Stromberg Metal Works, Inc. v. University of Maryland

WILNER, J. Although subdivided in its brief, the single issue presented by Stromberg Metal Works, Inc. in this appeal is whether the Circuit Court for Prince George’s County abused its discretion in denying Stromberg’s motion for an award of costs and attorneys’ fees under Maryland Code, § 10-623(f) of the State Government Article (SG), which is part of the State Public Information Act (PIA). In an earlier proceeding, we held that Stromberg, which had filed multiple requests for documents under the PIA, was entitled to certain information that respondent, the University of Maryland, had denied. Stromberg v. University of Maryland, 382 Md. 151 , 854 A.2d 1220 (2004) (Stromberg I). ¹²³ As the alleged prevailing party in that proceeding, Stromberg claims an entitlement to recover costs and attorneys’ fees expended in the prosecution of that claim — $62,546. The Circuit Court disagreed and denied the motion, the Court of Special Appeals affirmed that decision, and so shall we.

BACKGROUND Most of the facts relevant to Stromberg’s request for information under the PIA, upon which its motion for reimbursement of costs and attorneys’ fees is based, are set forth in our earlier Opinion and need not be repeated in any detail. Suffice it to say that Stromberg was a sub-subcontractor in the renovation of the Student Union building on the College Park campus of the University. At some point, the project fell a year behind schedule and was approximately $2 million over the then-current revised budget. The general contractor had made a significant, but contested, claim against the University, and Stromberg expressed concern whether there would be sufficient funds available to complete the project.

On three occasions, it requested various documents relating to the project, including certain monthly reports prepared by an employee in the University’s Department of Architecture, Engineering, and Construction who acted as the project manager. We shall refer to those reports as the AEC Reports. The University turned over the requested documents — thousands of them — including unredacted copies of the AEC Reports through December, 2001. In August, 2002, Stromberg filed a supplemental request for additional documents, including the AEC Reports for and after January, 2002.

Although the University turned over the documents requested in the supplemental application, in contrast to its previous responses, it redacted much of the information in the AEC Reports. That led to a lawsuit filed in the Circuit Court for Prince George’s County to enjoin the University from denying access to that information. In response to Stromberg’s complaint, the University averred that the redacted information was lawfully shielded under SG §§ 10-615(1) and 10-618(b). Section 10-615(1) requires a custodian ¹²⁴ to deny inspection of public records that are, by law, confidential or privileged; § 10-618(b) permits a custodian to deny inspection of any part of an interagency or intra-agency memorandum that would not be available to a private party in litigation with the governmental unit.

As to both sections, the University claimed that the redacted information was protected by some combination of an executive-deliberative process privilege and, for purposes of § 10 — 618(b), constituted confidential commercial information that would not be available to a civil litigant. The Circuit Court, agreeing with the University’s defenses, granted its motion for summary judgment, and we issued a writ of certiorari on our own initiative, prior to any proceedings in the Court of Special Appeals, to consider Stromberg’s appeal. We observed, preliminarily, that, although a great deal of Information included in the AEC Reports had been redacted, the focus of Stromberg’s appeal was on only one item of information — a single dollar figure that constituted the project manager’s estimate of the total forecasted cost of the project. 1 We therefore limited our consideration to that one item and found no basis on which to disturb the Circuit Court’s ruling with respect to any of the other redacted information. As a further preliminary matter, we rejected Stromberg’s argument that the University had asserted the executive-deliberative process privilege in an untimely manner and had thereby waived its right to rely on that privilege. ¹²⁵ In examining the defenses asserted by the University with respect to the one item, it was clear that there was a paucity of Maryland law directly bearing on the executive-deliberative process and confidential commercial information issues, and, to resolve those issues, we had to borrow from and analyze decisions interpreting the Federal Freedom of Information Act (FOIA).

In the end, we held that the one item of information at issue — the composite dollar figure estimate on each of the monthly AEC Reports — was not protected by either the executive-deliberative process privilege stated in § 10-615(1) or the interagency or intra-agency memorandum exclusion in § 10-618(b). We concluded that the executive-deliberative process privilege was limited, in this context, to the deliberative process of the highest Executive officials, and that neither the project manager in the University’s Department of Architecture, Engineering, and Construction, nor the supervisor to whom the AEC Reports were submitted qualified as such. We also determined that the redacted number in question was almost entirely factual in nature and had no real deliberative quality to it and that it did not constitute confidential commercial information because (1) it was not the kind of time-sensitive information to which that exception is often applied, and (2) the number itself, being a composite figure embodying the project manager’s estimates of a variety of factors, including all of the significant pending claims, none of which were individually discernible from the aggregate number, would not reveal anyone’s confidential views as to the validity or value of any of the constituent claims or, indeed, as to the future status of the project. Our ultimate judgment was to remand for an order directing the University to permit inspection of that one redacted number on the AEC Reports but to affirm the Circuit Court’s decision in all other respects.

Upon remand, the University promptly complied with our mandate. This proceeding commenced when Stromberg filed a motion for an award of over $62,000 in counsel fees and costs incurred in pursuing the action to enjoin the University from denying access to the redacted information. It argued that it ¹²⁶ had prevailed in its quest for the information, that the public benefitted from the release of the information which, Stromberg contended, “addressed the general public’s interest and concern over the fiscal management on a public construction project that was spiraling out of control,” and that the University’s redactions “were not reasonably based on the law.” In response, the University essentially conceded that Stromberg had substantially prevailed in its action and was therefore eligible for an award of counsel fees and costs. It averred, however, that, in deciding whether an award should be made, the court needed to consider whether there was any public benefit to the suit, the nature of Stromberg’s interest in the released information, and whether the University had a reasonable basis in law for withholding the information.

In that regard, the University denied that there was any public benefit derived from Stromberg’s suit and maintained, conversely, that the action to obtain the redacted information was solely for Stromberg’s pecuniary benefit, in that it was then a participant in a multi-million dollar claim against the University. Finally, the University insisted that, although this Court required that the redacted information be supplied, the University had a reasonable basis in law for initially withholding it. After considering the evidence submitted in support of and in opposition to Stromberg’s motion and the arguments of the parties, the court denied the motion, concluding in a brief memorandum and order that, although Stromberg did substantially prevail in its action: “1. There is no benefit to the public apart from what the Plaintiff derived from this suit; 2.

The nature of the Complainant’s interest in the released information is private and pecuniary; and 3. The agency’s withholding of the information had a reasonable basis in the law.” The Court of Special Appeals, in Stromberg’s appeal from that decision, agreed with the Circuit Court’s findings and therefore affirmed. Stromberg v. Univ. of Maryland, 166 ¹²⁷ Md.App. 190, 887 A.2d 1085 (2005). The intermediate appellate court found that no evidence had been presented to the Circuit Court “to demonstrate that the disclosure of the cost of the subject project would generate considerable benefit to the public and outweigh appellant’s personal and commercial interest or the University’s reasonable basis for withholding the information.” Id. at 205, 887 A.2d at 1094 .

DISCUSSION Stromberg does not dispute that its eligibility for an award of counsel fees and costs proceeds solely from SG § 10-623(1), which provides: “If the court determines that the complainant has substantially prevailed, the court may assess against a defendant governmental unit reasonable counsel fees and other litigation costs that the complainant reasonably incurred.” That provision was not part of the original enactment of the PIA in 1970. The only sanction then provided was a $100 criminal fine imposable on “any person who willfully and knowingly” violated a provision of the statute. The availability of judicial review and other civil remedies, including the allowance of counsel fees and costs against the governmental entity (rather than against “any person”) came in 1978. What is now SG § 10-623(0 was obviously patterned after the analogous provision in FOIA, 5 U.S.C. § 552 (a)(4)(E), which Congress added to FOIA in 1974. 2 ¹²⁸ Both SG § 10-623 and 5 U.S.C. § 552 (a)(4)(E) require as a condition of eligibility for an award of fees and expenses that the complainant have “substantially prevailed” in its judicial action seeking the information and both make clear that, even if that condition is met, the making and amount of an award remains discretionary with the court.

As we observed in Kirwan v. The Diamondback, 352 Md. 74, 96 , 721 A.2d 196, 206-07 (1998), however, neither statute sets forth any particular criteria to guide the court in the exercise of its discretion. Following the analysis of the Court of Special Appeals in Kline v. Fuller, 64 Md.App. 375, 386 , 496 A.2d 325, 331 (1985), we concluded that a court must consider at least three factors: “(1) the benefit to the public, if any, derived from the suit; (2) the nature of the complainant’s interest in the released information; and (3) whether the agency’s withholding of the information had a reasonable basis in law.” Those factors emanated from the views expressed by Congress when it enacted § 552(a)(4)(E). A rather detailed account of the legislative history of that provision is set forth in Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C.Cir.1977) and Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977), and although we need not recount that history in full, some of it is particularly relevant.

Section 552(a)(4)(E) was the product of a compromise between S. 2543 and H.R. 12471. The Senate Bill actually contained those factors, although the second one identified in Kirwan was separated into two. 3 The Senate Judiciary Committee explained in its Report on the bill (Report No. 93-854, 93rd Congress, 2d Session, to accompany S. 2543, May 16, 1974) that: ¹²⁹ (1) Under the first criterion — public benefit — “a court would ordinarily award fees, for example, where a newsman was seeking information to be used in a publication or a public interest group was seeking information to further a project benefitting the general public, but it would not award fees if a business was using the FOIA to obtain data relating to a competitor or as a substitute for discovery in private litigation with the government.” Id. at 19. (2) Under the second criterion — commercial benefit to the complainant — a court would usually allow recovery where the complainant was indigent or a nonprofit public interest group but would not allow recovery “if it was a large corporate interest (or a representative of such an interest).” Id. (3) Under the third criterion — the nature of the complainant’s interest in the records — a court would generally award fees “if the complainant’s interest in the information sought was scholarly or journalistic or public-interest oriented, but would not do so if his interest was of a frivolous or purely commercial nature.” Id.

(4) Under the fourth criterion — reasonableness of the non-disclosure — “a court would not award fees where the government’s withholding had a colorable basis in law but would ordinarily award them if the withholding appeared to be merely to avoid embarrassment or to frustrate the requester.” Id. Summarizing the interplay of these criteria, the Senate Judiciary Committee cogently observed: “[Tjhere will seldom be an award of attorneys’ fees when the suit is to advance the private commercial interests of the complainant. In these cases there is usually no need to award attorneys’ fees