Stromberg Metal Works, Inc. v. University of Maryland

WILNER, J. Appellant, Stromberg Metal Works, Inc., a subcontractor on a construction project at the College Park Campus of the University of Maryland (UMCP), filed a request under the Maryland Public Information Act (PIA) to inspect and copy certain public records pertaining to the project. The University turned over some of the records that were requested but redacted certain information in others, claiming that the information was privileged and therefore not subject to disclosure. Stromberg filed suit under the Act to obtain the information. Obviously crediting the University’s assertion that the requested information was privileged, the Circuit Court for Prince George’s County entered summary judgment in favor of the University, and Stromberg appealed.

We granted certiorari on our own initiative, prior to proceedings in the ¹⁵⁴ Court of Special Appeals, and shall affirm in part and reverse in part. BACKGROUND The project in question is the renovation of the Adele H. Stamp Student Union at the College Park Campus. The general contractor for the job was Grunley Construction Co. Inc. Grunley subcontracted certain mechanical work to John J. Kirlin, Inc., which, in turn, subcontracted the fabrication and installation of ductwork to Stromberg. The project had initially been budgeted at $39.3 million, but that budget was increased to $44.9 million by August, 2001. 1 Construction began in July, 1999, and was due to be completed in September, 2002.

As of December, 2001, the project was running more than $2 million over the then-effective budget amount and was 53 weeks behind schedule. Apparently concerned whether there was adequate funding to complete the project, Stromberg, invoking the PIA, made requests for various documents pertaining to the project on November 29, 2000, August 9, 2001, and September 28, 2001. Among the documents requested were monthly reports prepared by the University’s Department of Architecture, Engineering and Construction with respect to the project (AEC Reports). The AEC Reports were prepared by John Mitchell, an employee in the AEC Department and project manager for the project.

He and Joyce Hinkle, a procurement employee in the Department of Procurement and Supply, were the custodians of the reports. The AEC Report is in the form of two spread sheets detailing certain information about all of the University’s ongoing construction projects and one spread sheet for each project that contains additional information regarding that project. The individual project report for the Stamp project shows such things as (1) the original funding authorization and budget for planning, construction, equipment, and other items, ¹⁵⁵ (2) approved funding and budget changes, (3) the current funding and budget for each category of expense, (4) the amount of the budget that is encumbered and liquidated to date, (5) the estimated amount needed to complete the project, (6) the final cost forecast, (7) any budget variance, and (8) the target and actual dates of the start of construction, substantial completion, and project completion. One of the consolidated spread sheets shows the projected budget for the project, the final cost forecast, the amount and percentage that the project is under or over budget, and how many weeks the project is behind or ahead of schedule.

After a review of the requested documents by the Attorney General’s Office for any privileged material, the University made the documents available in January, 2002. Among the documents turned over for inspection were unredacted copies of the AEC Reports, including the latest Report, for December, 2001. Stromberg requested copies of some of the documents, including the AEC Report for December, 2001; they were delivered a week later. The inspection and copying were supendsed by the Attorney General’s Office.

On August 14, 2002 — some eight months later — Stromberg filed a supplemental application for additional documents, including the monthly AEC Reports for and after January, 2002. The application was sent to Jennifer Forrence, the Assistant Attorney General who had supervised the disclosure of the first round of requested documents, and John Mitchell. The PIA requires the custodian of public records to grant or deny an application within 30 days after receiving it. See Maryland Code, § 10-614(b) of the State Government Article (SG).

On September 13, 2002, another Assistant Attorney General, David Chaisson, responded that the University was gathering the documents but would need additional time to gather them all. The parties agreed to a 30-day extension for production of the documents. On October 2, 2002, Mr. Chaisson advised that the documents were ready for inspection, and that the Univei’sity was entitled to $1,750 for its search and ¹⁵⁶ production efforts. A check for that amount was promptly sent to the University.

Inspection occurred on October 8, but a number of documents, including the requested monthly AEC Reports for January — September, 2002, were not produced. In response to Stromberg’s complaint about the missing AEC Reports, Mr. Chaisson "wrote, on October 16, 2002, that “[s]ome of the information provided in those reports is privileged under the executive privilege and, as well, may contain confidential commercial financial information.” Chaisson added that, to the extent the reports contained privileged information, they would be produced in a redacted form. The next day, the University turned over copies of the AEC Reports from which a great deal of information had been redacted. On the reports pertaining to the Stamp Project, in particular, the dollar amounts for the estimated cost to complete the project, the final cost forecast, the estimated budget variance, forecasted surplus or shortfall, and the current percentage of completion were redacted.

On the consolidated reports, the only information supplied was the projected budget for the Stamp Project and the number of days and weeks that project was behind schedule. All information relating to the other projects was redacted, apparently without objection. In November, 2002, Stromberg filed this action to enjoin the University, Mitchell, and Hinkle from withholding the requested information, to permit Stromberg to inspect the monthly AEC Reports, and for ancillary relief. In its answer to the complaint, the University admitted or denied various factual allegations but asserted no particular basis for withholding the information.

Its defense was presented in a memorandum filed in support of its motion for summary judgment, in which it asserted that the redacted information was protected by “executive privilege” and by the University’s privilege for “confidential commercial information.” The University relied on two provisions of the PIA — SG §§ 10-615(1) and 10-618(b). Section 10-615(1) requires a custodian to deny inspection of a public record or any part of a public record if, “by law, the ¹⁵⁷ public record is privileged or confidential.” Section 10 — 618(b) jmrnits a custodian to 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 [governmental] unit.” As to both sections, the University claimed that the redacted information was “protected by executive privilege,” citing as authority Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), Office of the Governor v. Washington Post, 360 Md. 520 , 759 A.2d 249 (2000), and Cranford v. Montgomery County, 300 Md. 759 , 481 A.2d 221 (1984). In its argument, the University treated “executive privilege” as if it were the same defense or doctrine as “the deliberative process privilege” recognized under the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552 (b)(5). In that regard, it averred that the redacted number for the forecast of final cost was not just a “simple number” but instead represented Mitchell’s “subjective assessment of the potential final cost to the University for the project, including the project manager’s assessment of the University’s potential liability for claims filed by the contractor, for problems on the project that the manager believes may result in claims, and for actual and potential change order requests.” That information, it contended, was provided to Mitchell’s supervisor, Carlo Colella, so that he could make decisions regarding the amount of resources to devote to the project and whether additional funding might be required, and an assessment of the value of pending claims.

The University did not indicate what, if any, authority Mr. Colella had to make or implement any of those decisions or, if he did not have that authority, who did. In addition to the executive/deliberative process privilege, the University claimed that the redacted information also constituted “confidential commercial information,” which it said was privileged under SG § 10 — 618(b). For that proposition, it relied on a number of Federal cases arising under the FOIA, 5 U.S.C. § 552 (b)(5) — the Federal analog to § 10-618(b). ¹⁵⁸ After hearing argument on the cross-motions, the court entered a brief order granting the University’s motion, denying Stromberg’s motion, and entering judgment for the University. No reasons or findings were included in the order.

DISCUSSION Preliminary Issues As noted, a great deal of information was redacted from the AEC Reports. The focus of this appeal, however, has been on the one number for the total forecasted cost of the Stamp project. Although, in their briefs and oral argument, the parties sometime spoke of the redacted information generally, their arguments addressed only that one piece of information. Stromberg states as its position “that the nature of the redacted data — numbers representing the total cost of a public construction project — is such that UMCP’s claimed privileges do not attach.” The arguments, pro and con, focus on that one number in the various reports.

Accordingly, we have no basis upon which to disturb the Circuit Court’s ruling with respect to the other redacted information and shall consider only the one item that seems still to be in contention. The predominant question in this appeal is the substantive one of whether the number on the AEC Reports for total cost of the Stamp project is subject to the asserted privileges and, for that reason, is exempt from disclosure. Stromberg has raised a collateral ground for denying the University’s right to assert those privileges, however — that of timeliness in asserting them — which we shall consider preliminarily. Stromberg made its application for disclosure of the documents at issue here on August 14, 2002.

SG § 10 — 614(b)(1) requires that the custodian either grant or deny an application promptly but, in any event, within 30 days after receiving the application. Section 10-614(b)(4) provides that, with the consent of the applicant, that time limit may be extended “for not more than 30 days.” Section 10 — 614(b)(3) requires a custodian who denies an application to notify the applicant immediately ¹⁵⁹ and, within 10 working days, to give the applicant a written statement of the reasons and'legal authority for the denial. As noted, Stromberg consented to a 30-day extension of the initial 30-day period, which would have required the University to grant or deny the application by October 13, 2002 — 60 days after the August 14 application. Although the AEC Reports were not delivered with the other records on October 8, the University did not notify Stromberg of its intention to redact portions of the AEC Reports until October 16, 2002, three days past the deadline.

Stromberg argues that the executive privilege claim was thus untimely and should be barred. We reject that argument, for two reasons. First, it is not at all clear that the University missed the deadline. It had until October 13 to comply with or reject the request and, to the extent it rejected the request, ten additional days to inform Stromberg in writing of the rejection and the reasons for it.

The actual rejection, at least implicitly, occurred on October 8, when the AEC Reports were not turned over with the other records that had been requested. Chaisson gave written notice of the final rejection with respect to the redacted information on October 16, well within the ten days allowed by the statute. Second, although the PIA sets time limits on a response by the Governmental unit, it says nothing expressly about the effect of non-compliance with those limits. The essence of Stromberg’s position is that, if the unit fails to deny the application within the prescribed time, it is not permitted to deny the application thereafter and must therefore disclose even records or parts of records that the law otherwise either requires or permits the custodian to shield.

We are unwilling to interpret the statute in that manner, as we do not believe that the Legislature could possibly have intended such a result. The time limits are important. In SG § 10-612, the General Assembly expressed the view that all persons are entitled to have access to information about the affairs of Government and the official acts of Government officials and that the ¹⁶⁰ statute should 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.” (Emphasis added). The time limits are enforceable in a number of ways under the statute.

SG § 10-623 permits a person who is denied inspection of a public record to file an action in court and authorizes the court, in an expedited manner, (1) to order production of the record, (2) to assess damages against any custodian who knowingly and willfully failed to disclose the record, and (3) to assess reasonable counsel fees and other litigation costs against the Governmental unit. If the court finds that the custodian acted arbitrarily or capriciously in withholding the document, the court must send a certified copy of its finding to the appointing authority of the custodian, which may then take disciplinary action against the custodian. Failure to permit inspection of a document subject to inspection within the prescribed time period obviously constitutes at least a temporary denial of inspection, which, unless authorized under the PIA (see SG § 10-619), may justify immediate invocation of the judicial remedy. Section 10-627 also makes a knowing and willful violation of the statute a criminal offense.

Given these various remedies for withholding records that are diselosable under the statute, requiring the disclosure of non-disclosable records is not necessary as an enforcement mechanism. Apart from the lack of necessity, forcing a unit to permit inspection of records that the statute requires or permits the custodian to shield, simply because of a failure to meet the statutory deadline for denying inspection, is not a reasonable construction of the statute and is not a construction that the Legislature likely intended. The presumption of the statute is in favor of disclosure. See Governor v. Washington Post, supra, 360 Md. 520, 544-45 , 759 A.2d 249, 262-63 .

The Legislature carefully carved out for non-disclosure only those kinds or categories of records for which it necessarily found some supervening public policy that justified their shielding. ¹⁶¹ Indeed, in SG § 10-626, it created civil liability on the part of any individual who knowingly and willfully permits inspection of a public record in violation of the statute, and in § 10-627, it provided a criminal penalty for that conduct as well. We cannot conceive that the Legislature would have contemplated, much less desired, that the public policy justifying the shielding of specific kinds of records be subordinated to the mere failure of a custodian to act within the statutory time limits'— that the custodian be required to disgorge records that the Legislature has declared should not be disclosed simply because the custodian did not communicate his/her decision in a timely manner. 2 Executive I Deliberative Process Privilege The term “executive privilege,” used by the University to justify its redaction of the forecasted final cost number on the AEC Reports, is a broad and ill-defined term that encompasses a number of more specific privileges. It reaches public attention most dramatically when invoked to shield records made in connection with the deliberative decision-making process used by chief or high Executive officials — Presidents, Governors, and their immediate advisors — and, as both the Supreme Court and this Court have pointed out, when applied ¹⁶² in that context, the deliberative process privilege subsumed within that term has its roots in the Constitutional doctrine of separation of powers. See United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974); Cheney v. U.S. District Court, — U.S.—, 124 S.Ct. 2576 , 159 L.Ed.2d 459 (2004); and Hamilton v. Verdow, supra, 287 Md. 544, 553, n. 3 , 414 A.2d 914 , 920 n. 3.

The term “executive privilege” has also been used as the umbrella for shielding diplomatic, military, and security-laden secrets that may not involve those officials. It is those kinds of executive privilege that are encompassed within SG § 10-615(1) — the Constitutionally-based privilege that, when invoked, must be given the most serious attention and, when properly invoked by the person holding the privilege, require the custodian to deny inspection. It is, after all, not unusual for the physical custodian of the record to be someone other than the person holding the privilege, and it cannot have been the legislative intent — even if the legislature were competent to do it — to permit the custodian to waive or ignore another’s Constitutionally based privilege. We are not dealing here with that form of executive privilege.

The records at issue do not contain any diplomatic, military, or security secrets and do not involve the deliberative process of the President or Governor. They were prepared by John Mitchell, the Stamp project manager who worked in the University’s Department of Architecture, Engineering & Construction (AEC). Mr. Mitchell prepared the reports for