Police Patrol Security Systems, Inc. v. Prince George's County

HARRELL, J. Police Patrol Security Systems, Inc. (“Police Patrol”), a Virginia corporation authorized to transact business in Maryland, installs, maintains, and monitors electronic security and alarm systems in buildings. In 2001, Police Patrol requested of the County Executive of Prince George’s County, Maryland that it be provided with the “name, address, and telephone number of every resident or business” that maintained an electronic security or alarm system in the county. Prince George’s County (“the County”) maintained records of such information because of its legislative requirement that such systems be registered with the County’s police department. Police Patrol based its request on the Maryland Public Information Act (“the MPIA”). 1 The County denied Police Patrol’s request, claiming that a provision in its relevant registration ordinance made the information confidential.

The Circuit Court for Prince George’s County upheld the County’s decision to deny the request. 2 Before the Court of Special Ap ⁷⁰⁷ peals decided Police Patrol’s appeal, this Court, on its own initiative, issued a writ of certiorari. Police Patrol v. Prince George’s County, 376 Md. 49 , 827 A.2d 112 (2003). I. Prince George’s County Code (“PGCC”) § 9-134 (1999 ed.) (“the Ordinance”) requires the user of every building alarm system within the county to register with the County’s police department. Alarm users are required to file an application and submit a fee as part of the registration process.

Once registered, users must display an alarm registration sticker, bearing their permit number, at the main entrance of the building. The Prince George’s County Police Department maintains a record of each applicant, including name, address, telephone number, and the type of alarm installed. According to the Ordinance, this information “shall be securely maintained and restricted to inspection only by police officers or County employees specifically assigned the responsibility for handling and processing alarm user permits in the course of official duties.” PGCC § 9-134(d). The Ordinance also provides that it shall be deemed a misdemeanor for any County employee to disclose the information.

Id. Police Patrol’s local attorney sent the following letter, dated 10 August 2001, to the Hon. Wayne Curry, then County Executive of Prince George’s County: “Dear Mr. Curry: “This firm represents Police Patrol Security Systems, Inc. This is a freedom of information request under Md. State Government Code Ann. § 10-613 (2001) submitted on behalf of our client. ⁷⁰⁸ “We are requesting information related to Prince George’s County residents, who subscribe to alarm services, be provided for our client’s business use. Specifically, we request the name, address, and telephone number of every resident or business that subscribes to a security system provider that utilizes the services of or is registered with the Prince George’s County Police Department. “We are prepared to pay reasonable costs for compiling the requested information and reproducing it. “Please contact our office if you have any questions regarding this request.

Thank you for your prompt attention to this matter.” The request was forwarded to the Prince George’s County Attorney’s Office (Office of Law). That office responded with the following letter, dated 10 September 2001: “Dear Mr. [ ]: “The [Prince George’s County] Office of Law is in receipt of your letter dated August 10, 2001 under the Maryland Public Information Act .(‘MPIA’) and requesting information related to Prince George’s County residents] that subscribe to alarm services. Specifically, you have requested the name, address, and telephone number of every resident or business that subscribes to a security system provider that utilizes the services of or is registered with the Prince George’s County Police Department. “Section 9-134(d) of the Prince George’s County Code prescribes that alarm user permit information is securely maintained and is ‘restricted to inspection only by police officers or County employees specifically assigned the responsibility for handling and processing alarm user permits in the course of official duties.’ Further, the law provides criminal sanctions for revealing the information contained [in] the alarm user permit applications to any other person without the applicant’s consent. “As you know, the MPIA requires the custodian of a public record to deny disclosure of a public record if that document is confidential by law. Since Section 9-134 of the ⁷⁰⁹ Prince George’s County Code prohibits disclosure of this confidential document, please be advised that the custodian hereby denies your request “Please be further advised that you may seek judicial review of this decision pursuant to Section 10-623, State Government, Annotated Code of Maryland.” On 20 December 2001, Police Patrol filed a complaint in the Circuit Court for Prince Georges County.

Police Patrol requested that the Circuit Court order the County to produce the records. The County responded by asserting that the Ordinance declared the information that Police Patrol requested to be confidential or privileged, within the meaning of those terms as used in the MPIA, and that the County therefore was required to withhold the information. The Circuit Court held a hearing on 10 October 2002, at the conclusion of which it denied Police Patrol’s request for an injunction, relying on the rationale supplied by the County. Police Patrol appealed to the Court of Special Appeals, posing the following questions, which we have slightly rephrased. 1.

Did the Circuit Court err by treating this action as a mandamus action instead of an action under the Maryland Public Information Act, thereby improperly placing the burden of proof on Police Patrol rather than Prince George’s County.[ 3 ] ⁷¹⁰ 2. Did the Circuit Court err by finding that the request for information by Police Patrol Security Systems, Inc., was rightfully denied by Prince George’s County.

II

A. The Circuit Court agreed with the County that § 9-134(d) of the Prince George’s County Code makes personal information submitted by an applicant for an alarm user’s permit confidential for the purposes of denying disclosure under the MPIA. As we shall discuss in more detail below, the General Assembly did not intend to allow counties, by local law or ordinance, to create additional exemptions or grounds for refusing disclosure of information required by the MPIA to be disclosed. The argument based on the Ordinance was the only ground advanced by the County for denying Police Patrol access to the information requested. Further, the Circuit Court appears to have relied solely on this rationale to support its decision to uphold the County’s denial.

That was erroneous as a matter of law. In the period between the filing of Police Patrol’s complaint and the Circuit Court’s hearing and ruling in this case, however, a potentially relevant amendment, titled “Public Security Documents,” was added to the MPIA.2002 Md. Laws, Chap. 3. The amendment was designated an “emergency measure” and took effect immediately upon enactment on 9 April 2002. The goal of the new amendment was to give records custodians greater discretion to deny requests for information that might compromise the security of buildings or facilities.

One of its provisions allows a records custodian to withhold information about “alarm or security systems or technologies” for any budding, structure, or facility if the disclosure of that information would be contrary to the public interest. The record of this case indicates that neither the Circuit Court nor the parties considered the new amendment at the Circuit Court hearing. Because of the language of the pertinent amendment to the MPIA and the timing of its enaction vis á vis the ⁷¹¹ proceedings in this case, the County must be given a fresh opportunity to consider Police Patrol’s request. B. The County argues that the Ordinance justifies nondisclosure of the personal information supplied by residents who applied for alarm user registration permits.

The source of this justification begins with § 10-615(1) of the MPIA. Section 10-615(1) prohibits a custodian from disclosing public records if “by law, the public record is privileged or confidential.” The Ordinance, at PGCC § 9-134(d), requires the County’s Chief of Police to “securely” maintain registration information and restrict inspection to police or County employees, in the course of official duties, having responsibility for the pertinent registration process. A breach of the Ordinance in this regard is punishable as a misdemeanor. Thus, as the County’s argument goes, the Ordinance is a “law” within the meaning of MPIA § 10-615(1) and that “law” essentially makes the information sought by Police Patrol “privileged or confidential” within the State statute.

We previously considered the interplay between local laws and the MPIA. In Caffrey v. Dep’t of Liquor Control, 370 Md. 272 , 805 A.2d 268 (2002), we determined that § 505 of the Montgomery County Charter was partially preempted by the MPIA. In the Caffrey case, Anthony Caffrey submitted a proposal to operate and manage a county-owned, retail off-sale alcoholic beverage store. Montgomery County denied his proposal.

Caffrey subsequently filed a series of requests, under the MPIA, to inspect “various documents relating to the relevant proposal and selection process.” 370 Md. at 278-79 , 805 A.2d at 272 . Montgomery County “produced some of the documents, but withheld others, citing various privileges and grounds for denial available under the MPIA.” Id. Caffrey argued that Montgomery County, in withholding certain documents, had violated § 505 of the Montgomery County Charter as well as the MPIA. According to Caffrey, the County Charter “creates ‘much narrower’ exemptions from disclosure ‘than those available under the MPIA,’ and, ‘in effeet[,] waives ⁷¹² the broader, permissible exemptions under the MPIA.’ ” 370 Md. at 298 , 805 A.2d at 283 .

In considering Caffrey’s argument, we divided the allowed grounds for denial of a request for information under the MPIA into two classes: the “mandatory denials” (§§ 10-615, 10-616, and 10-617) and the “permissible denials” (§ 10-618). In our discussion of mandatory denials, we noted that a county charter is subordinate to the public general laws of Maryland. 370 Md. at 302 , 805 A.2d at 286 (citing Md. Const. Art. XI-A, § 1). A local government ordinance or charter that conflicts with a public general law enacted by the General Assembly is preempted and thus is invalid.

Id. (citing Montrose Christian Sch. Corp. v. Walsh, 363 Md. 565, 579 , 770 A.2d 111, 119 (2001)). Each of the mandatory denial provisions in the MPIA requires a custodian of records to refuse inspection of certain records.

Thus, a county ordinance or charter that requires a custodian to act differently is preempted. In Caffrey , this meant that the Montgomery County Charter, even if construed as granting greater accessibility to information than the MPIA, could not require County officials to disclose information that the MPIA’s mandatory denial provisions required them to withhold. Under such circumstances, the Charter is preempted. In other words, home rule counties may not waive the duty to deny MPIA requests imposed on their officials by the mandatory provisions of the MPIA.

In contrast, the “permissible denial” provisions of the MPIA authorize custodians to exercise discretion in granting or denying requests for certain information. Therefore, home rule counties may direct or guide the exercise of this discretion, or even eliminate it entirely, by local enactment. To the extent that a county charter waives the authority vested in its officials to deny requests under the permissible denials provisions of the MPIA, that waiver may be effective. Montgomery County officials in Caffrey were not entitled to withhold information that the Montgomery County Charter required ⁷¹³ them to disclose, even though that information might have been withheld under § 10-618 of the MPIA. 4 Though the situation in the present case is reversed from that in Caffrey , with Prince George’s County arguing that a county ordinance requires its officials to withhold information, the relevant legal principles to be applied are the same.

According to PGCC § 9-134(d): The information contained in an alarm user permit application required by this Section and other information received by the Chief of Police through correspondence or communications with an alarm user shall be securely maintained and restricted to inspection only by police officers or County employees specifically assigned the responsibility for handling and processing alarm user permits in the course of official duties. If any employee of the County is found to have knowingly or willfully revealed the information contained in an alarm user permit application or in correspon ⁷¹⁴ dence or communications with an alarm user to any other person for any purpose not related to this Subtitle or official law enforcement matters and without the express written consent of the alarm user supplying such information, the County employee shall be guilty of a misdemeanor. The MPIA requires that, “[e]xcept as otherwise provided by law, a custodian shall permit a person or governmental unit to inspect any public record at any reasonable time.” § 10-613(a). Standing alone, these two provisions appear to conflict with one another. “A local ordinance is pre-empted by conflict when it prohibits an activity which is intended to be permitted by state law, or permits an activity which is intended to be prohibited by state law.” Montrose Christian Sch.

Corp. v. Walsh, 363 Md. 565, 580 , 770 A.2d 111, 120 (2001). The County argues that § 10-615(1), which requires that a custodian deny inspection of a record if, “by law, the public record is privileged or confidential,” saves its ordinance from preemption. According to the County, its ordinance makes the data collected in alarm user applications confidential “by law.” Because the custodian is required to deny inspection of confidential information, the County was justified in withholding the information Police Patrol requested. To the contrary, the General Assembly never intended to give counties the right to create additional or new nondisclosure exceptions not contemplated within the MPIA by declaring information “confidential” in local laws. § 10-615 reads: 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; (in) the rules adopted by the Court of Appeals; or (iv) an order of a court of record. ⁷¹⁵ The sources of “law” listed in § 10-615(2) apply equally to § 10-615(1).

In other words, no public record may be considered confidential or privileged unless a basis for that is found in one of those enumerated sources of law. 5 Local ordinances are not among those sources. Accordingly, a local law or ordinance may not make a particular public record or piece of public information “privileged or confidential” for the purposes of the MPIA unless one of the sources of law listed in § 10-615(2) does so or authorizes the adoption of such. This analysis is consistent with our previous decisions construing and applying the MPIA, where we confirmed that constitutional, statutory, and rule-based law may make records confidential or privileged, but where no such authority was found to exist for that accomplishment by local laws and ordinances. See Office of the Governor v. Washington Post Co., 360 Md. 520 , 759 A.2d 249 (2000) (executive privilege, which is rooted in the concept of separation of powers inherent in the Maryland Constitution, may sometimes make certain information confidential for the purposes of the MPIA); Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653 , 755 A.2d 1130 (2000) (the right to a fair trial, found in Maryland and U.S. Constitutions, can justify the closing of a courtroom and the sealing of a trial record from the public in limited cases); Office of the Attorney General v. Gallagher, 359 Md. 341 , 753 A.2d 1036 (2000) (Md. Rule 2-402(c) makes attorney work product privileged for MPIA purposes); Office of the State Prosecutor v. Judicial Watch, Inc., 356 Md. 118 , 737 A.2d 592 (1999) (Md. Rule 4-642 makes grand jury investigation materials confidential for MPIA purposes); Harris v. Baltimore Sun Co., 330 Md. 595 , 625 A.2d 941 (1993) (the Maryland Rules of Professional Conduct for Lawyers, adopted by the Court of Appeals, see Maryland Rule 16-812, can make information confidential for MPIA purposes). ⁷¹⁶ III.

The County presents us with two alternative grounds for affirming the Circuit Court’s judgment: an imagined MPIA “Personal Information Exception” and the 2002 amendment to the MPIA entitled “Public Security Documents” (see slip op. at 1, n. 2, and 5). An appellate court may affirm the Circuit Court’s decision on a ground adequately supported by the record even though the ground was not relied upon by the trial court, and it is not uncommon for this Court to exercise its discretion and affirm a trial court on such alternative grounds. See, e.g., Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 68-69 , 825 A.2d 388, 393 (2003). This case, however, is not amenable to such treatment in its current posture.

The only issue presented in the Circuit Court was whether the County’s justification, under its ordinance, for denying Police Patrol’s request was authorized as a matter of law. We hold that it was not. It is not consistent logically to say that the County’s justification for denying the request was sufficient on grounds other than those supplied by the County. We cannot say what the County would have done had it known that its initial and, until appeal, sole justification was legally insufficient.

Furthermore, at least one of the alternative grounds presented by the County requires it to exercise discretion and consider factors that we cannot say, on the record before us, necessarily were considered previously. We may not exercise the County’s discretion in its place, and so the matter must be remanded for the County to make a new determination. 6 A. As we previously expressed, and as we reiterate today, there are no discrete “public interest,” “personal information,” ⁷¹⁷ or “unwarranted invasion of privacy” exceptions to the MPIA. See Washington Post, 360 Md. at 554 , 759 A.2d at 268 (“the Maryland Public Information Act does not contain a general ‘catchall’ public interest exemption. Instead, for a record to be exempt from disclosure because of the ‘public interest,’ it must fall within one of the specific categories set forth in § 10-618.”); Kirwan v. The Diamondback, 352 Md. 74, 88-89 , 721 A.2d 196, 203 (1998) (“the Maryland Public Information Act does not contain an exemption for particular cases whenever the disclosure of a record might cause