information Act “was not intended to be a device to enlarge the scope of discovery beyond that provided by the Maryland Rules.... ” On the contrary, the Act explicitly provides, in § 10-615, “that effect is to be given to court rules when to allow public inspection of public records would contravene those rules.” State Prosecutor v. Judicial Watch, supra, 356 Md. at 133 , 737 A.2d at 600 . Moreover, if this Court were to adopt the intermediate appellate court’s holding in this case, § 10-618(f)(2) would also override the exemptions for “confidential commercial information” (§ 10—617(d)(2)), “confidential financial information” (§ 10—617(d)(3)), “information about the finances of an individual” (§ 10—617(f)), and “interagency or intra-agency letter[s] or memorand[a] that would not be available by law to a private party in litigation with the unit” (§ 10-618(b)). Nothing 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.

B. The Court of Special Appeals partially relied upon this Court’s opinion in Baltimore v. Maryland Committee Against Gun Ban, 329 Md. 78 , 617 A.2d 1040 (1993), for its holding that the seven exemptions under § 10—618(f)(2) provide the only legitimate bases under the Act for a custodian’s refusal to disclose investigatory records to a person in interest. The intermediate appellate court stated that this Court’s Maryland Committee opinion ³⁴⁹ “noted that under 10—618(f)(2), a custodian could deny 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).’ Id. at 82, 617 A.2d at 1040 . The Court [of Appeals] emphasized that the seven exemptions enumerated in paragraph (f)(2) ‘comprise the only justifications for withholding a police investigation report from a person in interest.’ Id.; See also Fioretti, supra.” Gallagher v. Attorney General, supra, 127 Md.App. at 580 , 736 A.2d at 355 . In the Maryland Committee case, a political