Prince George's County v. Washington Post Co.

KENNEY, Judge. Appellant/cross-appellee, Prince George’s County (the “County”), challenges the decision of the Circuit Court for Prince George’s County, determining that some of the records, or information contained therein, requested by appellee/crossappellant, the Washington Post Co. (the “Post”), was public information pursuant to the Maryland Public Information Act (“MPIA”), Md.Code Ann. (1984, 1999 Repl.Vol., 2000 Supp.), § 10-611, et seq., of the State Government Article (“SG”). ²⁹⁷ The Post, in turn, contests certain limitations on the records to be disclosed. The County presents six questions and the Post two, 1 which we have distilled into one: Did the circuit court err in its determinations regarding the Post’s requests for information pursuant to the MPIA? We affirm the circuit court’s decision as to the Commanders’ Information Reports, the closed Human Relations Commission records that were the subject of public hearings, the eight closed Police Department investigative reports, and the risk management database contents and fields; and we vacate, in part, the circuit court’s decision regarding the police roster. ²⁹⁸ I. FACTUAL AND PROCEDURAL BACKGROUND This case involves numerous Post requests for police-related records made pursuant to SG § 10-611, et seq. 2 The County’s denial of those requests resulted in two lawsuits, filed pursuant to SG § 10-623(a), 3 which are the subject of this appeal.

The parties are in agreement that there are no material facts in dispute in this case. The following factual summary is not in chronological order. It is organized according to the subject matter of the Post’s MPIA requests to the County. On January 12, 2000, a Post staff writer requested copies of the Prince George’s County Police Commanders’ Information ²⁹⁹ Reports (“CIRs”), also known as the daily Commander’s Log, for the period between December 10, 1999, and January 10, 2000.

The County denied that request on March 24, 2000, stating that the purpose of the CIRs was “to provide a vehicle for Police Department supervisors to inform Police Department management of matters that management must be made aware of to effectively manage the affairs of the Police Department.” The County went on to state that CIRs were only retained for thirty days. It cited SG § 10-615(1) 4 as a basis for the County’s denial. On July 14, 2000, the same staff writer requested a “roster of all sworn officers employed by the Prince George’s County Police Department, including each officer’s full name, rank, badge number, job assignment and date of hire.” By letter dated August 16, 2000, the County denied the Post’s request, stating that the request was “contrary to the public interest” and sought “personnel information ... not subject to public inspection.” The County cited SG § 10—616(i) 5 as the justification for its denial. In the alternative, the County offered the Post “documents that detail the number of sworn officers, the allocation of sworn officers to the various districts and other assignments, and the number of sworn officers holding the various ranks.” Further, the County indicated that it could provide to the Post “a list of all County employees without the job classification of the employee.” In May 2000, the staff writer obtained access, without filing an MPIA request, to a box of Prince George’s County Human Relations Commission (“HRC”) records containing citizen complaints of police misconduct. 6 HRC permitted the report ³⁰⁰ er to look at closed cases that had resulted in public hearings.

The staff winter subsequently requested unredacted copies of a subset of those records. Instead, the County provided redacted copies of HRC’s records, excluding the identity of the officers, the complainants, the witnesses, and investigatory notes. On August 11, 2000, the Post requested investigative reports from eight cases related to “police-involved shootings and in-custody death cases” compiled by the Prince George’s County Police Department, Criminal Investigations Division (“CID”). The County orally advised the Post that its request had been denied.

On June 28, 2000, the Post requested an electronic copy of the County’s risk management case tracking database, including “all records included in the database and all fields in the database.” The County denied that request on July 21, 2000, citing interagency communications and attorney work-product exemptions. 7 ³⁰¹ On July 25, 2000, the Post requested “[a] printout of the file layout of the risk management case tracking database, listing the fields by name and description.” The County denied this request on August 21, 2000, stating that it did not own or maintain the database and that the owner, Trigon Administrators, Inc. (“Trigon”), considered the database “confidential proprietary information.” In response to the County’s denials, the Post filed two lawsuits in the Circuit Court for Prince George’s County. The first lawsuit (Case No. CAL 00-20465), filed against the County and the Prince George’s County Police Department on September 5, 2000, sought declaratory and injunctive relief based on the County’s failure to make the CIRs public. 8 The second lawsuit (Case No. CAL 00-22133) was filed on September 28, 2000, against the County, the County Police Department, and HRC. It sought declaratory and injunctive relief based on the County’s refusal to make public the roster of all sworn officers; HRC’s documents relating to police misconduct; the investigative reports compiled by CID; and documents relating to the risk management case tracking database. 9 The circuit court consolidated the two cases on December 19, 2000. On August 30, 2001, following oral argument on the Post’s motion for summary judgment, the court ruled as follows: But suffice it to say, as far as the Commander’s Information Reports are concerned, these are generated and they’re circulated, and they’re circulated to individuals within the department.

And I understand their circulation, their circulation are not restricted to a small cadre of people who are in only a need-to-know venue. It’s passed from person to person. And obviously people who don’t need to know see these reports. Therefore, this Court finds that these ³⁰² reports are public information.

So long as they are going to be created by a Commanders [sic], it is the Court’s view that they are available to the Washington Post or any other entity who operates pursuant to the First Amendment of the United States Constitution. Therefore, I’m going to grant the Motion with respect to the Commander’s Information Report. As to the police roster, I also grant the movant’s Motion for Summary Judgment but with this caveat and this restriction. For the protection of individuals who may be in sensitive positions, the County may disclose separately all the names of all individuals who work for Prince Georges County in a public safety role.

As far as the Humans Relations records are concerned, I meant that very clearly that the horses are out, they’re running around. Unfortunately for [the County counsel] and his boss they had nothing to do with it. The protocol was not followed by [the Post staff writer] who looked at things, and things that he saw that were within his universe of request by the Washington Post, I grant their Motion that they be disclosed. Investigatory files, I have grave concerns about the investigatory files.

I find that I am going to deny to [sic] the Motion for Summary Judgment. I don’t believe that there’s been enough information brought forth by the movant to say that the Court should grant that motion, and I would note that 10-618 doesn’t require that the custodian give any explanation for why to deny what they deny. They have a right to deny it if they feel it’s in the public interest and investigatory files are very sensitive files, and I find that they have—they, meaning the County—has sustained its burden for showing that it’s in the public interest that these files not be disclosed, and that burden has not been overcome by the movant in this particular case. The closed cases give me some concern.

I do not know legally what would be the value to the public of nondisclosure of closed files, and the County has not sustained its burden in that, so I grant the Motion for Summary Judgment as to those closed investigative files. ³⁰³ The Risk Management database, I grant the Washington Post Motion in part and I deny in part. And here’s what I mean by that. Any attorney/client information or work product of attorneys that’s included in that database is not subject to disclosure. As far as intellectual property is concerned and the proprietary rights, I understand it is easier for the County to say, well, we have contracted with X company and therefore X company has said that you can’t have it, and that’s not on us, that’s on X company.

I think that’s a sham. And the Court doesn’t like that type of sham because the party who contracts with another party can, by contract language, build in what may be disclosed and what may not be disclosed. On the other hand, at no time would I wish to put a company at risk as far as intellectual property is concerned. Therefore, the order of this Court is that any information that’s not attorney/client information is not privileged as to work product and is not intellectual property that resides within the Risk Management database may be disclosed to the Washington Post.

Now I’m sure you’ll be back again arguing what qualifies for that, and I don’t mind that because I need to see specifically what it is. But we cannot place a vendor at risk with intellectual property, nor do I intend for this Court to place the attorneys in the Office of Law at risk by disclosing their work product. Based on the Post’s motion for summary judgment, the court issued a written order on October 3, 2001, granting summary judgment in favor of the Post with regard to the CIRs; the names of all individuals who work for the County in a public safety role; the unredacted HRC records; the eight closed CID records; and the requested information from the County risk management case tracking database contents and fields that were not protected by the attorney-client privilege, 10 the attorney work-product doctrine, or that was not ³⁰⁴ Trigon’s proprietary intellectual property. The County filed a notice of appeal on October 24, 2001.

On October 24, 2001, the County filed, and the Post contested, a motion to stay enforcement of the court’s October 3, 2001 order, which was granted on November 7, 2001. The Post filed a cross-appeal on October 31, 2001.

II

STANDARD OF REVIEW This case was decided by the circuit court based on the Post’s motion for summary judgment. Summary judgment “is used to dispose of cases when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.” Okwa v. Harper, 360 Md. 161, 178 , 757 A.2d 118 (2000) (citations omitted). “A genuine issue of material fact is a factual dispute that is real and not imagined.” Schmerling v. Injured Workers’ Ins. Fund, 139 Md.App. 470, 483 , 776 A.2d 80 (2001), rev’d on other grounds, 368 Md. 434 , 795 A.2d 715 (2002). A material fact is one that would “affect the outcome of the case.” King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). “Summary judgment may not be defeated by a dispute as to a fact that is immaterial.” Schmerling, 139 Md.App. at 483 , 776 A.2d 80 .

When reviewing a court’s decision on summary judgment, we “must review the facts, and all inferences therefrom, in the light most favorable” to the nonmoving party. Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726 (2001). “Evidentiary matters, credibility issues, and material facts which are ³⁰⁵ in dispute cannot properly be disposed of by summary judgment.” Underwood-Gary v. Mathews, 366 Md. 660, 685 , 785 A.2d 708 (2001) (quoting Frederick Road Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 93-94 , 756 A.2d 963 (2000)). Because there is no dispute of material fact, “our review is limited to whether the trial court was legally correct.” Lippert v. Jung, 366 Md. 221, 227 , 783 A.2d 206 (2001) (citation omitted). We must look to whether the court correctly interpreted and applied the relevant law to the uncontested material facts.

Fister v. Allstate Life Ins. Co., 366 Md. 201, 210 , 783 A.2d 194 (2001). “As with all questions of law, we review this matter de novo.” Fister, 366 Md. at 210, 783 A.2d 194 . Moreover, “[i]n appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the lower court relied in granting summary judgment.” PaineWebber Inc. v. East, 863 Md. 408 , 422, 768 A.2d 1029 (2001). In cases interpreting an MPIA request, “[f]acts necessary to the determination of a motion [for summary judgment] may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admission of facts, stipulations and concessions.” Bowen v. Davison, 135 Md.App. 152, 157 , 761 A.2d 1013 (2000).

The MPIA, originally enacted and codified in 1970, was modeled after the federal Freedom of Information Act (“FOIA”), 5 U.S.C. 552, enacted by Congress in 1966. In FOIA cases, the trial court may grant summary judgment on the basis of government affidavits or declarations that explain why requested information falls within a claimed exemption, as long as the affidavits or declarations are sufficiently detailed, non-conclusory, and submitted in good faith, and as long as a plaintiff has no significant basis for questioning their reliability. Center for Nat’l Sec. Studies v. United States Department of Justice, 215 F.Supp.2d 94, 99 (D.D.C.2002). ³⁰⁶ III. DISCUSSION A. MPIA The MPIA provides 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.” 11 SG ³⁰⁷ § 10-612(a). 12 The Court of Appeals in Fioretti v. Maryland State Bd. of Dental Exam’rs, 351 Md. 66, 73 , 716 A.2d 258, 262 (1998) (citation omitted), reiterated that “ ‘the provisions of the [MPIA] 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.’ ” “The intent of the MPIA in favor of disclosure of public records is unmistakable.” Baltimore v. Burke, 67 Md.App. 147, 153 , 506 A.2d 683 , cert. denied, 306 Md. 118 , 507 A.2d 631 (1986).

Therefore, as the Court of Appeals has further explained, the provisions of the statute “must be liberally construed ... in order to effectuate the [MPIA’s] broad remedial purpose!,]” A.S. Abell Pub. Co. v. Mezzanote, 297 Md. 26, 32 , 464 A.2d 1068 (1983), and in favor of permitting inspection of a public record, 13 “with the least cost and least delay to the ³⁰⁸ person or governmental unit that requests the inspection.” Kirwan v. The Diamondback, 352 Md. 74, 80-81 , 721 A.2d 196 (1998) (citing SG § 10-612(b)). Access to public records is initiated by filing a “written application” to the governmental custodian 14 in charge of the requested documents. SG § 10-614(a)(l).

The custodian “shall grant or deny the application,” SG § 10-614(b)(l), and follow the remaining procedures outlined in SG § 10-614(b), which provide: (2) A custodian who approves the application shall produce the public record immediately or within the reasonable period that is needed to retrieve the public record, but not to exceed 30 days after receipt of the application. (3) A custodian who denies the application shall: (i) immediately notify the applicant; ³⁰⁹ (ii) within 10 working days, give the applicant a written statement that gives: 1. the reasons for the denial; 2. the legal authority for the denial; and 3. notice of the remedies under this Part III of this subtitle for review of the denial; and (iii) permit inspection of any part of the record that is subject to inspection and is reasonably severable. If the custodian grants an MPIA application, he or she “shall permit a person or governmental unit to inspect any public record at any reasonable time.” SG § 10—613(a). If, however, the custodian denies public access to the requested information, the public agency “has the burden of sustaining a decision to deny inspection of a public record[.]” 15 SG § 10-623(b)(2)(1); see Office of the Governor v. Washington Post Co., 360 Md. 520, 545 , 759 A.2d 249 (2000) (quoting Fioretti, 351 Md. at 78 , 716 A.2d 258 ) (“ ‘the public agency involved bears the burden in sustaining its denial of the inspection of public records’ ”); Cranford v. Montgomery County, 300 Md. 759, 771 , 481 A.2d 221 (1984) (“The custodian who withholds public documents carries the burden of justifying nondisclosure.”).

The law is clear that “the [MPIA] does not contain a general ‘catchall’ public interest exemption.” Office of the Governor, 360 Md. at 554 , 759 A.2d 249 . As the Court of Appeals has stated: “[C'Jourts will simply no longer accept conclusory and generalized allegations of exemptions,” the first burden on an agency which seeks judicial approval of a claim of exemption is to provide “a relatively detailed analysis in manageable segments.” This emphasis on an explanation which presents enough detail to make understandable the issues involved in the claim of exemption without presenting so much ³¹⁰ detail as to compromise the privileged material is repeatedly-reflected in the federal cases. Cranford, 300 Md. at 778 , 481 A.2d 221 (citation omitted). The government must provide a particularized justification for withholding each portion of a public record that it claims is exempt from public disclosure. “Required denials” of public information are governed by SG § 10-615, which provides: 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.

Certain specific records are protected from disclosure, except under limited circumstances, pursuant to SG § 10-616, which provides, in pertinent part: (a) In general.—Unless otherwise provided by law, a custodian shall deny inspection of a public record, as provided in this section. (h) Certain police records; criminal charging docu ments.—(1) This subsection applies only to public records that relate to: (i) police reports of traffic accidents; (ii) criminal charging documents prior to service on the defendant named in the document; and (iii) traffic citations filed in the Maryland Automated Traffic System. ³¹¹ (2) A custodian shall deny inspection of a record described in paragraph (1) of this subsection to any of the following persons who request inspection of records for the purpose of soliciting or marketing legal services: (1) an attorney who is not an attorney of record of a person named in the record; or (ii) a person who is employed by, retained by, associated with, or acting on behalf of an attorney described in this paragraph. (i) Personnel records.—(1) Subject to paragraph (2) of this subsection, a custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information. (2) A custodian shall permit inspection by: (i) the person in interest; 16 or (ii) an elected or appointed official who supervises the work of the individual.

Additionally, SG § 10-617 provides the following exemptions: (a) In general.—Unless otherwise provided by law, a custodian shall deny inspection of a part of a public record, as provided in this section. * * * (d) Commercial information.•—A custodian shall deny inspection of the part of a public record that contains any of the following information provided by or obtained from any person or governmental unit: ³¹² (1) a trade secret; 17 (2) confidential commercial information; (3) confidential financial information; or (4) confidential geological or geophysical information. (e) Public employees— Subject to § 21-504 of the State Personnel and Pensions Article, a custodian shall deny inspection of the part of a public record that contains the home address or telephone number of an employee of a unit or instrumentality of the State or of a political subdivision unless: (1) the employee gives permission for the inspection; or (2) the unit or instrumentality that employs the individual determines that inspection is needed to protect the public interest. (f) Financial information.—(1) This subsection does not apply to the salary of a public employee. (2) Subject to paragraph (3) of this subsection, a custodian shall deny inspection of the part of a public record that contains information about the finances of an individual, including assets, income, liabilities, net worth, bank balances, financial history or activities, or creditworthiness.

(3) A custodian shall permit inspection by the person in interest. (g) Information systems.—A custodian shall deny inspection of the part of a public record that contains information about the security of an information system. Maryland law also permits a custodian to deny a request for public information pursuant to SG § 10-618, which states, in pertinent part: ³¹³ (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. (b) Interagency and intra-agency documents.—A custodian may deny inspection of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit.

(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; (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. ³¹⁴ (i) Trade secrets, confidential commercial information, confidential financial information of the Maryland Technology Development Corporation.—A custodian may deny inspection of that part of a public record that contains information disclosing or relating to a trade secret, confidential commercial information, or confidential financial information owned in whole or in part by the Maryland Technology Development Corporation. 18 [Emphasis added.] Based on a custodian’s denial of access to public records, the party requesting the information may file “a complaint with the circuit court” seeking their disclosure. SG § 10-623(a). The circuit court can base its decision to permit or deny access to the requested information on the State agency’s cited exemptions or it can order an in camera inspection of the public records.

SG § 10-623(c)(2). Although not mandatory, an in camera inspection “may in some cases be ‘needed in order to make a responsible determination on claims of exemptions.’ ” 19 Office of the Governor, 360 Md. at 545 , 759 A.2d 249 (quoting Cranford, 300 Md. at 779 , 481 A.2d 221 ). In reaching a decision, the court may: (i) enjoin the State, a political subdivision, or a unit, official, or employee of the State or of a political subdivision from withholding the public record; ³¹⁵ (ii) pass an order for the production of the public record that was withheld from the complainant; and (iii) for noncompliance with the order, punish the responsible employee for contempt. SG § 10—623(c)(3).

In addition, the court may assess the “governmental unit” or the “official custodian” “actual damages and any punitive damages that the court considers appropriate if the court finds that any defendant knowingly and willfully failed to disclose or fully to disclose a public record that the complainant was entitled to inspect under this Part III of this subtitle.” SG § 10-623(d). If any person permits inspection or use of public records in violation of the above laws, they may be held liable for actual and punitive damages or subject to criminal penalties. SG §§ 10-626 and 10-627. B. The Police Manual and Public Information The Prince George’s County Police General Order Manual (the “Police Manual”), 20 provides, in pertinent part, the following discourse on issues regarding press relations and public information: 1/300.05 ROLE OF THE NEWS MEDIA The role of the news media is to inform the public.

This is a legitimate and necessary task essential to the operation of a democratic system. In accomplishing this goal, members of the news media will be performing their duties at many of the events in which the Department participates. 1/300.10 ROLE OF THE DEPARTMENT The Department shall actively seek a cooperative climate in which the media may obtain information on matters of public interest in a manner which does not hamper police ³¹⁶ operations. The Department shall inform the media of events within the public domain that are handled by or involves the agency. 1/300.15 RELEASE OF INFORMATION Should an unusual or catastrophic incident occur, which would be expected to stimulate community interest, the media will be contacted by the PIO [the Public Information Office] he [sic] will assume responsibility for the release of information. 1/300.20 SCOPE AND CONTENT OF THE RELEASE OF INFORMATION Scope and content of news release[s] must be determined according to the circumstances of each situation. Generally, a description of those circumstances which are not legally privileged and which will not prejudice the rights of suspects or interfere with an investigation will be offered.

Such determinations shall be made by the PIO, or the senior officer at the incident scene after he has [a] consultation with the PIO and the investigating officer. ❖ its * 1/400.05 REQUESTS FOR INFORMATION The public and the media may direct inquiries to the Department requesting information on a variety of subjects. While it is Department policy to fulfill these requests, it will not always be possible to do so. The determination to release information or participate in interviews will be made according to the facts of the case. Routine requests shall normally be coordinated by through [sic] PIO.

C. Commanders’ Information Reports The County argues that the CIRs are exempt from public disclosure, citing them status as interagency and intra-agency documents, pursuant to SG § 10-618(b), because their disclosure would violate the executive privilege doctrine. It further contends that disclosure of the CIRs is exempt under the personnel records exemption, SG § 10—616(i), and ³¹⁷ the investigations exemption, SG § 10-618(f)(l)(i). 21 The County explains that the release of the CIRs to the public would be contrary to public policy, because their disclosure would induce a chilling effect on the production of “frank and honest reporting” in CIRs. The County also asserts that the CIRs are destroyed after thirty days. Instead of providing CIRs to the media, the County explains that it provides the Post with a weekly “list of every crime that has occurred” and press releases regarding any “serious incidents that require police action or involvement” within twenty-four to forty-eight hours, depending on the day the incident occurred. 22 The Post argues that the CIRs do not contain exempted information and that no evidence suggests that they contain “confidential advice or deliberations” that satisfies the executive privilege doctrine.

It asserts that the CIRs contain “factual summaries of events ... and contain[ ] no information whatsoever about the County’s deliberative process.” In the event that any exempt material is included within the CIRs, the Post contends that the County has an obligation to redact those portions, pursuant to SG § 10—614(b)(3)(iii), rather than deny the entire MPIA request. The Court of Appeals has recognized that the executive privilege doctrine is “rooted in the separation of powers principle set forth in Article 8 of the Maryland Declaration of Rights.” Office of the Governor, 360 Md. at 557 , 759 A.2d 249 . Accordingly, “if the records here at issue, or any part of them, ³¹⁸ are non-disclosable under the executive privilege doctrine, then such records or parts of records are exempt from disclosure under § 10-615(1) of the [MPIA].” Id. In that case, the Court stated: The doctrine of executive privilege, in addition to protecting military and diplomatic secrets, is chiefly designed to protect confidential advisory and deliberative communications to government officials.

This Court in the Hamilton case thus explained (287 Md. at 558, 414 A.2d at 922): “The necessity for some protection from disclosure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action. A fundamental part of the decisional process is the analysis of different options and alternatives. Advisory communications, from a subordinate to a governmental officer, which examine and analyze these choices, are often essential to this process. The making of candid communications by the subordinate may well be hampered if their contents are expected to become public knowledge.” After reviewing cases in the United States Supreme Court and other courts, we pointed out in Hamilton [v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980) ] that “the cases throughout the country, both federal and state, have recognized the doctrine of executive privilege which, in addition to state and military secrets, gives a measure of protection to the deliberative and mental processes of decision-makers.” [Hamilton,] 287 Md. at 561 , 414 A.2d at 924 .

The Court went on in Hamilton to hold that the privilege “is for the benefit of the public and not the governmental officials who claim the privilege” ( 287 Md. at 563 , 414 A.2d at 924 ), that the privilege is not absolute, and that in “many situations the courts have, engaged in a balancing process, weighing the need for confidentiality against the ... need for disclosure and the impact of nondisclosure upon the fair administration of justice.” 287 Md. at 563 , 414 A.2d at 925 . ³¹⁹ We also held in Hamilton that when a government official makes a formal claim of executive privilege for confidential communications “of an advisory or deliberative nature, there is a presumptive privilege, with the burden upon those seeking to compel disclosure.” Ibid. Turning to factual documents as opposed to documents of an advisory or deliberative nature, we held in Hamilton that “ordinarily, ‘memoranda consisting only of compiled factual material’ ” are disclosable, 287 Md. at 564 , 414 A.2d at 925 , quoting EPA v. Mink, 410 U.S. 73, 87 , 93 S.Ct. 827, 836 , 35 L.Ed.2d 119, 132 (1973). We recognized in Hamilton, 287 Md. at 564-565 , 414 A.2d at 925-926 , however, that “material cannot always ‘easily be separated into fact finding and decision making categories,’ Boeing Airplane Company v. Coggeshall, supra, 280 F.2d 654 at 662. Moreover, some factual material is entitled to a degree of protection under the privilege, although not to the same extent as opinions and recommendations.

This would include facts obtained upon promises or understandings of confidentiality, investigative facts underlying and intertwined with opinions and advice, and facts the disclosure of which would impinge on the deliberative process. In these situations, the government’s asserted reasons for nondisclosure are weighed against the litigant’s need for discovery in light of the particular circumstances of each case. Frankenhauser v. Rizzo, 59 F.R.D. 339, 342-346 (E.D.Pa.1973); O’Keefe v. Boeing Company, supra, 38 F.R.D. [329] at 334-336 [ (S.D.N.Y.1965) ].” [Emphasis added. Some citations omitted.] Office of the Governor, 360 Md. at 557-59 , 759 A.2d 249 .

In Cranford, 300 Md. at 774 , 481 A.2d 221 , the Court of Appeals stated: Because the executive privilege aspect of the agency memoranda exemption is designed to protect recommendations in the decision-making process, factual matters are not within that exemption.... Rarely, however, will a given document reflect purely deliberative or policy-making processes with ³²⁰ out factual matters.... The [MPIA] similarly requires agencies to utilize the principle of severability in responding to requests for public records. In fact, the MPIA provides that a custodian shall “permit inspection of any part of the record that is subject to inspection and is reasonably severable.” SG § 10—614(b)(3)(iii).

We find no evidence that the information contained in the CIRs would be considered “confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action.” Hamilton, 287 Md. at 558 , 414 A.2d 914 . Based on those cases, we perceive no error in not recognizing executive privilege as a basis for a blanket denial of the CIRs and therefore we must consider other exemptions. The “interagency and intra-agency” exemption cited by the County permits the denial of public information when “any part of an interagency or intra-agency letter or memorandum ... would not be available by law to a private party in litigation with the unit.” SG § 10—618(b). As explained in Office of the Governor, 360 Md. at 551 , 759 A.2d 249 , the permissible exemption for interagency and intra-agency letters or memoranda to some extent reflects that part of the executive privilege doctrine encompassing letters, memoranda or similar internal government documents containing confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another official for the purpose of assisting the latter official in the decision-making function. “Under the language of the federal Freedom of Information Act, 5 U.S.C. § 552 (b)(5), which contains an exemption for interagency or intra-agency memoranda or letters and which is worded the same as § 10-618(b) of the [MPIA], the courts have held that the exemption is limited to documents created by government agencies or agents, or by outside consultants called upon by a government agency ‘to assist it in internal decisionmaking.’ ” Office of the Governor, 360 Md. at 552 , 759 A.2d 249 (quoting County of Madison v. United ³²¹ States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir.1981)).

It accordingly protects documents normally privileged in the civil discovery context. FTC v. Grolier, Inc., 462 U.S. 19, 26 , 103 S.Ct. 2209 , 76 L.Ed.2d 387 (1983); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975). The Police Manual, section 5/113, describes CIRs as: Information concerning incidents that may generate attention from the media, public or department management, will be immediately submitted to the affected member’s Commander. The police officer who is in charge and/or in control of the situation or prisoner, will be responsible for writing the Commander’s Information Report for the following incidents: • Major Grimes[.] • Unusual or controversial incidents)/] • Whenever a police officer is injured (if the injured officer is incapacitated and unable to complete the Commander’s Information Report, the supervisor will assume this responsibility). • Whenever the police officer 1 uses force involving a firearm, night stick or blackjack, or whenever an officer strikes a prisoner. • Whenever a prisoner is injured.

This includes injuries inflicted by departmental personnel or injuries self induced, whether intentional or accidental. • Whenever a prisoner becomes ill while in custody and receives medical treatment. The Sector Supervisor will be notified and will immediately respond, review the situation and sign the Commander’s Information Report when completed by the involved officer. • Prior to completion of his tour of duty, the supervisor will review and forward the Commander’s Information Report to the appropriate Commander. • The Division/District Commander will forward the Commander’s Information Report to the appropriate Bureau Chief. ³²² These reports are to be “received each business day.” Police Manual, § 1/805.05. It is undisputed that CIRs are intra-agency documents. If their inspection “would be contrary to the public interest,” the issue is their availability “by law to a private party in litigation with the unit.” SG § 10-618(a) & (b).

Here, the trial court based its decision to make the CIRs available to the Post as a public document, at least in part, on the fact that they were “circulated to individuals within the department.... [N]ot restricted to a small cadre of people who are in only a need-to-know venue.” Moreover, the record includes a copy of an undated letter, addressed “Dear Citizen,” in which the County Police Department, District IV, attempted to inform citizens about patterns utilized by suspects arrested in breaking and entering offenses. Attached to that letter was a copy of a CIR that included descriptions of the suspects, the general area where the alleged crime took place, and the responding officers’ names and identification numbers. Redacted were the names and addresses of the victims and witnesses. In light of the above-summarized principles, and the fact that those reports contain factual information concerning alleged criminal incidents, the CIRs, or at least some portion of them, would appear to be discoverable to “a private party in litigation with the unit.” SG § 10-618(b).

With regard to the personnel records exemption, SG § 10-616(i), the Court of Appeals has stated: The term “personnel record” is not expressly defined in the statute. Nonetheless, the language of subsection (i) discloses what type of documents the Legislature considered to be personnel records. The statute lists three categories of documents which are: (1) an application for employment; (2) performance rating; and (3) scholastic achievement. Although this list was probably not intended to be exhaustive, it does reflect a legislative intent that “personnel records” mean those documents that directly pertain to employment and an employee’s ability to perform a job. ³²³ Kirwan, 352 Md. at 82-83 , 721 A.2d 196 .

The Court went on to note that records that “do not relate to [the employee’s] hiring, discipline, promotion, dismissal, or any matter involving his status as an employee ... do not fit within the commonly understood meaning of the term ‘personnel records.’ ” Id. The Court concluded that, in light of the Act’s policy favoring disclosure, the General Assembly did not intend “that any record identifying an employee would be exempt from disclosure as a personnel record.” Id. at 84 , 721 A.2d 196 ; see also 78 Op. Att’y Gen. 291, 293 (1993) (stating that the purpose of SG § 616(i) “ ‘is to preserve the privacy of personal information about a public employee that is accumulated during his or her employment’ ”) (citation omitted). We therefore conclude that CIRs are not protected generally by the personnel records exemptions.

In fact, the County’s own brief indicates that the press releases regarding “major incidents are created from the CIRs.” Although the record is unclear whether all the CIRs requested by the Post were within the County’s possession or whether they were destroyed after thirty days, we are persuaded that the exemptions cited by the County do not automatically preclude disclosure of the CIRs as a class.