Maryland
Open Government Guide
CompareAuthor
Robin D. Leone, Esq.
SAUL EWING ARNSTEIN & LEHR LLP
500 East Pratt Street
Baltimore, Maryland 21202
(410) 332-8600
Last updated January 2023 (partial update - ad administrative appeal process)
CompareForeword
Open Records. In explaining the purpose and objectives of Maryland's Public Information Act ("PIA"), Md. Code Ann., Gen. Prov. §§ 4-101 to 4-601 (2017), Maryland's Attorney General, Joseph Curran, Jr., has stated that:
The public's right to information about government activities lies at the heart of a democratic government. Maryland's Public Information Act grants the people of this State a broad right of access to public records while protecting the legitimate interests of government and the privacy rights of individual citizens.
Douglas F. Gansler, Office of the Maryland Attorney General, Public Information Act Manual, (11th ed. 2008), Preface.
Prior to the enactment of the PIA, there were statutory provisions in place granting the public a right of inspection of certain public records. See, e.g., Pressman v. Elgin, 187 Md. 446, 50 A.2d 560 (1946) (the Maryland Motor Vehicle Act of 1943 provided that all records of the Department of Motor Vehicles, other than those declared by law to be confidential, were open to public inspection during office hours); Belt v. Prince George's Co., 73 Md. 289, 20 A. 982 (1890) (statutory provision required court clerks to provide copies of public records to any person upon application and payment of fees); but see Whittle v. Munshower, 221 Md. 258, 155 A.2d 670 (1959) (police reports of investigations not public records based on absence of statutory provision declaring same).
Absent statutory authority, however, Maryland law was unclear as to the precise nature and origin of any common law right of inspection of public records. An early case suggested that absent statutory authority, there was no common law right to inspect public records. Belt, 73 Md. at 290. However, in Pressman, the Maryland Court of Appeals suggested that a common law right to inspect public records might exist. 187 Md. at 451.
Whether based upon common law or statutory authority, the right to inspect public records prior to the PIA was limited to those persons who could show an actual or legal interest in the public record. Id. at 451-53; 43 Op. Att'y Gen. 113 (1956). This "actual or legal interest" requirement was based upon the necessity of obtaining a writ of mandamus if the right of inspection was denied. Id. at 450-53. A writ of mandamus would only issue upon a showing that the applicant for the writ had a clear legal right to inspect the record in question and that the defendant had an imperative duty to permit inspection. Id. at 452. Thus, as the court in Pressman explained, if a petitioner's purpose in desiring to see certain public records was merely to satisfy his curiosity, the writ would not be granted. Id. at 452; see also 43 Op. Att'y Gen. at 114 ("a person does not have the right to inspect judicial records to satisfy any whim or fancy").
One impetus for change in Maryland was the adoption of the federal Freedom of Information Act ("FOIA") enacted in 1966 by Pub. L. No. 89-487, 80 Stat. 250, and now codified at 5 U.S.C. § 552 (2016). See Faulk v. State's Attorney, 299 Md. 493, 506, 474 A.2d 880, 887 (1984). In addition to FOIA, the state statutes of Wyoming (Wyo. Stat. §§ 6-4-201 to -205) and Colorado (Colo. Rev. Stat. §§ 24-72-201 to 206) served as models for Maryland's PIA. See Bryan E. Frosh, Office of the Maryland Attorney General, Public Information Act Manual at 1-2 (14th ed. 2015) (hereinafter "PIA Manual, at ___."). Like other state public information laws, Maryland's PIA abrogates the actual or legal interest requirement under the common law and expands the range of public records available for public inspection. Id.
Maryland's PIA was passed in 1970. 1970 Md. Laws pp. 1970-75. As originally introduced in the Maryland House of Delegates, the PIA included a section specifically pertaining to news media. See Faulk, 299 Md. at 506, 474 A.2d at 887. This provision permitted a right of inspection to all news media if such right was allowed to any officer or employee of any newspaper, radio station, television station or other person or agency in the business of public dissemination of news or current events. Although the legislative history of the PIA fails to explain why, this media provision was deleted from the bill prior to passage of the PIA. Nonetheless, it seems clear that with or without the deletion, the media's right of inspection is assured. See Md. Code Ann., Gen. Prov. § 1-114 (defines "person" to include "an individual, receiver, trustee, guardian, personal representative, fiduciary, representative of any kind, corporation, partnership, business trust, statutory trust, limited liability company, firm, association or other nongovernmental entity").
Maryland's PIA is substantially similar in purpose to the FOIA. Both grant a broad right of access to public records and favor disclosure. See Faulk, 299 Md. at 506, 474 A.2d at 887. Federal case law interpreting the provisions of the FOIA provides persuasive authority in interpreting Maryland's PIA. Id.
The legislative intent behind the PIA is set forth in § 4-103, which 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." Moreover, to carry out the right of inspection provided under the PIA, § 4-103 also provides that the provisions of the PIA are to be construed in favor of permitting inspection, unless an unwarranted invasion of privacy of a person in interest would result, and with the least cost and least delay to the person requesting inspection. See A. S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 464 A.2d 1068 (1983) (PIA reflects "the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government").
Open Meetings. Originally enacted in 1977, Maryland's Open Meetings Act (the "Act") was substantially revised by the Maryland General Assembly in 1991. Act of May 24, 1991, Ch. 655 1991 Md. Laws 306 and re-codified in 2014. Act of Apr. 8, 2014, Ch. 94, 2014 Md. Laws 407 (codified at Md. Code Ann., Gen. Prov. §§ 3-101 to 3-501 (2017)). Pursuant to the 1991 amendments, the statute narrowed the exceptions that allow public bodies to close their meetings, and established the State Open Meetings Law Compliance Board ("OMCB") to consider complaints and recommend policies regarding the Act. In 2016, the Open Meetings Act was again amended to require that public bodies make available agendas prior to meetings; to retain minutes for five years; to post certain minutes online; Act of Apr. 26, 2016, Ch. 255, 2016 Md. Laws 4894; Act of May 10, 2016, Ch. 329, 2016 Md. Law 5335; Act of May 10, 2016, Ch. 330, 2016 Md. Laws 5337. Most recently, in 2017, the Act was amended to revise certain of the duties of the OMCB, including with respect to educational information and programs; annual reporting; posting of information online; and training. Act of May 4, 2017, Ch. 525, 2017 Md. Laws 3110.
The General Assembly's intent in promulgating the Act is demonstrated by the statement of legislative policy:
It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances: (1) public business be conducted openly and publicly; and (2) the public be allowed to observe: (i) the performance of public officials; and (ii) the deliberations and decisions that the making of public policy involves.
§ 3-102(a).
The expressions of policy state, first, that the ability of the media and general public to observe open meetings "ensures the accountability of [the] government . . ., increases the faith of the public in government and enhances the effectiveness of the public in fulfilling its role in a democratic society." § 3-102(b). Second, § 3-102(c) expressly provides that, "[e]xcept in special and appropriate circumstances when meetings . . . may be closed under this title, it is the public policy of the State that the public be provided with adequate notice of the time and location of meetings of public bodies . . ." § 3-102(c); CLUB v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804, 810 (2003).
These statements are consistent with the Maryland Court of Appeals' earlier statements concerning the purpose of the Act, in which the Court quoted the following language of the Florida Supreme Court:
One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance . . . . The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages . . . .
City of New Carrollton v. Rogers, 287 Md. 56, 72, 410 A.2d 1070, 1079 (1980) (quoting Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)). The Maryland Court of Appeals recently reaffirmed the purpose of the Act by explaining, "The clear policy of the Open Meetings Act is to allow the general public to view the entire deliberative process." Community and Labor United for Baltimore Charter Committee (CLUB) v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804, 810 (2003). Indeed, the Maryland General Assembly expressly decreed that any exceptions that permit closed deliberations should "be strictly construed in favor of open meetings. . . ." § 3-305.
Finally, the General Assembly created a new body to hear complaints, issue advisory opinions, and recommend new policies for the implementation of the Act. Known as the State Open Meetings Law Compliance Board (the "Board"), it consists of three members (one of whom must be an attorney) appointed by the Governor with the advice and consent of the State Senate. §§ 3-201 to 3-213. Its role is to educate public bodies about their duties under the Act, to provide a non-judicial forum for resolving disputes about the Act's application, and to offer recommendations to the General Assembly about amending the Act. Bryan E. Frosh, Office of the Attorney General, Open Meetings Act Manual at 7-1 (9th Ed. Dec. 2016) (hereinafter "OMA Manual, at ___."); See also § 3-204.
CompareOpen Records
CompareI. Statute
CompareA. Who can request records?
The Maryland Public Information Act ("PIA" or the "Act"), codified in the General Provisions Article of the Maryland Code Annotated (the "Code") entitles "all persons . . . to have access to information about the affairs of government and the official acts of public officials and employees." Md. Code Ann., Gen. Prov. § 4-103(a). The term "person" is defined in § 1-114 of the Article to mean "an individual, receiver, trustee, guardian, personal representative, fiduciary, representative of any kind, corporation, partnership, business trust, statutory trust, limited liability corporation, firm, association, or other nongovernmental entity." See also ACLU v. Leopold, 223 Md. App. 97, 121 (2015) (determining that a county was an entity within the definition of "person"). Governmental units are also specifically given the right to inspect public records. See §§ 10-611(b), 614(a).
In general, there is no need for the person to show that he or she is aggrieved or a person in interest in order to exercise the right of inspection of most records. PIA Manual, at 2-1. There are, however, restrictions on who is entitled to inspect certain types of records. For example, retirement records may only be inspected by "the person in interest," or "the appointing authority of the individual"; after the individual's death, the records may be inspected only "by a beneficiary, personal representative, or any other person who satisfies the administrators of the retirement and pension systems that the person has a valid claim to the benefits of the individual"; by law enforcement agencies for specified purposes; and for retirement records for current or former employees of a county, by employees of that county when an audit of the records is required by county law. § 4-313(b). Similarly, personnel records and student records may only be inspected by the person in interest, or by an appointed or elected official who is that person's supervisor. §§ 4-311(b), 4-313(b). See also § 4-329(c) (person in interest entitled to inspect public record of person's medical and psychological information); § 4-336(c) (financial information may only be inspected by person in interest).
If a "person in interest" has a legal disability, then that individual's parent or legal representative may act on the individual's behalf as a "person in interest." See PIA Manual, at 2-2 (citing § 4-101(g)(2)). However, a parent whose parental rights have been terminated with respect to a child may not act as "person in interest on the child's behalf." PIA Manual, at 2-2 (citing 90 Opinions of the Attorney General 45, 58-59 (2005)).
Compare1. Status of requester
There are no citizenship restrictions.
Compare2. Purpose of request
The purpose of the request is not a factor. Unlike the common law, the PIA does not restrict an applicant's general right of access to public records based upon the purpose for which a request is made. See Superintendent v. Henschen, 279 Md. 468, 473, 369 A.2d 588, 561 (1977).
Compare3. Use of records
A person's subsequent use of the information provided may be restricted. See, e.g., § 4-308(b) (circulation records of public libraries may only be inspected if in connection with the library's ordinary business and only for the purposes for which the record was created); § 4-312(b)(2) (permitting county auditors access to retirement records of former or current employees, but prohibiting disclosure of any information that would identify a person in interest); and § 4-315(b) (disclosed criminal records and reports may not be used to solicit or market legal services).
Compare4. Can an individual request records on behalf of a third party or organization?
CompareB. Whose records are and are not subject to the Act
As a general rule, the records of all units or instrumentalities of State government or of a political subdivision of the State concerning the affairs of government and the official acts of public officials and employees are subject to the PIA. See §§ 4-101(i), (j); see also PIA Manual, at 2. ("The PIA covers virtually all public agencies or officials in the State"). At the local level, § 4-101 defines "political subdivision" to include counties, cities, towns, school districts or any special district. Thus, for example, the Memorial Hospital of Cumberland is covered by the PIA as an agent of the City of Cumberland, Maryland. See Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975).
Compare1. Executive branch
The PIA applies. The records of all units or instrumentalities of State government or of a political subdivision of the State concerning the affairs of government and the official acts of public officials and employees are subject to the PIA. See §§ 4-101(i), (j); see also Napata v. Univ. of Md. Med. Sys. Corp., 417 Md. 724 (2011) (concluding that UMMS was not subject to the PIA because the language of the enabling statute provides that the entitiy is not subject to provisions of law "affecting only governmental or public entities"). All documentary material or records created or received by a unit or instrumentality in connection with the transaction of the public business is subject to disclosure. No provision is made to exempt certain functions of the State from disclosure requirements. § 4-101(j)(1). Records of executives themselves are also subject to disclosure under the PIA. See Office of Governor v. Washington Post Co, 360 Md. 520, 534-35, 759 A.2d 249 (2000).
Compare2. Legislative bodies
The PIA applies. The records of all units or instrumentalities of State government or of a political subdivision of the State concerning the affairs of government and the official acts of public officials and employees are subject to the PIA. See §§ 4-101(i), (j). The public record statute pertains whether the document was made or merely received by the instrumentality. § 4-101(i)(1)(i).
Compare3. Courts
The PIA applies. See §§ 4-101(j). In addition, the Maryland Court of Appeals has reaffirmed the common law right to inspect and copy judicial records and documents. The Baltimore Sun v. Mayor & City Council of Baltimore, 359 Md. 653, 755 A.2d 1130 (2000). This right precludes a court from sealing court records pursuant to a confidentiality agreement among the parties, absent an express statutory provision or rule promulgated by the Court of Appeals authorizing such closure. Id.
Compare4. Nongovernmental bodies
The PIA generally applies. For bodies receiving public funds or benefits, the PIA only applies if the body receives sufficient public funds to be deemed an "agent" of the State. See, e.g. Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975). In addition, a non-governmental body created by statute, but that receives no public funds, may be subject to the PIA if: (1) the body serves a public purpose, (2) the government exercises a certain degree of control over it; and (3) it is immune from tort liability. A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 464 A.2d 1068 (1983) (holding that the Maryland Insurance Guaranty Association, a public entity created by statute but receiving no public funds, is subject to the PIA). Whether members of a nongovernmental body are governmental officials is a factor used to determine applicability of the PIA to a particular body. See, e.g., City of Baltimore Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 910 A.2d 406 (2006).
5. Multi-state or regional bodies
Even where an interstate agency is considered an agency of the state, absent some agreement between the states to an interstate compact, interstate bodies are not subject to the PIA. C.T. Hellmuth v. Washington Metro Area Trans. Auth., 414 F. Supp. 408, 409 (D. Md. 1976). In C.T. Hellmuth, the Maryland federal district court addressed the issue of whether the Washington Metro Area Transit Authority (the "WMATA") was subject to the PIA. Even though the compact creating WMATA expressly stated that WMATA was an agency or instrumentality of each state party to the compact, the court held that WMATA was not subject to the PIA because there was no agreement by the parties to the compact subjecting WMATA to its provisions. In so holding, the court rejected the plaintiff's contentions that a tacit agreement existed between the states because of the similarity between their public information laws and that this similarity eliminated the possible imposition of one state's interests upon another. The court rejected both contentions in light of the "not insignificant" differences in the states' laws. The court left open the question of whether an interstate body would be subject to the laws of one state where the laws were substantially similar or identical.
Compare6. Advisory boards and commissions, quasi-governmental entities
The PIA generally applies. See, e.g., Andy's Ice Cream, Inc. v. City of Salisbury, 125 Md. App. 125, 724 A.2d 717 (1999) (finding Salisbury Zoo Commission subject to the PIA).
Compare7. Others
There is no statutory or case law addressing additional entities beyond those already enumerated.
CompareC. What records are and are not subject to the act?
Compare1. What kinds of records are covered?
Except as otherwise provided, the PIA requires a custodian to "permit a person or governmental unit to inspect any public record at any reasonable time." § 4-201(a)(1). Hammen v. Baltimore County Police Department, 373 Md. 440, 455, 818 A.2d 1125, 1134 (2003); Police Patrol Security Systems Inc., v. Prince George's County, 378 Md. 702, 714 838 A.2d 1191, 1198 (2003). A public record is defined as "the original or any copy of any documentary material that (i) is made by the unit or instrumentality of the State or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business; and (ii) is in any form …" § 4-101(j). The Maryland Court of Appeals has recognized this definition of "public record" to be a broad one. Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 279, 805 A.2d 268, 272 (2002). A public record is defined to include "a document that lists the salary of an employee of a unit or instrumentality of the state government or of a political subdivision." § 10-611(g)(2); Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975), University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 100, 847 A.2d 427, 439 (2004) (finding that an employment contract of a public employee evidencing how a publicly funded salary is earned qualified as a public record). In addition, a database set up by a private vendor for use by a public agency for risk management purposes is a "public record." Prince George's County v. The Washington Post Co., 149 Md. App. 289, 335, 815 A.2d 859 (2003); see also PIA Manual, at 1-5.
In determining whether documents are public records, the following criteria are considered: whether the documents were generated within the agency; whether the documents are contained in agency files; whether the documents are under the agency's control; and whether the documents are used for an agency purpose. Bureau of Nat'l Affairs Inc. v. United States Dept. of Justice, 742 F.2d 1484 (D.C. Cir. 1984) (agency employee's telephone message slips and appointment calendar were not agency records under FOIA); but see Office of the Governor v. Washington Post Co., 360 Md. 520, 759 A.2d 249 (2000) (noting that meaning of "agency records" under FOIA is not applicable under the PIA).
A public record is not subject to the PIA if it is: privileged or confidential by law; otherwise prohibited from disclosure by state or federal law, court rule or order; or exempted from disclosure by the PIA. § 4-301(a), 4-304 to 4-327; see also § 4-328 to 4-340 for types of information exempted from disclosure under the PIA.
Federal case law interpreting the FOIA provides persuasive authority in interpreting Maryland's PIA. Faulk v. State's Attorney, 299 Md. 493, 506, 474 A.2d 880, 887 (1984). Thus, it should be noted that under the FOIA, the mere physical location of papers does not confer public record status. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (Henry Kissinger's notes of telephone conversations made in the Office of the President did not constitute agency records under the FOIA simply because he brought them with him to the state Department); see also 80 Op. Att'y Gen. 311, 312 (1995) (records that are not in the possession of the agency, but that may be required to be maintained by the agency, are not public records). Nor does the PIA create an obligation for an agency to create records to satisfy a PIA request, or to reprogram its computers or aggregate computerized data files so as to effectively create new records.
Compare2. What physical form of records are covered
The original or any copy of a public record in any form is covered, including a card, computerized record, correspondence, drawing, film or microfilm, form, map, photograph, photostat, recording, or tape. § 4-101(j)(1)(ii); see also 81 Op. Att'y Gen. 117, 120 (1996) (printed and electronically stored versions of e-mail messages are public records if the message is related to the conduct of public business); 71 Op. Att'y Gen. 288 (1986) (tape recordings of 911 Emergency Telephone System calls are public records, except for those portions exempted from disclosure). Private documents that an agency has read and incorporated into its files are also public records. Artesian Ind. v. Dep't of Health and Human Svcs., 646 F. Supp. 1004, 1007 n.6 (D.D.C. 1986) (construing the FOIA to include such records)). Public records do not however, "include a digital photographic image or signature of an individual, or the actual stored date thereof, recorded by the Motor Vehicle Administration. § 10-611(g)(3).
Compare3. Are certain records available for inspection but not copying?
An applicant who has a right to inspect a public record typically has a right to a copy of that record. §§ 4-201(a)(2), 4-205(b)(1). Should the custodian not have facilities to reproduce the requested record, then the applicant is to be afforded access to the record to make the copy him or herself. § 4-205(b)(2).
The PIA does not address the format in which the copies are provided. Similarly, the courts have not determined whether a requester’s right to copies extends to the right to choose the format of the copies. The Office of the Attorney General currently advocates for agencies to “voluntarily accede to the requester’s choice of format” unless the cost is significant or the request imposes some other burden on the agency. PIA Manual, at 6-1. The official custodian of the public record is required to adopt reasonable rules and regulations governing the time, place, manner, and cost of production and inspection. § 4-201(b); see, e.g., Model Rules on Public Information Act (the "PIA Model Rules"), PIA Manual, at App. F.
Compare4. Telephone call logs
Although not discussed in the PIA, in at least one case, records of telephone calls made from Government House, the official residence of the Governor in Annapolis, were determined not to be public records under the PIA. Office of the Governor v. Washington Post Co., 360 Md. 520, 536 (2000).
Compare5. Electronic records (e.g., databases, metadata)
Comparea. Can the requester choose a format for receiving records?
An applicant can request a copy of a public record in searchable and analyzable electronic format. § 4-205(c)(1). If the requested record is in the requested format, and the custodian can provide a copy in that format without disclosing confidential or protected information required to be denied or that can be denied at the custodian’s discretion, the applicant shall be provided with a searchable and analyzable copy. Id. However, a custodian is not required to create electronic versions of existing public records or new public records, not allowed to limit copies of public records only to electronic versions, and not permitted to release an electronic record in a format that would “jeopardize or compromise the security or integrity of the original record or of any proprietary software.” § 4-205(c)(4).
Compareb. Can the requester obtain a customized search of computer databases to fit particular needs
The PIA does not create an obligation for an agency to create records to satisfy a PIA request. § 4-205(c)(4)(iii). However, if an agency has staff who routinely perform the type of data extraction requested and does not have to resort to expertise outside its staff’s capabilities, then it would be obligated to perform the search. Comptroller of the Treasury v. Immanuel, 216 Md. App. 259, 271 (2014); see also PIA Manual, at 2-3.
Comparec. Does the existence of information in electronic format affect its openness?
Not as a legal matter, but as a practicable matter, the electronic imaging of many documents by state agencies and the requirement by agencies that such documents be electronically formatted has enhanced significantly the ease with which public records are accessed. Images of many records are now available over the Internet by accessing the agency's Web site. As a matter of law, however, the original or any copy of a public record in any form is covered by the PIA, including a computerized record. § 4-101(j); see also 81 Op. Att’y Gen. 140 (1996) (printed and electronically stored versions of e-mail messages are public records). However, information concerning the security of an information system is exempt from disclosure. § 4-338. On October 24, 1983, the Governor issued Executive Order 01.01.1983.18 establishing a State Data Security Committee regarding security measures for the protection of state agencies maintaining computerized record systems. Code of Maryland Regulations (“COMAR”), 01.01.1983.18 (1983).
Compared. Online dissemination
There is no statutory or case law addressing this issue; some agencies do provide access to certain records via the applicable agency's public website.
Compare6. Email
Compare7. Text messages and other electronic messages
Compare8. Social media posts
Compare9. Computer software
A custodian is not permitted to release an electronic record in a format that would “jeopardize or compromise the security or integrity of the original record or of any proprietary software.” § 4-205(c)(4).
Compare10. Can a requester ask for the creation or compilation of a new record?
CompareD. Fee provisions
Compare1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees
An official custodian is permitted to charge an applicant a reasonable fee to search for, prepare and reproduce a public record in a customized format. § 4-206(b)(1)(i). For records produced in standard format, an official custodian may charge a reasonable fee for the actual costs of the search, preparation, and production. § 4-206(b)(1)(ii). An official custodian may not, however, charge a fee for the first two hours spent searching for a public record and preparing it for inspection. § 4-206(c). A reproduction fee may not be set by the custodian if the fee is provided for by another law. § 4-206(d)(1). The custodian may charge for the cost of providing facilities for reproduction if the custodian does not have such facilities. § 4-206(d)(2).
Compare2. Particular fee specifications or provisions
The PIA Manual defines "search fees" as the "costs to an agency for locating requested records." PIA Manual, at 7-1. "Preparation fees are the costs to an agency to prepare a record for inspection or copying, including the time needed to assess whether any provision of law permits or requires material to be withheld." Id. An official custodian may not charge a fee for the first two hours spent searching for a public record and preparing it for inspection. § 4-206(c). In addition, various state and local agencies have adopted standard fee schedules. See PIA Manual, at 7-2.
A reproduction fee may not be set by the custodian if the fee is provided for by another law. § 4-206(d)(1). The custodian may charge for the cost of providing facilities for reproduction if the custodian does not have such facilities. § 4-206(d)(2). In addition, various state and local agencies have adopted standard fee schedules. See PIA Manual, at 12.
Compare3. Provisions for fee waivers
Section 4-206(e) permits the official custodian to waive fees or costs upon request, if the applicant is indigent and files an affidavit of indigency. Alternatively, the official custodian may waive the fee if the applicant requests a waiver and, after considering the ability of the applicant to pay the fee and other relevant factors, the official custodian determines that a waiver is in the public interest. Id. The Maryland Court of Special Appeals has delineated the following factors to be considered by an official custodian regarding a request for a fee waiver: (1) the public benefit in making available certain information (for example, the public would benefit if information concerning one of the city's major financial undertakings or information concerning potential health risks were made available); and (2) the chilling effect of the fee requirement on the requester's First Amendment rights. Mayor of Baltimore v. Burke, 67 Md. App. 147, 506 A.2d 683 (1985), cert. denied, 300 Md. 118, 507 A.2d 631 (1986). See also 81 Op. Att'y Gen. 25, 27-28 (1996) (fee waiver dependent upon number of factors and not exclusively upon the poverty of the requester or cost to the agency).
Compare4. Requirements or prohibitions regarding advance payment
The PIA does not address the agency's ability to demand or require prepayment of fees. However, several agency regulations do so. See PIA Manual, at 7-2 (citing the Code of Maryland Regulations ("COMAR") 08.01.06.11D(2) (Department of Natural Resources); and COMAR 09.01.04.14D (Department of Licensing and Regulation)).
Compare5. Have agencies imposed prohibitive fees to discourage requesters?
There is no indication that Maryland agencies impose prohibitive fees. There is no statutory or case law addressing how fees for electronic records are issued.
Compare6. Fees for electronic records
CompareE. Who enforces the Act?
Section 4-362(a) authorizes any person or governmental unit that has been denied inspection of a public record to file a complaint in the circuit court for the county where the complainant resides or has a principal place of business, or where the public record is located. The circuit court may enjoin the State, a political subdivision, or a unit, an official, or an employee of the State or a political subdivision from withholding the public record or a copy, printout or photograph of the record; order the production of the withheld record or copy, printout or photograph, and award actual damages including attorneys' fees to the complainant if the Court finds that the complainant substantially prevailed in the suit seeking enforcement of the Act. § 4-362(c), (f); but see ACLU v. Leopold, 223 Md. App. 97, 123 (2015) ("actual damages" under the statute does not include emotional damages).
Compare1. Attorney General's role
The Attorney General frequently opines as to the applicability of the PIA, and issues guidelines to Maryland's state agencies. See generally PIA Manual.
Compare2. Availability of an ombudsman
Maryland has established an Office of the Public Access Ombudsman, with its office space and staff provided by the Office of the Attorney General. § 4-1B-02. The Attorney General appoints the Ombudsman, who must be admitted to practice law in Maryland. § 4-1B-03(b). The term of office is generally 4 years. § 4-1B-03(d). The Ombudsman, who is a full-time State employee, makes reasonable attempts to resolve disputes between applicants and custodians relating to requests for public records, including disputes over applications of an exemption; redactions of information in the public record; failures to produce a public record in a timely manner or to disclose all records relevant to the request; overly broad requests for public records; the amount of time a custodian needs, given available staff and resources, to produce public records; a request for or denial of a fee waiver; and repetitive or redundant requests from an applicant. § 4-1B-04(a). In fulfilling these duties, the Ombudsman may not compel disclosure of public records or redacted information, except to a designated Assistant Attorney General; or disclose information received from either a custodian or an applicant without written consent from the custodian or applicant. § 4-1B-04(b).
Compare3. Commission or agency enforcement
Maryland has established a State Public Information Act Compliance Board for the purpose of resolving unreasonable fee complaints; studying ongoing compliance by custodians; and making recommendations for improvement to the General Assembly. § 4-1A-04(a), (b). Annually, the Board submits a report to the Governor describing its activities and opinions, complaints filed, and recommendations for improvement. § 4-1A-04(c). The Board consists of 5 members, one of whom is from a Maryland non-governmental, non-profit organization that works on issues related to transparency or open government and is nominated by representatives of the open government and news media communities. § 4-1A-02(a)(2)(i). Another member of the Board must be knowledgeable about the Public Information Act, have served as a custodian, and been nominated by the Maryland Association of Counties and the Maryland Municipal League. § 4-1A-02(a)(2)(ii). The other 3 members are private citizens who cannot be a custodian of a public record, a member of the news media, or a staff member or spokesperson for an organization that represents the interests of either custodians or applicants. § 4-1A-02(a)(2)(iii). At least one of the 5 members must be an attorney admitted in the State. § 4-1A-02(a)(3). The term for members of the Board is generally 3 years. § 4-1A-02(c).
CompareF. Are there sanctions for noncompliance?
Yes. The circuit court may enjoin the State, a political subdivision, or a unit, an official, or an employee of the State or og a political subdivision from withholding the public record or a copy, printout or photograph of the record; order the production of the withheld record or copy, printout or photograp;h, and award actual damages including attorneys' fees to the complainant if the Court finds that the complainant substantially prevailed in the suit seeking enforcement of the Act. § 4-362(c), (f); but see ACLU v. Leopold, 223 Md. App. 97, 123 (2015) ("actual damages" under the statute does not include emotional damages). In addition, a person, including an officer or employee of a governmental unit, is liable to an individual for actual damages that the court considers appropriate if the court finds by clear and convincing evidence that the person willfully and knowingly (1) allows inspection of a public record that names or identifies the individual (e.g., by address, description, fingerprint, picture) or (2) obtains, discloses or uses personal information. § 4-401(a). Further, a person is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $ 1,000 if he/she/they willfully or knowingly violates any provision of the Act, fails to petition a court after a temporary denial, or by false pretenses, bribery, or theft, accesses a personal record, the disclosure of which is prohibited. § 4-402(a)-(b); see also § 4-362(d). Custodians found to have acted arbitrarily or capriciously in withholding a public record may be subject to disciplinary action. § 4-362(e). And custodians who fail to comply with a court order for production of a public record may be punished for contempt. § 4-362(e).
CompareG. Record-holder obligations
Compare1. Search obligations
Compare2. Proactive disclosure requirements
There are no specific categories of information a particular agency is required to make available proactively. However, agency custodians must designate and maintain a list of the types of public records that are to be made available immediately upon request. § 4-201(c). Any governmental unit that maintains public records must designate a representative to handle requests for public records. § 4-503(a)(1). Contact information for the representative must be maintained and posted on the governmental unit’s website, if applicable. § 4-503(a)(2)-(3). The Office of the Attorney General must also post the contact information for each governmental unit’s public records representative on its website and in the PIA Manual. § 4-503(b).
Compare3. Records retention requirements
Section 10-610 of the State Government Article and COMAR 14.18.02 requires every State, county and local government agency to develop a program for efficient records management. Each agency must establish and regularly revise its records retention and disposition schedules. Id. Records retention schedules for each level of government are available on the Maryland State Archives website: http://msa.maryland.gov/msa/intromsa/html/record_mgmt/toc.html.
The willful, unauthorized destruction or alienation of any public record is a misdemeanor subject to criminal penalties. Md. Code Ann., Crim. Law Art. § 8-606(b)(2). The State Archivist must authorize the disposition of any public record, with such authorization obtained by first filing a records retention and disposition schedule. See Md. Code Ann., State Gov’t Art. § 10-616(c).
Compare4. Provisions for broad, vague, or burdensome requests
CompareII. Exemptions and other legal limitations
CompareA. Exemptions in the open records statute
Compare1. Character of exemptions
There are four categories of exemptions to disclosure under the PIA. The first exempts a public record or any part of a public record that is privileged or confidential under law or if inspection of the public record or any part of the public record would be contrary to a state or federal statute or contrary to a regulation issued pursuant to the statute, a rule adopted by the Maryland Court of Appeals, or an order issued by a court of record. § 4-301. Police Patrol Security Systems Inc. v. Prince George's County, 378 Md. 702, 714, 838 A.2d 1191, 1198 (2003). The second category provides for mandatory exemption of specific records or specific information contained in a public record. § 4-304 et seq. (specific records), § 4-328 et seq. (specific information). The third involves discretionary exemptions for certain parts of records based upon the public interest. § 4-343 et seq. University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 94, 847 A.2d 427, 436 (2004). The fourth authorizes a limited discretionary exemption for records otherwise subject to disclosure if temporary nondisclosure is in the public interest. § 4-358.
The exemptions provided in § 4-304 et seq. and § 4-328 et seq. do not control if disclosure of the record would be either contrary to or compelled by another statute. Conversely, even if the PIA permits access, disclosure may still be denied based on other law. § 4-304, § 4-328; See, e.g., PIA Manual, at 3-8 (and statutes cited therein).
The proscriptions against disclosure of records and information identified in §§ 4-304 et seq. and 4-328 et seq. are mandatory. The proscriptions contained in §§ 4-343 and 4-358 are discretionary. The Maryland Court of Appeals has addressed the interplay between the PIA's mandatory and discretionary provisions. Attorney Gen'l v. Gallagher, 359 Md. 341, 753 A.2d 1036 (2000). In Gallagher, the court rejected Gallagher's argument that his status as the party in interest allowed him to compel disclosure of records under § 4-343 that were otherwise subject to the mandatory nondisclosure provisions. 359 Md. at 355, 753 A.2d at 1044. Instead, the court held, if any exemption under the mandatory provisions is applicable to a particular record, then it must be withheld. Id. See also Comptroller of the Treasury v. Immanuel, 216 Md. App. 259, 273 (2014) (where another source of law allows for access, the exception set forth in the PIA will not control).
While the impetus for change from the traditional uncertainty of common law rules governing disclosure to the adoption of the PIA was the adoption of the federal Freedom of Information Act, the PIA is patterned after the state statutes of Wyoming and Colorado. See PIA Manual, at 1-2.
Compare2. Discussion of each exemption
(1). Mandatory exemption of specific records — § 4-304 et seq.
Adoption records — Public records that relate to the adoption of an individual are exempt from disclosure. § 4-305. PIA Manual, at 3-8 (citing 89 Opinions of the Attorney General 31, 43 & n.7 (2004)).
Welfare records — Public records that relate to welfare for an individual are exempt from disclosure. § 4-307; see also 71 Opp. Att'y Gen. 368 (1986) (under certain circumstances, information regarding child abuse cases handled by the Department of Social Services may be disclosed). PIA Manual, at 3-8 (citing 89 Opinions of the Attorney General 31, 43 & n.7 (2004)).
Personnel records — A custodian shall deny inspection of a personnel record of an individual, including an application, a performance rating, or scholastic achievement information. § 4-311(a). Inspection by the person in interest or the elected or appointed official who supervises the work of the individual is permitted. § 4-311(b).
Letters of reference — All solicited or unsolicited letters concerning a person's fitness for public office or employment are exempt from disclosure. § 4-310; 68 Op. Att'y Gen. 335 (1983).
Circulation records — A custodian shall prohibit inspection, use, or disclosure of a circulation record of a public library or other item, collection, or grouping of information about an individual that is maintained by a library and that contains an individual's name or the identifying number, symbol, or other identifying particular assigned to the individual, and identifies the use a patron makes of that library's materials, services or facilities. § 4-308.
Gifts — Records concerning material given to a library, archive or museum are exempt, if the person making the gift limits disclosure as a condition of the gift. § 4-309.
Retirement records — Individual retirement records are generally exempt from disclosure. § 4-312. This exemption does not apply if the records are requested by: (a) the person in interest; (b) the appointing authority of the individual; (c) a beneficiary, personal representative, or other person who has a valid claim to the individual's benefits after the individual has died; or (d) any law enforcement agency for the purpose of obtaining the home address of a retired employee, provided the contact is documented as necessary for official agency business. See § 4-312(b). The exemption also does not apply to county employees obtaining such records for audit purposes. §4-312(b)(1)(v). However, those employees are prohibited from disclosing information that would reveal the identity of a person in interest. §4-312(b)(2). On request, a custodian of records shall state whether an individual receives a retirement or pension allowance. § 4-312(d).
Student records — A custodian shall deny inspection of a school district record about the home address, home telephone number, biography, family, physiology, religion, academic achievement, or physical or mental ability of a student. § 4-313(a). Inspection by the person in interest or an elected or appointed official who supervises the student is permitted. § 4-313(b).
Hospital records — A hospital record that relates to medical administration, staff, medical care, or other medical information and contains information about one or more individuals is exempt from disclosure. § 4-306. The Legislative Auditor may have access to the records of the Department of Health and Mental Hygiene for the performance of his/her duties. 63 Op. Att'y Gen. 453 (1978).
Risk Based Capital Reports or Plans — Subject to Section 4-310 of Maryland Code Ann., Insurance Article, all RBC reports, RBC plans, and all records that relate to those reports or plans are exempt from disclosure. § 4-323.
Maryland Transportation Authority ("MTA") records — Photographs, videotapes or electronically recorded images of vehicles, vehicle movement records, personal financial information, credit reports or other personal or financial data created, recorded, obtained by or submitted to the MTA in connection with any electronic toll collection system are exempt from disclosure. § 4-319(a). However, the individual named in the record, the individual's attorney of record, MTA employees or agents who are investigating or proceeding against an individual for failure to pay a toll, employees or agents of third parties that have entered into agreements with the MTA to use the toll collection system for non-toll applications in the collection of revenues due to the third party, and employees or agents of an entity in another state operating or having jurisdiction over a toll facility may obtain the records. § 4-319 (b).
Higher education investment contracts — Records disclosing the name of an account holder or qualified beneficiary of a higher education contract under Title 18, Subtitles 19 and 19A of the Annotated Code of Maryland Education Article are generally exempt from disclosure. § 4-314(a). Such records must be made available for inspection by persons in interest and may be released to eligible institutions of higher education designated by an account holder or qualified beneficiary under Subtitles 19 or 19A. § 4-314.
Traffic-related reports — Inspection of police reports of traffic accidents, criminal charging documents before service on the defendant, and traffic citations filed in the Automated Traffic System by persons who request records for the purpose of soliciting or marketing legal services, such as an attorney who is not an attorney of record or a person employed or retained by, associated with, or acting on the behalf of such an attorney is prohibited. § 4-315.
Arrest warrants and charging documents — Arrest warrants and charging documents cannot be made available for inspection until the arrest warrant has been served and the return of service has been filed or 90 days have elapsed since issuance of the warrant. § 4-316(a). Court files and records pertaining to an arrest warrant or charging document associated with a grand jury indictment or conspiracy investigation cannot be made available for inspection until after all arrest warrants for co-conspirators have been served and all returns of service have been filed. § 4-316(b). Information in arrest warrants, including the name, address, birth date, driver’s license number, sex, height, and weight, may be released to the MVA in accordance with certain provisions of the Transportation Article. § 4-316(d). These provisions do not preclude release of statistical information concerning unserved warrants or of information concerning an unserved arrest warrant and the associated charging document; inspection of court files and records regarding an unserved arrest warrant and associated charging document by a judicial officer, authorized court personnel, a State's Attorney, a peace officer, a correctional officer authorized to serve the warrant, a bail bondsman or other surety who executed a bond for the individual subject to arrest under the warrant, an attorney authorized by the individual subject to arrest, the Department of Juvenile Services, or a criminal justice agency; or release of information to notify a victim. § 4-316(e).
Recorded images from traffic control signal monitoring systems — Images are exempt from disclosure, except as required in §§ 21-202.1, 21-809, 21-810, or 24-111.3 of the Transportation Article of the Maryland Code Annotated, to any person issued a citation under such provisions or the attorney or record for that person, or to any employee or agent of an agency in an investigation or a proceeding related to the imposition of or indemnification from civil liability under those same provisions. § 4-321.
Surveillance images — A custodian shall deny inspection of surveillance images, as that term is defined in the Criminal Law Article of the Maryland Code at Section 10-112. § 4-322(b). Inspection by the person issued a citation or that person’s attorney, an employee or agent of the Baltimore City Department of Public Works in an investigation relating to civil liability under Section 10-112 of the Criminal Law Article, or as required under that same section is permitted. § 4-322(c).
MVA records containing personal information — Records may not be knowingly disclosed, except with the person's written consent, or for use by a federal, state, or local government, or for specifically delineated uses. § 4-320(f)(1)-(2). Licensed private detective agencies may obtain information pursuant to § 4-320(f)(3). The custodian is required to disclose personal information, inter alia, for use in connection with a civil, administrative or criminal proceeding; in connection with the execution or enforcement of judgment or orders; for the purposes of research or statistical reporting; for use by an insurer in connection with rating, underwriting, investigating and antifraud activities; for use in the normal course of business by a legitimate business entity to verify accuracy of personal information submitted by the person to the entity; and if the information submitted is inaccurate to obtain correct information. § 4-320(f).
The Attorney General has opined that "a driver whose fitness to drive is under review because of the driver's health condition is generally entitled to inspect the MVA's records pertaining to that review" under Section 16-118(d) of the Transportation Article of the Maryland Code. 82 Op. Att'y Gen. 49, 51, (1997). Because the driver is a person in interest and entitled to a hearing on the issue, the driver may also inspect the MVA Medical Advisory Board's files about that individual. Id.; contra Md. Code Ann., Transp. § 16-118(d)(1)(i) (declaring Medical Advisory Board records confidential without exception). The driver may not inspect the letter that initiated the MVA's review if the letter would reveal the identity of a confidential source. 82 Op. Att'y Gen 49, 51 (1997); see also § 4-351(b)(4).
Maryland Transit Administration records — Records of persons created, generated, obtained by, or submitted to the Maryland Transit Administration, its agents, or employees in connection with the use or purchase of electronic fare media provided by the Maryland Transit Administration, its agents, employees or contractors, shall not be disclosed. However, these records may be disclosed to an individual named in the record or the attorney of record of an individual named in the record. § 4-318.
Department of Natural Resources' records containing personal information — Public records of the Department of Natural Resources containing personal information may not be disclosed. However, the personal information may be disclosed for use in the normal course of business activity by a financial institution as defined in § 1-101(i) of the Financial Institutions Article, but only to verify the accuracy of personal information submitted by the individual to that financial institution, and to correct inaccurate information for the purpose of preventing fraud by the individual, pursuing legal remedies against the individual, or recovering a debt or security interest against the individual. § 4-317.
Applications for Renewal Energy Credit Certification or a Claim for Renewable Energy Credits - An application for renewable energy credit certification or a claim for renewable energy credits under Title 10, Subtitle 15 of the Agricultural Article shall not be disclosed. § 4-324.
Firearm and handgun records — A custodian shall deny inspection of records of a person authorized to sell, purchase, rent or transfer regulated firearms or to carry, wear, or transport a handgun. § 4-325(a). Inspection by the individual named in the record or that individual’s attorney is permitted. § 4-325(b). The Departments of State Police and Public Safety and Correctional Services are also permitted to access firearm or gun records in the performance of official duties. § 4-325(c).
License plate data — A custodian shall deny inspection of captured plate data collected by an automatic license plate reader system. § 4-326(b). Use or sharing of captured data in the course of the custodian’s official duties is permitted. § 4-326(c). This section does not apply to an electronic toll collection system or associated transaction system operated by the MTA. § 4-326(d).
Shielded records — A custodian shall deny inspection of criminal and police records relating to the conviction of a crime that have been shielded under Title 10, Subtitle 3 of the Criminal Procedure Article of the Maryland Code. § 4-327(a). Only persons authorized to access such records under Section 10-302(b) of the Criminal Law Article of the Maryland Code are permitted to do so. § 4-327(b).
(2) Mandatory exemption of specific information — § 4-328 et seq.
Medical and psychological information — The custodian shall deny inspection of the part of the public record that contains medical or psychological information about an individual. § 4-329. For example, medical information such as the symptoms of an ill or injured individual recorded during a 911 call may not be released. PIA Manual, at 3-17 (citing to 90 Opinions of the Attorney General 45 (2005)). This exemption applies only to the part of a public record that contains information about an identified individual. § 4-329(b). This exemption does not apply to autopsy reports of a medical examiner. Id.; 63 Op. Att'y Gen. 659 (1978).
The person in interest may have access to such records to the extent permitted by Md. Code Ann., Health-Gen. § 4-304(a). A request by a person in interest may not be denied, however, by an agency merely because the person seeks the identity of the source of infection, or because the information sought was gathered in the course of an agency's investigation of an outbreak or an infectious disease. See Haigley v. Department of Health and Mental Hygiene, 128 Md. App. 194, 228, 736 A.2d 1185, 1202-03 (1999). See also 71 Op. Att'y Gen. 297 (1986) (tape recording of involuntary admission hearing may be disclosed to patient or authorized representative). With the consent of the individual or person in interest, non-profit health service plans and insurance companies may release personal medical record information to employers who sponsor and maintain group health plans. 63 Op. Att'y Gen. 432 (1978). With respect to non-profit health services plans, consent would not be necessary if the information was released without identifying the subscriber. Id.
A State's Attorney may obtain medical records for purposes of a criminal case if he first establishes written confidentiality procedures, determines whether compulsory process is required, identifies whether the records are covered by general or specific confidentiality categories; ascertains applicable restrictions; and decides on the appropriate type of compulsory process, depending on whether the prosecutor is conducting investigations or prosecuting cases that have been charged. 94 Op. Att'y Gen. 44 (2009).
Commercial information — This exemption applies to trade secrets and confidential commercial, financial, geological or geophysical information obtained from or provided by a person or governmental unit. § 4-335. This exemption does not cover commercial or financial information generated by the agency itself; however, such information may be covered by other law. See Stromberg Metal Works Inc., v. University of Maryland, 382 Md. 151, 167-70, 854 A.2d 1220 (2004), Federal Open Market Comm. v. Merrill, 443 U.S. 340 (1979) (interpreting Exemption 5 of FOIA to include a qualified privilege permitting the non-disclosure of confidential commercial information generated by the government in the process leading up to the award of a contract). Federal cases and the legislative history of the comparable FOIA exemptions regarding commercial information provide persuasive authority in interpreting § 4-335. 63 Op. Att'y Gen. 355 (1978).
The Attorney General has adopted an objective test requiring an inquiry into whether such data is customarily considered confidential in the business and whether withholding access would serve a governmental or private purpose sufficiently compelling to overcome the state's liberal disclosure policy. 63 Op. Att'y Gen. 355, 362 (1978). In a later opinion, the Attorney General more clearly delineated the test for determining the confidential nature of commercial or financial information. See 69 Op. Att'y Gen. 231, 234 (1984). The test requires a showing that disclosure of the requested information would: (1) impair the government's future access to such information; or (2) cause substantial harm to the competitive position of the person submitting the information. Id. at 234-35.
In addition, the PIA Manual points out that commercial or financial information voluntarily provided to the government should be considered confidential "if it is of the kind that the provider would not customarily release to the public." PIA Manual, at 3-23. The Attorney General's Office recommends that under such circumstances, the submitter should be consulted before the material is disclosed. Id.
Coverage and premium calculations of the Maryland Automobile Insurance Fund's insureds have been held to be confidential commercial and financial data. Progressive Casualty v. MAIF, No. 83/E1074, Baltimore County Cir. Ct. (Feb. 15, 1986).
The Maryland Attorney General has defined a trade secret as:
[a]n unpatented secret formula or process known only to certain individuals using it in compounding some article of trade having commercial value. Secrecy is the essential element. Thus, [a] trade secret is something known to only one or a few, kept from the general public, and not susceptible of general knowledge. If the principles incorporated in a device are known to the industry, there is no trade secret which can be disclosed.
63 Op. Att'y Gen., at 359 (footnotes and citations omitted).
Public employees — Home addresses and telephone numbers of public employees are exempt from disclosure, unless the employee permits the disclosure or the public employer determines that disclosure is necessary to protect the public interest. § 4-331. However, public employee organizations may have access to such information under certain conditions. See Md. Code Ann., State Pers. § 21-504. Public employee's salaries, however, are not exempt from disclosure § 4-101(j)(2); see also § 4-336(a). The Maryland Attorney General has construed the term "salary" to include records reflecting individual bonuses or performance awards paid to merit system employees and appointed officials. 83 Op. Atty. Gen. 163, 164 (1998).
Financial information — This exemption applies to information about an individual, including assets, income, liabilities, net worth, bank balances, financial history or activities, or creditworthiness. § 4-336(b). University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 105 847 A.2d 427, 442 (2004). This exemption does not apply to the person in interest; nor does it apply to the salary of a public employee. § 4-336(a).
A hodgepodge of opinions authored by the Maryland Court of Appeals and the Attorney General shed light upon information subject to this exemption. In Kirwan v. The Diamondback, 352 Md. 74, 721 A.2d 196 (1998), the Maryland Court of Appeals rejected the University of Maryland's argument that records of traffic citations received by its head basketball coach were financial records under the Act. 352 Md. at 85, 721 A.2d at 201. In so doing, the court noted that a parking ticket is a citation charging a misdemeanor; it is not a record of indebtedness or liability. Accordingly, because the documents did not fall within the categories of documents identified as financial records within the statute, it was not exempt under the PIA. Id. The Attorney General has construed the term "salary" to include records reflecting individual bonuses or performance awards paid to merit system employees and appointed officials. 83 Op. Atty. Gen. 163, 1644 (1998). Contrarily, disclosure statements filed with county ethics commissions are filed pursuant to the financial disclosure sections of county ordinances and, thus, must be maintained as public records available for inspection and copying in their entirety. 71 Op. Att'y Gen. 282 (1986).
The Attorney General has opined that any record that shows how much money or what type of property people have left unclaimed reveals information about the "assets" of those people. 77 Op. Att'y Gen. 233, 234 (1992). Therefore, any part of a public record that discloses the monetary value or description of property reported to the Unclaimed Property Section as abandoned property must be withheld from public disclosure. Id.
Information systems — Information concerning the security of an information system is exempt from disclosure. § 4-338. On October 24, 1983, the Governor issued Executive Order 01.01.1983.18, establishing a State Data Security Committee regarding security measures for the protection of state agencies maintaining computerized record systems. COMAR 01.01.1983.18.
Licensing records — Although a person's occupational or professional licensing records are generally exempt, the exemption does not apply to that part of a public record that gives the licensee's name, business address (or home address in the absence of a business address), business telephone number, educational and occupational background, professional qualifications, any orders and findings resulting from formal disciplinary actions, and any evidence that has been provided to the custodian to meet the requirements of a statute as to financial responsibility. § 4-333(b). Note that a member of the General Assembly may acquire the names and addresses of and statistical information about individuals who are licensed or, as required by a State law, registered. § 4-103(c).
Other information may be disclosed about a licensee if the custodian finds a compelling public purpose and the rules and regulations of the official custodian permit disclosure. § 4-333(c). The Department of Labor, Licensing and Regulation has concluded that a compelling public interest is served by the disclosure of additional information to an individual who is contemplating a contract with the licensee. Such additional information includes the number, nature, and status of complaints against a licensee. COMAR 09.01.04.11.
The person in interest may review information relating to him or herself. § 4-333(d). In addition, a custodian who sells lists of licensees must omit from the list the name of any licensee on written request of the licensee. § 4-333(e).
Suspected collusive or anticompetitive activity — Disclosure of any part of a public record that contains information generated by the bid analysis management system concerning an investigation of a transportation contractor’s suspected collusive or anticompetitive activity and submitted to the Maryland Department of Transportation by the U.S. Department of Transportation or another state is exempt from disclosure. § 4-337. The purpose of this section is to provide assurances of confidentiality to investigatory sources of the Maryland Department of Transportation during the course of investigations into bid-rigging. See Bill Analysis, House Bill 228 (1994) (quoted in PIA Manual, at 3-25).
Notary publics — A custodian shall deny inspection of the part of a public record that contains information about the application and commission of a notary public. § 4-332(a). However, the notary public's name, home address, home and business telephone numbers, commission issue and expiration dates, date of taking the oath of office, and signature are not exempt from disclosure. § 4-332(b). Other information may be disclosed if the custodian finds a compelling public purpose. § 4-332(c). Inspection of the record by a notary public or any other person in interest may be denied only to the extent that the inspection could: (1) interfere with a valid and proper law enforcement proceeding; (2) deprive another person of a right to a fair trial or an impartial adjudication; (3) constitute an unwarranted invasion of personal privacy; (4) disclose the identity of a confidential source; (5) disclose an investigative technique or procedure; (6) prejudice an investigation; or (7) endanger the life or physical safety of an individual. § 4-332(d).
In addition, on written request from the notary public, a custodian who sells lists of notaries public shall omit that person's name from the lists. § 4-332(e).
License application containing Social Security number — A custodian shall deny inspection of the part of an application for a marriage license or a recreational license that contains a Social Security number, except to a person in interest or upon the request of the State Child Support Enforcement Administration. § 4-334.
Personal information about a person who maintains an alarm or security system — A custodian shall deny inspection of the part of a public record that identifies or contains personal information about a person, including a commercial entity, that maintains an alarm or security system. § 4-339(a). Inspection shall, however, be permitted by the person in interest, the alarm or security system company that can document it currently provides services to the person of interest, law enforcement personnel and emergency services personnel. § 4-339(b). Personal information is defined in § 4-101(h)(2) as information identifying an individual's name, address, driver's license number or other identification number, medical or disability information, photograph or computer-generated image, Social Security number, or telephone number. Personal information does not include an individual's driver's status, driving offenses, five-digit zip code or information on vehicle accidents. § 4-101(h)(3).
Senior citizen activity centers — A custodian shall deny inspection of any part of a public record that contains the name, address, telephone number or electronic mail address of an individual enrolled in or any member of a senior citizen activities center. § 4-340(b). Inspection by the person in interest, law enforcement personnel or emergency services personnel is permitted. § 4-340(c).
(3) Discretionary exemption of specific records: With respect to exemptions within this category, a custodian may deny access to a part of a public record if he or she believes such disclosure to be contrary to the public interest. § 4-343. The determination of whether disclosure would be contrary to the public interest rests in the sound discretion of the official custodian. 58 Op. Att'y Gen. 563, 566. (1973).
Interagency and intra-agency documents — This exemption applies to 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. § 4-344; see also Maryland Comm. Against Gun Ban v. Mayor and City Council of Baltimore, 91 Md. App. 251, 603 A.2d 1364 (1992), rev'd on other grounds, 329 Md. 78, 617 A.2d 1040 (1993), Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 297 805 A.2d 268, 282 (2002), Prince George's County v. Washington Post Co., 149 Md. App. 289, 320, 815 A.2d 859, 877 (2003). The exemption applies only to information that may be regarded as deliberative or consultative in nature, and it does not apply to information that is largely factual. See Stromberg Metal Works Inc., v. University of Maryland, et al., 382 Md. 151, 163-67, 854 A.2d 1220, 1227-1230 (2004) (holding that the University could not assert the privilege allowed in § 4-344 for numbers it redacted from a construction project budget report since those numbers were largely factual in nature. The Court noted that the number does not, therefore, constitute a memorandum that would not be available to a private party in litigation). The Maryland Court of Appeals has also made clear that § 4-344 includes information covered under the attorney work product doctrine. Caffrey, 370 Md. at 307, 805 A.2d at 289, see also PIA Manual, at 3-30.
This exemption is substantially similar to its comparable FOIA counterpart and, thus, federal case law provides persuasive authority in interpreting its scope. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 163, 854 A.2d 1220 (2004), 58 Op. Att'y Gen. 53 (1973). The FOIA exemption is "intended to preserve the process of agency decision-making from the natural muting of free and frank discussion which would occur if each voice of opinion and recommendation could be heard and questioned by the world outside the agency." PIA Manual, at 3-29 (quoting from O'Reilly, Federal Information Disclosure: Procedure; Procedures; Forms and the Law, § 15.01(3d ed. 2000). It has also been observed that the basis of the exemption is the executive privilege doctrine. The privilege arose from the common law, the rules of evidence, and the discovery rules for civil proceedings. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 163, 854, A.2d 1220 (2004); see also PIA Manual, at 3-28. The Maryland Court of Appeals examined the nature of the privilege in Maryland in Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); see also 66 Op. Att'y Gen. 98 (1981).
The exception covers only deliberative aspects of agency memoranda or letters, and not records that are purely factual, objective, or that contain scientific data. PIA Manual, at 3-30. The Attorney General's office recommends that in determining into which category a given record falls, "a presumption of disclosure should prevail, unless the responsible agency official can demonstrate specific reasons why agency decision making may be compromised if the questioned records are released." PIA Manual, at 3-31. In addition, the agency must articulate specific reasons for withholding documents. Cranford v. Montgomery County, 300 Md. 759, 481 A.2d 221 (1984).
Examinations — Test questions, scoring keys, and other examination information that relates to the administration of licenses, employment, or academic matters may be withheld from disclosure. § 4-345(a). Mayer v. Montgomery County, 143 Md. App. 261, 291, 794 A.2d 704, 724 (2002). A person in interest shall have access to a written promotional examination and to the results of the person's examination after the examination has been given and graded, but that person shall not be permitted to copy or otherwise reproduce the examination. § 40345(b).
Research projects — A public record that sets forth the specific details of a research project that a state institution or a political subdivision is conducting may be exempt. § 4-346(a). A custodian may not deny access to the part of a public record that gives only the name, title, expenditures, and date when the final project summary will be available. § 4-346(b); see also 58 Op. Att'y Gen. 53, 59 (1973) (applying this exemption to a consultant's report).
For a thorough discussion of what types of activities constitute research projects within the scope of § 10-618(d), see Haigley v. Department of Health & Mental Hygiene, 128 Md. App. 194, 736 A.2d 1185 (1999). In that decision, the Maryland Court of Special Appeals addressed the interplay between the Maryland Code Health General article's provisions concerning confidentiality of medical records and § 4-346's permissive exemption of records relating to a study. The court rejected the Department's interpretation that anytime the Department gathered information concerning an outbreak of an infectious disease, it was conducting a study falling within the exemption. 128 Md. App. at 216, 736 A.2d at 1196. Rather, the court held that a study had to be academic in nature. To hold otherwise, the court noted, would allow the Department — or any other agency — to declare virtually all of its records non-disclosable "studies," an action that would violate both the spirit and the letter of the PIA. 128 Md. App. at 214, 736 A.2d at 1195.
Site-specific location of certain plants, animals or property — With the exception of the owner of the land upon which the resource is located or any entity that could take the land through the right of eminent domain, a custodian may deny inspection of a public record that contains information concerning: (a) the site-specific location of an endangered or threatened species of plant or animal; (b) a species of plant or animal in need of conservation; (c) a cave; or (d) a historic property as defined in § 5A-301 of the State Finance and Procurement Article in the Maryland Code. § 4-350.
Inventions owned by state public institutions of higher education — A custodian may deny disclosure of information disclosing or relating to an invention owned in whole or in part by a state public institution of higher education for four years to permit the institution to evaluate whether to patent or market the invention and pursue economic development and licensing opportunities. § 4-347(a). If the information has already been disclosed by the inventors, licensed by the institution for at least four years, or four years have elapsed since the date of written disclosure, the custodian may not deny inspection. § 4-347(b).
Real estate appraisals — Until the State or political subdivision acquires title to property, a custodian my deny inspection of a public record that contains a real estate appraisal of the property. § 4-349(a). A custodian may not deny inspection by the owner of the appraised property. § 4-349(b).
State-owned information - A custodian may deny inspection of that part of a public record that contains information disclosing or relating to a trade secret, commercial information, or confidential financial information owned in whole or in party by the Maryland Technology Development Corporation or a public institution of higher education, if the information is part of the institution’s activities under Section 15-107 of the Education Article of the Maryland Code. § 4-348.
Investigatory information — A custodian may deny inspection of records of investigations conducted by the Attorney General, a State's Attorney, a municipal or county attorney, a police department, or a sheriff; an investigation file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or records that contain intelligence information or security procedures of the Attorney General, a State's Attorney, a municipal or county attorney, a police department, a State or local correctional facility, or a sheriff. § 4-351(a). A person in interest generally may inspect such records, except to the extent the inspection would interfere with a valid and proper law enforcement proceeding; deprive another person of a right to a fair trial or an impartial adjudication; constitute an unwarranted invasion of personal privacy; disclose the identity of a confidential source; disclose an investigative technique or procedure; prejudice an investigation; or endanger the life or physical safety of an individual. § 4-351(b). The person making the complaint that triggered an internal investigation is not a "person in interest." Md. Dep't of State Police v. Dashiell, 443 Md. 435 (2015).
Emergency Management — The custodian may deny inspection of response procedures or plans prepared to prevent or respond to emergency situations, the disclosure of which would reveal vulnerability assessments, specific tactics, emergency or security procedures; building plans, blueprints, schematic drawings, diagrams, operational manuals, or any other records of ports and airports and any other mass transit facilities, bridges, tunnels, emergency response facilities or structures, buildings where hazardous materials are stored, arenas, stadiums, waste and water systems, and any other building, structure, or facility, the disclosure of which would reveal the building's, structure's, or facility's internal layout, specific location, life, safety, and support systems, structural elements, surveillance techniques, alarm or security systems or technologies, operational and transportation plans or protocols, or personnel deployments; or records prepared to prevent or respond to emergency situations and that identify or describe the name, location, pharmaceutical cache, contents, capacity, equipment, physical features, or capabilities of individual medical facilities, storage facilities, or laboratories. § 4-352(a). Disclosure may be denied only to the extent that the inspection would jeopardize the security of any building, structure or facility, facilitate the planning of a terrorist attack, or endanger the life or physical safety of an individual. § 4-352(b). Police Patrol Security Systems Inc. v. Prince George's County, 378 Md. 702, 719 838 A.2d 1191, 1201 (2003). This subsection does not apply to buildings, structures, or facilities owned by the State or any political subdivision; to any building, structure, or facility subject to a catastrophic event like a fire, explosion or natural disaster; or to an inspection or issuance of a citation concerning a building, structure, or facility by an agency of the State or any political subdivision. § 4-352(c).
Maryland Port Administration — A custodian may deny inspection of the part of the public record containing information concerning stevedoring or terminal services or facility use rates or proposed rates; a proposal generated, received, or negotiated by the Maryland Port Administration or any private operating company created by the Administration for use of stevedoring or terminal services or facilities to increase waterborne commerce; or research or analysis related to maritime businesses or vessels compiled for the Administration or any private operating company created by the Administration to evaluate its competitive position with respect to other ports. § 4-353(a). A custodian may not deny inspection by the exclusive representative identified in the memorandum of understanding between the State and the American Federation of State, County and Municipal Employees, the memorandum of understanding between the State and the Maryland Professional Employees Council, or any successor memoranda. § 4-353(b).
University of Maryland University College — A custodian may deny inspection of any part of a public record that relates to the University of Maryland University College's ("UMUC") competitive position with respect to other providers of education services that contains fees, tuition, charges and any information supporting same proposed, generated, received, or negotiated by UMUC, except fees, tuition, and charges published in catalogues and ordinarily charged to students; a proposal generated, received, or negotiated by UMUC for education services except proposals with its students; or any research, analysis or plans relating to UMUC operations or proposed operations. § 4-354(a).
However, a custodian may not deny inspection if the record relates to a procurement by UMUC, if UMUC is required to develop or maintain the record by law or at the direction of the Board of Regents, if the record relates to a matter that is the subject of collective bargaining negotiations, if the exclusive representative has entered into a nondisclosure agreement with UMUC to ensure the confidentiality of the information provided. § 4-354(b).
Public institutions of higher education — A custodian of a record kept by a public institution of higher education that contains personal information relating to a student, a former student, or an applicant may require that a request to inspect a record containing personal information be made in writing and sent by first-class mail; and deny inspection of the part of the record containing the personal information if the information is requested for commercial purposes. § 4-355(b).
(4) Substantial injury to the public interest — Section 4-358 permits a temporary denial of inspection whenever the custodian believes that inspection of a public record otherwise subject to disclosure would cause substantial injury to the public interest. This exemption permits only a temporary denial of access and requires the official custodian to petition the court for an order permitting the continued denial of access within ten working days after the initial denial is made. § 4-358(b). The denial may continue if the court finds after a hearing that disclosure of the public record would cause substantial injury to the public interest. § 4-358(d). In addition, an official custodian who fails to petition the court for an order to continue a denial of access under § 4-358, is liable for actual damages that the court deems appropriate. § 4-362(d)(2); but see ACLU v. Leopold, 223 Md. App. 97, 123 (2015) ("actual damages" under the statute does not include emotional damages).
The initial determination of whether disclosure is contrary to the public interest, however, is within the discretion of the custodian. 64 Op. Att'y Gen. 236 (1979). A technical disadvantage that a governmental entity might suffer in resolving a pending claim because of a disclosure is insufficient to establish a "substantial injury to the public interest" in order to qualify for the exemption. Mayor of Baltimore v. Burke, 67 Md. App. 147, 506 A.2d 683 (1985), cert. denied, 306 Md. 110, 507 A.2d 631 (1986).
CompareB. Other statutory exclusions
There are no specific standards that must be met for another statute to override the open records provisions of the PIA. The PIA specifically provides that "[e]xcept as otherwise provided by law, a custodian shall allow a person or governmental unit to inspect any public record at any reasonable time." 4-201(a)(1). This section clearly permits another statute to override the PIA. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 133, 737 A.2d 592, 600 (1999). See, e.g., Md. Code Ann., Health-Occ. § 14-411(b) (records of the State Board of Physicians, a disciplinary panel, or any of its other investigative bodies are generally prohibited from disclosure). Therefore, although § 4-103(b) provides for a liberal construction in favor of permitting access to public records, other state and federal statutes may require or permit non-disclosure. Hammen v. Baltimore County Police Department, 373 Md. 440, 456, 818 A.2d 1125, 1135 (2003); University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 95, 847 A.2d 427, 437 (2004).
CompareC. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure
Section 4-301(a), prohibiting the disclosure of a public record that is privileged or confidential by law, is essentially a restatement of the common law attorney-client privilege, attorney work product doctrine and the grand jury secrecy doctrine. See Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975); 82 Op. Att'y Gen. 185 (1997) (construing the scope of the attorney-client privilege applicable to a county attorney and finding the privilege applicable to communications between the attorney and the county commissioners and their agents and employees); 62 Op. Att'y Gen. 579 (1977) (fee arrangement between Maryland Automobile Insurance Fund and defense attorney is subject to public disclosure because it is not privileged or confidential by law). Although records subject to the attorney-client privilege must be protected under § 4-301(a), the privilege may be waived by the party entitled to assert it. Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 304, 805 A.2d 168 (2002) (where Montgomery County Charter provision effectuated limited waiver of attorney-client privilege); see also PIA Manual, at 3-5.
Section 4-301(a) also relates to the executive privilege for confidential executive communications of an advisory or deliberative nature. See Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); 66 Op. Att'y Gen. 98 (1981), Prince George's County v. Washington Post Co., 149 Md. App. 289, 318, 815 A.2d 859, 875 (2003); Stromberg Metal Works Inc., v. University of Maryland, 382 Md. 151, 161-63, 854 A.2d 1220 (2004); see also PIA Manual, at 3-5. Also, court-derived exclusions, such as the confidentiality of juvenile records, Md. Rule 11-121, and a court order to seal records override the PIA. Md. Rule 16-907(l). Moreover, although Md. Rule 19-707(f)(3) permits disclosure of information to complainants concerning the disposition of their complaints against attorneys, such information is not subject to general disclosure. Attorney Grievance Comm'n of Md. v. A.S. Abell Co., 294 Md. 680, 452 A.2d 656 (1982).
The PIA does not override other specific statutes and rules addressing production of records, such as the rules concerning grand jury secrecy. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 133, 737 A.2d 592, 600 (1999). It is doubtful that a state agency regulation or county ordinance could override the PIA disclosure requirements. See § 4-301(a) (state regulations are not among the listed categories as preempting the PIA). In fact, the Maryland Court of Appeals has established that an ordinance enacted by a local government does not constitute other "law" for purposes of § 4-301(a) and cannot by itself supply a basis for withholding a public record otherwise available under the PIA. Police Patrol Security Systems v. Prince George's County, 378 Md. 702, 710, 713-15, 838 A.2d 1191 (2003); see also PIA Manual, at 3-6. See also 86 Op. Att'y Gen. 94 (2001). Conversely, local law may not authorize release of a public record if disclosure is expressly prohibited by the PIA. Police Patrol Security Systems, 378 Md. at 712; Caffrey v. Dep't of Liquor Control for Management County, 370 Md. 272, 303, 805 A.2d 268 (2002); see also PIA Manual, at 3-7.
CompareD. Protective orders and government agreements to keep records confidential
CompareE. Interaction between federal and state law
Compare1. HIPAA
Compare2. DPPA
Compare3. FERPA
Compare4. Other
CompareF. Segregability requirements
CompareG. Agency obligation to identify basis of redaction or withholding
CompareIII. Record categories - open or closed
CompareA. Autopsy and coroners reports
These records are open pursuant to § 4-329. See also 63 Op. Att'y Gen. 659 (1978). However, photographs and other documents related to an autopsy are protected from disclosure. See PIA Manual, at 3-17.
CompareB. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)
There is no statutory or case law addressing this issue.
CompareC. Bank records
These records are closed pursuant to § 4-336(b). This exemption does not apply to the person in interest, § 4-336(c), nor does it apply to the salary of a public employee. § 4-336(a).
CompareD. Budgets
There is no statutory or case law addressing this issue. But see 66 Op. Att'y Gen. 98 (1981) (budget recommendations requested by and submitted to the Governor in confidence by various executive agencies are subject to Executive Privilege).
CompareE. Business records, financial data, trade secrets
These records are closed pursuant to § 4-335. This exemption does not cover commercial or financial information generated by the agency itself; however, such information may be covered by other law. See Stromberg Metal Works, Inc. v. University of Maryland, 382 Md. 151, 167-70 (2004).
CompareF. Contracts, proposals and bids
This information ordinarily falls under the confidential commercial or financial information exemption of the PIA, which is substantially similar to the federal exemption under the FOIA. As such, the records are generally closed pursuant to § 4-335. Also, inspections shall be denied where the records sought contain information generated by the bid analysis management system and concerns an investigation based on a transportation contractor's suspected collusive or anticompetitive activity. § 4-337. Additionally, disclosure of any part of the public record containing procurement information generated by the federal government or another state resulting from an investigation into suspected collusive or anticompetitive activity on the part of a transportation contract is exempt from disclosure. Id.
CompareG. Collective bargaining records
The PIA does not specifically address these types of records; however, under § 3-305(b)(9) of the Open Meetings Act, a public body is permitted to hold a closed session regarding collective bargaining issues. Further, under § 4-354, a custodian may not deny inspection of any part of a public record if the record relates to a matter that is the subject of collective bargaining negotiations between the exclusive representative and the University of Maryland University College.
CompareH. Economic development records
Trade secret, confidential commercial information, and confidential financial information owned either by the Maryland Technology Development Corporation or by a public senior higher education institution (Morgan State University, St. Mary’s College, and constituent institutions of the University of Maryland) are protected in connection with, inter alia, economic development efforts. § 4-348. See also Office of the Governor v. Washington Post Co., 360 Md. 520, 549 (2000) (holding that a record of a telephone call about an economic development project does not itself constitute confidential commercial information, but that notes detailing the substance of the discussion might).
CompareI. Election Records
There is no statutory or case law addressing this issue.
CompareJ. Emergency Medical Services records
Medical information, including the symptoms or condition of an individual recorded during a call to 911 to dispatch emergency personnel is protected. 90 Opinions of the Attorney General 45 (2005).
CompareK. Gun permits
A custodian shall deny inspection of records of a person authorized to sell, purchase, rent or transfer regulated firearms or to carry, wear, or transport a handgun. § 4-325(a). Inspection by the individual named in the record or that individual’s attorney is permitted. § 4-325(b). The Departments of State Police and Public Safety and Correctional Services are also permitted to access firearm or gun records in the performance of official duties. § 4-325(c).
CompareL. Homeland security and anti-terrorism measures
The custodian may deny inspection of response procedures or plans prepared to prevent or respond to emergency situations, the disclosure of which would reveal, inter alia, vulnerability assessments, specific tactics, emergency or security procedures. § 4-352(a). Disclosure may be denied pursuant to § 4-352(a) only to the extent that the inspection would jeopardize the security of any building, structure or facility, facilitate the planning of a terrorist attack, or endanger the life or physical safety of an individual. § 4-352(b). Police Patrol Security Systems Inc. v. Prince George's County, 378 Md. 702, 719 838 A.2d 1191, 1201 (2003). This subsection does not apply to buildings, structures, or facilities owned by the State or any political subdivision; to any building, structure, or facility subject to a catastrophic event like a fire, explosion or natural disaster; or to an inspection or issuance of a citation concerning a building, structure, or facility by an agency of the State or any political subdivision. § 4-352(c).
CompareM. Hospital reports
A record that relates to medical administration, staff, medical care, or other medical information and containing information about specific individuals is generally closed pursuant to § 4-306; see also Md. Code Ann., Health Gen'l § 4-302. The Legislative Auditor may have access to the records of the Department of Health and Mental Hygiene for the performance of his/her duties. 63 Op. Att'y Gen. 453 (1978).
CompareN. Personnel records
A custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information to anyone other than the person in interest or an elected or appointed official who supervises the work of the individual. § 4-311(a). Information relating to the performance evaluation of judges and information about a claim filed against an employee is not subject to disclosure. See 79 Op. Att'y Gen. 179, 181(1994); 78 Op. Att'y Gen. 297, 299-300 (1993). The purpose of treating personnel records as confidential is "to preserve the privacy of personal information about a public employee accumulated during his or her employment." Baltimore City Police Dep't v. State, 158 Md. App. 274, 282, 857 A.2d 148, 153 (2004) (citing 78 Op. Att'y Gen. 291, 293 (1993)). See also 65 Op. Att'y Gen. 365 (1980). There must be a concrete nexus between the official and the employee before the official is allowed access to the employee's personnel record. Id.
However, the Maryland Court of Appeals has established that employment contracts themselves do not come within this exception and are therefore subject to disclosure because they are not in the nature of a performance evaluation. University System of Maryland, et al., v. The Baltimore Sun Company, 381 Md. 79, 102, 847 A.2d 427, 441 (2004) (rejecting the University's argument that employment contracts it had with athletic coaches came within the exemption for personnel records found in § 4-311(a)). See also PIA Manual, at 3-10. The Court further stated that any side letter or documents reflecting the total compensation and sums of monies paid directly by the University to its coaches must be disclosed. University System of Maryland, 381 Md. at 103.
It has also been established that directory-type information concerning agency employees is not a "personnel record" under § 4-311(a). Prince George's County v. Washington Post Co., 149 Md. App. 289, 324, 815 A.2d 859 (2003) (finding that roster listing names, ranks, badge numbers, date of hire and job assignments of county police officers was not exempt for disclosure as a "personnel record"). Generally, a record generated by an agency that lacks supervisory authority over an employee does not qualify as a "personnel record." Prince George's County, 149 Md. App. at 331. In addition, personnel records of an individual may lose that status if all identifying information is redacted. Md. State Police v. NAACP, 430 Md. 179, 195 (2013) (requiring disclosure of records of investigation into complaints of racial profiling).
The Legislative Auditor may have access to personnel records in the performance of his/her duties. 60 Op. Att'y Gen. 554 (1975). State Accident Fund investigators also may have access to personnel records concerning a workers' compensation fund claimant, or otherwise pertinent to the claim. 60 Op. Att'y Gen. 559 (1975). However, files of investigations of employee conduct generally do not constitute personnel records of an individual and are instead classified as investigatory files. Maryland Dept. of State Police v. Maryland State Conference of NAACP Branches, 190 Md. App. 359, 378, 988 A.2d 1075, 1086 (2010), cert. granted, 997 A.2d 789 (2010).
Compare1. Salary
A "public record" includes a document that lists the salary of an employee of a unit or instrumentality of the state government or of a political subdivision. § 4-101(j)(2); Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975), University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 100, 847 A.2d 427, 439 (2004) (finding that an employment contract of a public employee evidencing how a publicly funded salary is earned qualified as a public record).
Compare2. Disciplinary records
The Maryland Court of Appeals has construed the phrase "personnel records" as "those documents that directly pertain to employment and an employee's ability to perform a job." Kirwan v. The Diamondback, 352 Md. 74, 83, 721 A.2d 196, 200 (1998). Such records would include those directly relating to the employee's hiring, discipline, promotion, dismissal, or any matter involving his status as an employee. 352 Md. at 82, 721 A.2d. at 200. Accordingly, a university record of its employee's on-campus parking violation is subject to disclosure under the PIA because such a violation has no bearing on the employment status. 352 Md. at 84, 721 A.2d at 201.
Compare3. Applications
Applications for employment can only be disclosed to the person in interest or to elected or appointed official who supervises the person in interest. § 4-311(b).
Compare4. Personally identifying information
Personal identification information (e.g., income, address, phone number, Social Security number, etc.) is considered sociological data. COMAR 12.11.02.02B(13). If the agency has adopted rules or regulations that define sociological information, then the custodian shall deny inspection of the part of the public record containing sociological information. § 4-330. The PIA does not delineate the type of information subject to this exemption. Rather, the agency must define what constitutes sociological information by regulation before access to such information may be denied. Id. In addition, information that identifies an individual by an identifying factor is protected from disclosure by § 4-401. Identifying factors include: address, description, finger or voice print, number, or picture. §§ 4-401, -501. However, access may be permitted for research purposes. § 4-501(c)(5)(iv).
Compare5. Expense reports
There is no statutory or case law addressing this issue.
Compare6. Evaluations/performance reviews
Compare7. Complaints filed against employees
Compare8. Other
CompareO. Police records
Compare1. Accident reports
Although not generally exempt, a custodian shall deny inspection of police reports of traffic accidents, criminal charging documents prior to service on the defendant named in the documents, and traffic citations filed in the Maryland Automated Traffic System to either an attorney or a person employed by, retained by, associated with or acting on behalf of an attorney who seeks to use the records for the purpose of soliciting or marketing legal services. § 4-315. This exemption does not apply to an attorney of record of the person who is named in the record. Id. The constitutionality of this restriction has been called into doubt. See Ficker v. Curran, 950 F. Supp. 123 (D. Md. 1996).
Compare2. Police blotter
Arrest logs are not exempt from disclosure because they are not considered records of investigations or investigatory files. 63 Op. Att'y Gen. 543 (1978). They are also specifically not included from the exemption for “Criminal history record information.” Md. Code, Criminal Procedure, §10-201(d)(3)(iii).
Compare3. 911 tapes
Tape recordings of 911 Emergency Telephone System calls are public records, except for those portions exempted from disclosure. 71 Op. Att'y Gen. 288 (1986). For example, medical information such as the symptoms of an ill or injured individual recorded during a 911 call may not be released. PIA Manual, at 3-17 (citing to 90 Opinions of the Attorney General 45 (2005).
Compare4. Investigatory records
Records of investigations conducted by the Attorney General, a State's Attorney, a city or county attorney, a police department, or a sheriff; an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or records that contain intelligence information or security procedures of the Attorney General, a State's Attorney, city or county attorney, a police department, a local correctional facility, or a sheriff are exempt from disclosure. § 4-351(a). Blythe v. State, 161 Md. App. 492, 525, 870 A.2d 1246, 1264, cert. granted, 388 Md. 97, 879 A.2d 42 (2005), Prince George's County v. Washington Post Co., 149 Md. App. 289, 324, 815 A.2d 859, 880 (2003); see also PIA Manual, at 3-34.
The documents of an investigation by a police department, sheriff's office or any of the other law enforcement agencies specifically listed in § 4-351(a) are presumptively compiled for law enforcement or prosecution purposes. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 737 A.2d 592 (1999); Superintendent, Maryland State Police v. Henschen, 279 Md. 468, 475, 369 A.2d 558 (1977); Blythe v. State, 161 Md. App. 492, 525-26, n.6, 870 A.2d 1246, cert. granted, 388 Md. 97, 879 A.2d 42 (2005). For example, the State's Attorney is neither required nor authorized to disclose a police investigative report or any part of it that was used for grand jury proceedings. 64 Op. Att'y Gen. 236 (1979).
Moreover, where the agency's files are prepared in anticipation of government litigation and adjudicative proceedings are pending or contemplated, such files are compiled for law enforcement purposes. ACLU v. Leopold, 223 Md. App. 97, 128 (2015); Equitable Trust Co. v. Maryland Comm'n on Human Relations, 42 Md. App. 53, 75, 399 A.2d 908 (1979), rev'd on other grounds, 287 Md. 80, 411 A.2d 86 (1980); see also 82 Op. Att'y Gen. 49, 50-51 (1997) (finding MVA records compiled during course of investigation into driver's fitness to be "investigatory files," but also finding such files are generally subject to disclosure to the driver).
If the agency is not a law enforcement agency specifically listed in the PIA, then it must show that its records were compiled for law enforcement or prosecution purposes in order for the exemption to apply. Office of the State Prosecutor, 356 Md. at 140, 737 A.2d at 604 (distinguishing Fioretti, 351 Md. at 78-79, 716 A.2d at 264-65 (Board of Dental Examiners was not among specifically enumerated entities and was required, therefore, to prove both that it was conducting an investigation and that production of individual records sought would prejudice that investigation)); see also Equitable Trust Co., 42 Md. App. 53, 75. Thus, for example, because the Human Relations Commission is not a named law enforcement agency, it is required to make such a showing. Id.
An agency might have records obtained from investigatory files of another agency. In these circumstances, the agency must withhold investigatory material if the agency that provided the information would itself deny access under the investigatory records exemption. PIA Manual, at 3-35 (citing 89 Opinions of the Attorney General 31, 44 (2004)).
A person whose complaint of police misconduct gives rise to an internal police investigation of the incident, is not the subject of the internal investigation and is not, therefore, a person in interest. Mayor and City Council of Baltimore, v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993); see also Briscoe v. Mayor of Baltimore, 100 Md. App. 124, 640 A.2d 226 (1994) (complaining witness was not a person in interest, so denial of inspection of Internal Investigation Division file was justified on public interest grounds). Thus, if the custodian believes that disclosure of records pertaining to the investigation is not in the public interest, the PIA does not require disclosure to the complaining party. Id.
A custodian may deny access to a person in interest only to the extent that disclosure would interfere with a valid and proper law enforcement proceeding, deprive another person of a right to a fair trial or impartial adjudication, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose an investigative technique, prejudice an investigation, or endanger the life or physical safety of an individual. § 4-351(b). Because of a person in interest's favored status, a custodian must point out precisely which of the seven grounds enumerated in § 4-351(b) justify withholding of an investigatory record and explain precisely why it would do so. Blythe v. State, 161 Md. App. 492, 531, 870 A.2d 1246, cert. granted, 388 Md. 97, 879 A.2d 42 (2005)); see also PIA Manual, at 3-36.
Although this section appears to place a heavy burden upon a custodian seeking to justify nondisclosure to a person in interest, Maryland case law indicates to the contrary. See Attorney General v. Gallagher, 359 Md. 341, 355, 753 A.2d 1036, 1044 (2000) (person in interest was not entitled to obtain disclosure of records falling within mandatory exemptions of the Act); Office of the State Prosecutor, 356 Md. at 140, 737 A.2d at 604. Faulk v. States Attorney, 299 Md. 493, 474 A.2d 880 (1984). For example, the State is not required to make a particularized showing that the disclosure of investigatory police records compiled for law enforcement purposes to a defendant in a pending criminal proceeding would interfere with that proceeding; a generic determination of interference can be made whenever a defendant in a pending criminal proceeding seeks access to investigatory police reports relating to that proceeding. Id. However, a convicted defendant may obtain access to the prosecutorial file concerning the defendant absent the presence of one or more of the factors stated in subparagraph 2. See 81 Opp. Att'y Gen. 251 (1996).
Once an investigation is closed, investigatory files are subject to disclosure, based upon an amendment to the comparable FOIA exemption. See Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 716 A.2d 258 (1998); Bowen v. Davison, 135 Md. App 152, 761 A.2d 1013 (2000). Once an investigation has been closed, disclosure is considered less likely to be "contrary to the public interest." City of Frederick v. Randall Family, LLC, 154 Md. App. 543, 562-567, 841 A.2d 10 (2004), Prince George's County v. Washington Post Co., 149 Md. App. 289, 33, 815 A.2d 859 (2003). Where the internal police investigation concludes with a determination that the allegations are not sustained, fairness to the investigated officers and the avoidance of needless publicity to the cooperating witnesses, with possible inhibiting effects on future investigations, justify on public interest grounds, the custodian's denial of inspection to one other than a person in interest. Mayor and City Council of Baltimore, v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993).
Compare5. Arrest records
The documents of an investigation by a police department, sheriff's office or any of the other law enforcement agencies specifically listed in § 4-351(a) are presumptively compiled for law enforcement or prosecution purposes. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 737 A.2d 592 (1999); Superintendent, Maryland State Police v. Henschen, 279 Md. 468, 475, 369 A.2d 558 (1977); Blythe v. State, 161 Md. App. 492, 525-26, n.6, 870 A.2d 1246, cert. granted, 388 Md. 97, 879 A.2d 42 (2005). For example, the State's Attorney is neither required nor authorized to disclose a police investigative report or any part of it that was used for grand jury proceedings. 64 Op. Att'y Gen. 236 (1979).
Moreover, where the agency's files are prepared in anticipation of government litigation and adjudicative proceedings are pending or contemplated, such files are compiled for law enforcement purposes. ACLU v. Leopold, 223 Md. App. 97, 128 (2015); Equitable Trust Co. v. Maryland Comm'n on Human Relations, 42 Md. App. 53, 75, 399 A.2d 908 (1979), rev'd on other grounds, 287 Md. 80, 411 A.2d 86 (1980); see also 82 Op. Att'y Gen. 49, 50-51 (1997) (finding MVA records compiled during course of investigation into driver's fitness to be "investigatory files," but also finding such files are generally subject to disclosure to the driver).
If the agency is not a law enforcement agency specifically listed in the PIA, then it must show that its records were compiled for law enforcement or prosecution purposes in order for the exemption to apply. Office of the State Prosecutor, 356 Md. at 140, 737 A.2d at 604 (distinguishing Fioretti, 351 Md. at 78-79, 716 A.2d at 264-65 (Board of Dental Examiners was not among specifically enumerated entities and was required, therefore, to prove both that it was conducting an investigation and that production of individual records sought would prejudice that investigation)); see also Equitable Trust Co., 42 Md. App. 53, 75. Thus, for example, because the Human Relations Commission is not a named law enforcement agency, it is required to make such a showing. Id.
An agency might have records obtained from investigatory files of another agency. In these circumstances, the agency must withhold investigatory material if the agency that provided the information would itself deny access under the investigatory records exemption. PIA Manual, at 3-35 (citing 89 Opinions of the Attorney General 31, 44 (2004)).
A person whose complaint of police misconduct gives rise to an internal police investigation of the incident, is not the subject of the internal investigation and is not, therefore, a person in interest. Mayor and City Council of Baltimore, v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993); see also Briscoe v. Mayor of Baltimore, 100 Md. App. 124, 640 A.2d 226 (1994) (complaining witness was not a person in interest, so denial of inspection of Internal Investigation Division file was justified on public interest grounds). Thus, if the custodian believes that disclosure of records pertaining to the investigation is not in the public interest, the PIA does not require disclosure to the complaining party. Id.
A custodian may deny access to a person in interest only to the extent that disclosure would interfere with a valid and proper law enforcement proceeding, deprive another person of a right to a fair trial or impartial adjudication, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose an investigative technique, prejudice an investigation, or endanger the life or physical safety of an individual. § 4-351(b). Because of a person in interest's favored status, a custodian must point out precisely which of the seven grounds enumerated in § 4-351(b) justify withholding of an investigatory record and explain precisely why it would do so. Blythe v. State, 161 Md. App. 492, 531, 870 A.2d 1246, cert. granted, 388 Md. 97, 879 A.2d 42 (2005)); see also PIA Manual, at 3-36.
Although this section appears to place a heavy burden upon a custodian seeking to justify nondisclosure to a person in interest, Maryland case law indicates to the contrary. See Attorney General v. Gallagher, 359 Md. 341, 355, 753 A.2d 1036, 1044 (2000) (person in interest was not entitled to obtain disclosure of records falling within mandatory exemptions of the Act); Office of the State Prosecutor, 356 Md. at 140, 737 A.2d at 604. Faulk v. States Attorney, 299 Md. 493, 474 A.2d 880 (1984). For example, the State is not required to make a particularized showing that the disclosure of investigatory police records compiled for law enforcement purposes to a defendant in a pending criminal proceeding would interfere with that proceeding; a generic determination of interference can be made whenever a defendant in a pending criminal proceeding seeks access to investigatory police reports relating to that proceeding. Id. However, a convicted defendant may obtain access to the prosecutorial file concerning the defendant absent the presence of one or more of the factors stated in subparagraph 2. See 81 Opp. Att'y Gen. 251 (1996).
Once an investigation is closed, investigatory files are subject to disclosure, based upon an amendment to the comparable FOIA exemption. See Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 716 A.2d 258 (1998); Bowen v. Davison, 135 Md. App 152, 761 A.2d 1013 (2000). Once an investigation has been closed, disclosure is considered less likely to be "contrary to the public interest." City of Frederick v. Randall Family, LLC, 154 Md. App. 543, 562-567, 841 A.2d 10 (2004), Prince George's County v. Washington Post Co., 149 Md. App. 289, 33, 815 A.2d 859 (2003). Where the internal police investigation concludes with a determination that the allegations are not sustained, fairness to the investigated officers and the avoidance of needless publicity to the cooperating witnesses, with possible inhibiting effects on future investigations, justify on public interest grounds, the custodian's denial of inspection to one other than a person in interest. Mayor and City Council of Baltimore, v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993).
Compare6. Compilations of criminal histories
Criminal history record information is exempt from disclosure. Md. Code, Criminal Procedure § 10-219(a). One intent of the law is “to prohibit the improper dissemination” of the information. § 10-202(4) CHRI is data “developed or collected by a criminal justice unit about a person and that pertain to a reportable event.” § 10-201(d)(1). Criminal history record information does not include: data contained in intelligence or investigatory files or police work product records used only for police investigations, including presentence investigation reports; police blotters, wanted posters, court opinions, records of judicial proceedings, information about motor vehicle or local ordinance violations, or presentence or probation reports used in judicial proceedings; or data about violations of traffic laws, local ordinances or State or local regulations. §10-201(d)(3). The disclosure of the CHRIs is treated in a similar vein as the release of expunged records. § 10-204; § 10-109.
Compare7. Victims
A custodian has discretion to disclose an investigatory record containing the name and address of a crime victim and will consider both the public interest and the privacy interests of the victim. For example, the Court of Appeals held that it would be contrary to the public interest to disclose a report of an internal investigation of a police officer because it could discourage witnesses or other persons with information from cooperating. Mayor and City Council of Baltimore v. Maryland Committee Against the Gun Ban, 329 Md. 78 (1993); see also 77 Op. Att'y Gen. 183 (1992) (custodian of an investigatory record containing the name and address of a crime victim would be required under the PIA to consider the assertions of the public interest made by the requester, as well as the privacy interests of the victim); see also Howard v. Alexanderson, Nos. C-13-063914, C-13-063484 (Cir. Ct. Carroll Cty., Jan. 16, 2014) (considering that a requester's intended use may be relevant in an action for a protective order under § 4-358.
Compare8. Confessions
There is no statutory or case law addressing this issue.
Compare9. Confidential informants
Inspection of records, even by a person in interest, that would result in the disclosure of the identity of a confidential information is prohibited. § 4-351(b)(4); see also 4-332(d)(4). But, protecting the identity of a confidential source is not based on the purpose of preventing potential harm to the informant. “Rather, the purpose of the exception is to assist law enforcement officials in gathering information by ensuring reluctant sources that their identities would not be disclosed.” Bowen v. Davison, 135 Md. App. 152, 164 (2000). Accordingly, there must be an express or implied assurance of confidentiality to the informant. Id. at 164
Compare10. Police techniques
A custodian may deny access of investigatory records to a person in interest if, among other things, the disclosure would disclose an investigative technique. § 4-351(b)(5). Inspection of records by a notary public or any other person in interest may be denied if, among other things, the inspection could disclose an investigative technique or procedure. § 4-332(d)(5).
Compare11. Mugshots
In 2007, a Maryland attorney general opinion concluded that mug shots are presumptively open under the public information act. In the opinion, the attorney general addresses the question of whether mug shots fall under the definition of Maryland Criminal History Record Information – and therefore not subject to release. See 92 Op. Att'y Gen. 26 (2007). Mug shots are not mentioned in the CHRI statute as being inherently included or excluded from the CHRI definition. Md. Code, Criminal Procedure § 10-201.
The AG reasoned that the mug shot is more analogous to an investigatory record than a criminal history record because it is used during an investigation and kept for possible future investigations. 92 Op. Att'y Gen.26 (2007). As such, mug shots fall under the purview of § 4-351(a). Id. Therefore, mug shots are open to inspection “unless the custodian can articulate a reason why it would be ‘contrary to the public interest’ to allow inspection of the photograph.” Id; § 4-351(b). The opinion states that “[i]n many, if not most instances, there will be no public interest justifying a refusal to disclose a photograph,” but that there may be times where the public interest may demand the withholding of a mug shot. 92 Op. Att'y Gen.26 (2007). Factors that will be considered include whether the mug shot would reveal a person’s “past encounter with law enforcement” or instances where charges were ultimately dropped or if the photograph depicts particularly embarrassing circumstances or if it may imping on the right of a fair trial or if it may affect an ongoing investigation or put an undercover investigation at risk.
Compare12. Sex offender records
There is no statutory or case law addressing this issue.
Compare13. Emergency medical services records
Medical information, including the symptoms or condition of an individual recorded during a call to 911 to dispatch emergency personnel is protected. 90 Opinions of the Attorney General 45 (2005).
Compare14. Police video (e.g, body camera footage, dashcam videos)
Under M.D.G.P. § 4-101, “a recording” that is “made by a unit or an instrumentality of the State or of a political subdivision,” or received by one while transacting public business, is a “public record.” There are several instances in which denial of body-worn camera footage would be permissible pursuant to M.D.G.P. § 4-351(b), such as when inspection the records would “interfere with a valid and proper law enforcement proceeding; deprive another person of a right to a fair trial or an impartial adjudication; constitute an unwarranted invasion of personal privacy; disclose the identity of a confidential source; disclose an investigative technique or procedure; prejudice an investigation; or endanger the life or physical safety of an individual.” M.D.G.P. § 4-351(a)(4) also permits records custodians to discretionarily withhold records–presumably including body-worn camera footage–“relating to an administrative or criminal investigation of misconduct by a police officer … .” Custodians are furthermore required to redact any records of police misconduct as described in M.D.G.P. § 4-351(a)(4) of medical, personal contact, family, or witness information. While there are restrictions on body-worn camera footage access, police departments in the state appear to make such footage available to request.
Maryland courts have not decided any issues regarding M.P.I.A. access to body-worn camera footage, but the legislature has contemplated codifying certain access principles for these records. In April 2023, a bill died in the Maryland House which sought to exclude from disclosure those parts of body-worn camera recordings that captured domestic violence victims, crime victims, and death of a law enforcement officer, among other situations. The bill also proposed that every individual who is a subject of or directly involved in the recording, or otherwise represents such a person, shall have the right to inspect the footage.
Compare15. Biometric data (e.g., fingerprints)
Compare16. Arrest/search warrants and supporting affidavits
Compare17. Physical evidence
CompareP. Prison, parole and probation reports
The Department of Parole and Probation of the Department of Public Safety and Correctional Services has promulgated regulations that define "sociological data" in the Code of Maryland Regulations ("COMAR") 12.11.02.02B(13). Pursuant to those regulations, generally "sociological data" includes: personal identification information (e.g., income, address, phone number, Social Security number, etc.); family information (e.g., marital status, identity of dependents or relatives, etc.); personal financial information; medical information; personal beliefs and religious preference information; and other types of personal history information. Id. If the agency has adopted rules or regulations that define sociological information, then the custodian shall deny inspection of the part of the public record containing sociological information. § 4-330. The PIA does not delineate the type of information subject to this exemption. Rather, the agency must define what constitutes sociological information by regulation before access to such information may be denied. Id. In addition, information that identifies an individual by an identifying factor is protected from disclosure by § 4-401. Identifying factors include: address, description, finger or voice print, number, or picture. §§ 4-401, -501. However, access may be permitted for research purposes. § 4-501(c)(5)(iv).
CompareQ. Professional licensing records
Although a person's occupational or professional licensing records are generally exempt, the exemption does not apply to that part of a public record that gives the licensee's name, business address (or home address in the absence of a business address), business telephone number, educational and occupational background, professional qualifications, any orders and findings resulting from formal disciplinary actions, and any evidence that has been provided to the custodian to meet the requirements of a statute as to financial responsibility. § 4-333(b). Note that a member of the General Assembly may acquire the names and addresses of and statistical information about individuals who are licensed or, as required by a State law, registered. § 4-103(c).
CompareR. Public utility records
Records of buildings, structures, or facilities that would reveal a particular "building's, structure's, or facility's life, safety, and support systems, surveillance techniques, alarm or security systems or technologies, operational and evacuation plans or protocols, or personnel deployments" and would likely encompass public utilities may be permissibly withheld. § 4-352.
CompareS. Real estate appraisals, negotiations
Compare1. Appraisals
With the exception of the owner of the property, a custodian may deny access to a public record that contains a real estate appraisal of the property until the State or political subdivision acquires title to the property. § 4-349.
Compare2. Negotiations
There is no statutory or case law addressing this issue.
Compare3. Transactions
Real estate transaction information is generally available through Maryland's State Department of Assessments and Taxation website.
Compare4. Deeds, liens, foreclosures, title history
Generally, title information, previous ownership, assessed values and other information pertaining to real property is also available through Maryland's State Department of Assessments and Taxation website. Specific deed and encumbrance information is available through the county land records division in which the property is located or on the Internet at mdlandrec.net.
Compare5. Zoning records
There is no statutory or case law addressing this issue.
CompareT. School and university records
Compare1. Athletic records
There is no statutory or case law addressing this issue.
Compare2. Trustee records
There is no statutory or case law addressing this issue.
Compare3. Student records
Records containing the home address, home phone number, biography, family, physiology, religion, academic achievement, or physical or mental ability of a student are exempt from disclosure, except to the person in interest or an elected or appointed official who supervises the student. § 4-313(a)-(b). A custodian may permit inspection of the home address or home phone number of a student of a public school to an organization of parents, teachers, students or former students of the school; the military; a school board or commission employee confirming the address; a community college representative; or the Maryland Higher Education Commission. § 4-313(c). Disclosures obtained pursuant to § 4-313(c)(1) may not be used for commercial purposes or redisclosed to others who are not authorized to receive the disclosure. § 4-313(c)(2).
The Maryland Court of Appeals has construed the phrase "educational records" as applied in the PIA and the federal Family Rights and Privacy Act (20 U.S.C. § 1232g). See Kirwan v. The Diamondback, 352 Md. 74, 90-91, 721 A.2d. 196, 204-205 (1998). Educational records are those that relate to the student's academic matters or status as a student, e.g., IQ scores, grades, anecdotal comments made by teachers, rating profiles. 352 Md. at 91, 721 A.2d at 204. They do not include all institutional records containing the student's name. Id. Accordingly, institutional records disclosing the names of those students who received traffic citations, for example, are subject to disclosure under both the PIA and the federal Family Rights and Privacy Act. Id.
A representative of the State Department of Education may also examine student records as a certifying agent of the State on matters relating to institutional eligibility to participate in federal Veteran's Administration educational programs. 61 Op. Att'y Gen. 340 (1976). Although the name and address of a student constitutes directory information subject to limited disclosure under the PIA, 59 Op. Att'y Gen. 586 (1974), the Family Education and Privacy Act of 1974, 20 U.S.C. § 1232(g), supersedes the PIA and permits a student or parent to refuse to allow a student's name and address to be released. Further, the dissemination of degree and credit information on teachers in specific school systems is not authorized. 60 Op. Att'y Gen. 600 (1975).
Compare4. School foundation/fundraising/donor records
Compare5. Research material or publications
Compare6. Other
There is no statutory or case law addressing additional records beyond those already discussed.
CompareU. State guard records
There is no statutory or case law addressing this issue.
CompareV. Tax records
Tax information is protected under Tax-General Article, § 13-202 and Tax-Property Article, § 1-301. See MacPhail v. Comptroller, 178 Md. App. 115 (2008). However, non-confidential information about the taxpayer's plans to engage in certain regulated business activities or the taxpayer's authority to collect the retail sales tax and (2) information that cannot be associated with any particular taxpayer must be disclosed to the public upon request. 71 Op. Att'y Gen. 318 (1986). Moreover, the property tax assessment appeal boards to permit any person to inspect any of their records with certain exceptions 62 Op. Att'y Gen. 712 (1977). But the State Department of Assessments and Taxation is barred from permitting inspection of a taxpayer's assessment worksheet by anyone except the taxpayer and the officers of the State and subdivision affected.
CompareW. Vital Statistics
Compare1. Birth certificates
Because birth certificates contain certain of the identifying information delineated in Section 4-101(j), they may not be disclosed. 63 Op. Att'y Gen. 659 (1978); see also § 4-401(a)(1)(ii).
Compare2. Marriage and divorce
A custodian shall deny inspection of the part of an application for a marriage license that contains a Social Security number, except to a person in interest or upon the request of the State Child Support Enforcement Administration. § 4-334(a). Additionally, a court order to seal records in divorce or custody cases would generally override the PIA. PIA Manual, at 3-3.
Compare3. Death certificates
The spouse, adult child, parent, adult sibling, grandparent, or guardian of the person of the deceased at the time of the deceased's death may request corrections to a death certificate. §§ 4-101(g)(3), 4-502; see also Md. Code Ann., Health-Gen Art. § 5-310(d)(2).
Compare4. Infectious disease and health epidemics
Any report on human immunodeficiency virus or acquired immunodeficiency syndrome submitted in accordance with Title 18 of the Health-General Article is exempt from disclosure. § 4-329(b)(3). A request by a person in interest may not be denied, however, by an agency merely because the person seeks the identity of the source of infection, or because the information sought was gathered in the course of an agency's investigation of an outbreak or an infectious disease. See Haigley v. Department of Health and Mental Hygiene, 128 Md. App. 194, 228, 736 A.2d 1185, 1202-03 (1999).
CompareIV. Procedure for obtaining records
CompareA. How to start
Compare1. Who receives a request?
Generally, an applicant must make a written application to the "custodian." § 4-202. "Custodian" is defined in § 4-101(d) to mean the official custodian or any other authorized individual who has physical custody and control of a public record. "Official custodian" is defined in § 4-101(f) to mean "an officer or employee of the State or of a political subdivision who, is responsible for keeping the record, whether or not the officer or employee has physical custody and control of a public record." Thus, responsibilities under the PIA are distributed to each custodian of every unit or instrumentality of the state government or of a political subdivision who has responsibility for keeping public records.
Concluding that there could be no doubt that the procedures of the PIA are in most respects altogether incompatible with the efficient conduct of an audit, the Attorney General has stated that the procedural requirements of the PIA do not apply to the Legislative Auditor's conduct of an audit. See 76 Op. Att'y Gen. 287 (1991).
Compare2. Does the law cover oral requests?
In most circumstances, the Act requires an applicant to submit a written application. § 4-202(a). However, if a request is made for a type of record that has been designated by the official custodian to be made immediately available on request, there is no need for a formal written request. § 4-202(b); see also §4-201(c); see also PIA Manual, at 4-1. As a practical matter, some records may be obtained by oral request, and many agencies permit oral requests. See, e.g., COMAR 28.01.04.06A(1) (Office of Administrative Hearings); COMAR 26.01.04.04 (Department of Environment); and COMAR 29.01.02.04A(1) (Maryland State Police). The Attorney General's Office suggests that agency personnel should not demand a written request when there is no question that the public has a right to inspect the particular record. PIA Manual, at 4-1. The "written application" requirement does not apply to the Legislative Auditor's conduct of an audit. See 76 Op. Att'y Gen. 287 (1991).
Compare3. Required contents of a written request
Compare4. Can the requester choose a format for receiving records?
Compare5. Availability of expedited processing
CompareB. How long to wait
Compare1. Statutory, regulatory or court-set time limits for agency response
The statute provides a mandatory time frame in which the custodian must act upon the application. § 4-203(a). Within thirty days after receiving an application, the custodian must grant or deny the application. Id.; see also Stromberg Metal Works Inc. v. University of Maryland, et al., 382 Md. 151, 155, 854 A.2d 1220, 1223 (2004). Notwithstanding the thirty-day time period, where the right to access is clear, the custodian must act immediately. § 4-203(b)(1); see also PIA Manual, at 4-2. If the application is approved, then the custodian must produce the public record immediately or within a reasonable period that is needed to retrieve the public record, but that period cannot exceed the thirty day time period after receipt of the application. § 4-203(b)(1); see also Prince George's County v. Washington Post Co., 149 Md. App. 289, 308, 815 A.2d 859, 870 (2003). The time limits imposed by § 4-203(a)-(c) may not be extended without the consent of the applicant and in any event may not be extended for more than thirty days. § 4-203(d).
If the application is denied, then the custodian must immediately notify the applicant within 10 working days, give the applicant a written statement that sets forth the reasons for the denial, the legal authority for the denial, and notice of the remedies provided by the PIA for review of the denial. § 4-203(c); see also City of Frederick v. Randall Family, 154 Md. App. 543, 559, 841 A.2d 10, 20 (2004); Prince George's County, 149 Md. App. at 308, 815 A.2d at 870. This 10-day period is in addition to the maximum 30-day or (with an agreed extension) 60-day periods for granting or denying a request. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 158-59, 854 A.2d 1220 (2004); see also PIA Manual, at 4-3.
The PIA previously provided that a custodian must permit inspection of any part of the record that is subject to access and is reasonably severable. See PIA Manual at 3-44. Since the 2015 amendments, however, the statute now states that a custodian who denies an application for a public record must “allow inspection of any part of the record that is subject to inspection.” § 4-203(c)(1)(ii). See Blythe v. State, 161 Md. App. 492, 519, 870 A.2d 1246, 1261, cert. granted, 388 Md. 97, 879 A.2d 42 (2005) (discussing the information a custodian must set forth to satisfy the statutory burden and justify withholding of the record).
If an application is submitted to an individual who is not the custodian, then that individual must, within 10 working days after receiving the application, give the applicant notice of that fact and, if known, the name of the custodian and the location or possible location of the public record. § 4-202(c).
Compare2. Informal telephone inquiry as to status
Informal telephone inquiry as to status may be advisable in some situations and as a practical matter, but it is not required under the statute.
Compare3. Is delay recognized as a denial for appeal purposes?
Because the time limits imposed by the PIA are mandatory, a failure to disclose within the prescribed time period will constitute a denial for purposes of administrative or judicial review. If delay beyond the time requirements set forth in the PIA is unavoidable for practical reasons, the applicant should be advised. § 4-203(b)(3); see also PIA Manual, at 4-4 (discussing steps a custodian should take to avoid a "constructive denial"). If a custodian works with the applicant in good faith and at least meets the 10-day notification requirement of GP § 4-203(b)(2), a reviewing court will likely consider the agency’s failure to produce records within the requisite time period to be a bona fide, rather than a sanctionable violation of the PIA. See GP §§ 4-203(b)(3); 4-362(d)(1). A custodian could also bring the issue to the Public Access Ombudsman to hear and resolve the applicant’s concerns about the timeliness of response. § 4-1B-04(a); PIA Manual, at 4-4. Courts interpreting the federal FOIA have granted extensions in extraordinary cases. See ACLU v. Leopold, 223 Md. App. 97, 124 (2015); Open American v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). A failure to produce requested records within the established time frames does not result in a waiver of any applicable exemptions. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 161 (2004).
Compare4. Any other recourse to encourage a response
Where the delay is beyond the time limits imposed by the PIA, the Public Access Ombudsman is available to resolve disputes relating to requests for public records, including failures to produce a public record in a timely manner. § 4-1B-04(a). An applicant may also resort to judicial review. § 4-362.
CompareC. Administrative appeal
A person or governmental unit may seek administrative review through the Public Access Ombudsman or the State Public Information Act Compliance Board. Legislation that went into effect in July 2022 changed the administrative appeals process and the PIA Compliance Board’s jurisdiction. PIA Manual, at 5-4; 2021 Md. Laws, ch. 658.. Now,requesters must first attempt to mediate their disputes with the Ombudsman, GP § 4-1A-05(a), which does not have the power to compel agencies to disclose records. GP § 4-1B-04(d)(1). If mediation does not resolve the dispute, the requester may then proceed to an appeal to the PIA Compliance Board, which can issue binding orders. GP § 4-1A-04. Previously, the PIA Compliance Board jurisdiction was limited to fee disputes exceeding $350, but the Board now has authority to issue binding decisions over erroneous request denials and untimely responses to PIA requests, as well. GP § 4-1A-04(a)(1).
There is no requirement to bring a dispute to the Ombudsman or file an appeal to the PIA Compliance Board before seeking judicial review. PIA Manual, at 5-4; GP § 4-1A-10(a).
Compare1. Time limit to file an appeal
The statute does not indicate how long a requester has to submit an appeal to the Public Access Ombudsman for mediation. If mediation fails to resolve the matter, the requester has 30 days following receipt of the Ombudsman’s final determination to file a complaint to the PIA Compliance Board. GP § 4-1A-05(b)(5).
Compare2. To whom is an appeal directed?
A dispute over public records must first be directed to the Public Access Ombudsman for mediation. If mediation does not resolve the dispute, the Ombudsman must issue a final determination to that effect. GP § 4-1B-04(c). Upon receipt of this final determination, a requester may seek review from the PIA Compliance Board by filing a written complaint. GP § 4-1A-05.
Compare3. Fee issues
As of July 2022, the Public Access Ombudsman may mediate disputes over a wide range of issues, including the amount of fees (regardless of amount) and the denial of a fee waiver. GP § 4-1B-04(a); PIA Manual, at 5-5. The PIA Compliance Board, however, only has jurisdiction over complaints alleging unreasonable fees in excess of $350 and cannot hear disputes regarding fee waivers. GP § 4-1A-04(a)(1).
Compare4. Contents of appeal
A request for mediation can be submitted to the Public Access Ombudsman via telephone, mail, email, or website submission. COMAR 14.37.02.01. See also https://news.maryland.gov/mpiaombuds/request-mediation. Applicants should, if possible, include a copy of the original PIA request and communications with the custodian. COMAR 14.37.02.02(A). The Ombudsman’s office may also ask for copies of records the custodian produced in response to the PIA request and other documents that would facilitate the mediation process. COMAR 14.37.02.02(B).
Complaints to the PIA Compliance Board must be submitted in writing by mail or email. GP § 4-1A-05; COMAR 14.02.02.01. See also https://www.marylandattorneygeneral.gov/Pages/OpenGov/piacb_procedures.aspx. The requester or designated representative should file a signed complaint that, at minimum, identifies the custodian and describes the relevant circumstances, including the custodian’s actions. GP § 4-1A-05; COMAR 14.02.02.01. The complaint should include a copy of the original PIA request and the custodian’s response, if available. GP § 4-1A-05.
Compare5. Waiting for a response
The Public Access Ombudsman must issue a final determination within 90 calendar days after receiving a request for dispute resolution, unless the parties mutually agree to extend the deadline. GP § 4-1B-04(b).
The PIA Compliance Board must issue a written decision within 120 days, at latest. GP § 4-1A-07(c)(1). Once the Board receives a complaint, it must promptly send the complaint to the relevant custodian and request a response, which is due within 30 calendar days GP § 4-1A-06(b)(1); COMAR 14.02.02.03. If the custodian does not respond within 30 days, the Board will proceed to rule on the facts presented in the complaint. GP § 4-1A-06(c); COMAR 14.02.02.05. The Board may also, in its discretion, allow the complainant to submit a reply, which must be filed within 15 days of receiving the response. COMAR 14.02.02.04 and 14.02.03.04. If the information in the complaint, response, and reply is sufficient for making a determination, the Board will issue a written opinion within 30 days after receiving the custodian’s response. GP § 4-1A-07(a); COMAR 14.02.07.02. If that information is insufficient, the Board may convene an informal conference and then issue its opinion within 30 days following the conference. GP § 4-1A-07(b). If the Board is unable to issue an opinion within these specified time periods, the Board must state in writing the reason for its inability to issue a timely opinion and then issue an opinion as soon as possible but no later than 120 days after the filing of the complaint. GP § 4-1A-07(c)(1).
Compare6. Subsequent remedies
Decisions of the Board may be appealed to the circuit court. GP § 4–362. An appeal to the circuit court automatically stays the decision of the Board pending the circuit court’s decision. GP § 4-1A-10(b).
CompareD. Additional dispute resolution procedures
Compare1. Attorney General
The Office of the Attorney General also periodically issues advisory opinions regarding compliance with the PIA. See PIA Manual and http://www.marylandattorneygeneral.gov/Pages/Opinions/index.aspx for opinions cited therein.
Compare2. Ombudsperson
See above regarding mediation before the Public Access Ombudsman.
Compare3. Other
CompareE. Court action
Compare1. Who may sue?
The person or governmental unit denied access to a public record may file a complaint with the circuit court for the county where the complainant resides or has a principal place of business or where the public record is located. § 4-362(a); Attorney Grievance Comm'n v. Abell, 294 Md. 680, 452 A.2d 656 (1982). Blythe v. State, 161 Md. App. 492, 505, 870 A.2d 1246, 1253, cert. granted, 388 Md. 97, 879 A.2d 42 (2005).
Compare2. Priority
Except for cases that the court considers of greater importance, the court will give records questions precedent on the docket, hear records questions at the earliest practicable date, and expedite any decision concerning records questions in every way. § 4-362(c).
Compare3. Pro se
Because the defendant in such an action has the burden of justifying a decision to deny inspection of a public record, § 4-362(b)(2), the possibility of an applicant proceeding pro se is heightened. However, in light of the somewhat technical exemptions set forth in the PIA, proceeding on a pro se basis may not be advisable.
Compare4. Issues the court will address
Comparea. Denial
The court may address all issues relating to denial of access to the public record, as well as review decisions issued by the State Public Information Act Compliance Board. See § 4-362. Prince George's County v. Washington Post Co., 149 Md. App. 289, 314, 815 A.2d 859, 873 (2003).
Compareb. Fees for records
The court may address fee issues. See Mayor of Baltimore v. Burke, 67 Md. App. 147, 506 A.2d 683 (1986).
Comparec. Delays
Because a delay beyond the statutory time limits may constitute a denial, the court may address issues related to delay as well. § 4-203(b)(3).
Compared. Patterns for future access (declaratory judgment)
If an agency has frustrated judicial review by presenting testimony or affidavit in conclusory form, the trial court may, depending upon all of the circumstances, appropriately exercise its discretion by ordering more detailed affidavits or by conducting an in-camera inspection, or simply by ordering disclosure because of the agency's failure to meet its burden of satisfying the court that an exemption applies. See § 4-362(c)(2); Epps v. Simms, 89 Md. App. 271, 598 A.2d 756 (1991); Cranford v. Montgomery County, 300 Md. 759, 481 A.2d 221 (1984).
The ultimate standard for determining whether an in-camera inspection is to be made is whether the trial judge believes that it is needed in order to make a responsible determination on claims of exemptions. Epps, 89 Md. App. 271, 598 A.2d 756. Factors that may be involved in determining whether an in-camera inspection is necessary include: (1) judicial economy; (2) conclusory nature of the agency affidavits; (3) bad faith on the part of the agency; (4) disputes concerning the contents of the document; (5) whether the agency has proposed in-camera inspection; and (6) the strength of public interest in disclosure. Id. The court has the power to issue injunctions or institute disciplinary actions. See § 4-362(c)(3) and (e); Equitable Trust Co. v. State, Comm'n on Human Relations, 42 Md. App. 53, 399 A.2d 908 (1979), rev'd on other grounds 287 Md. 80, 411 A.2d 86 (1980).
Compare5. Pleading format
The complainant files a complaint with the circuit court and the defendant files an answer or otherwise pleads to the complaint within thirty days after service of the complaint. § 4-362(a) and (b). The defendant may submit a memorandum in support of its decision to deny access. § 4-362(b)(2)(ii).
Compare6. Time limit for filing suit
Any action for judicial review may be brought within two (2) years of the denial pursuant to Md. Code Ann., Cts. & Jud. Proc. § 5-110. See Kline v. Fuller, 56 Md. App. 294, 467 A.2d 786 (1983). If the defendant has materially and willfully misrepresented any information required to be disclosed under the PIA, and the information so misrepresented is material to the establishment of liability of the, the action may be brought at any time within two years after discovery of the misrepresentation. Cts. & Jud. Proc. § 5-110.
Compare7. What court?
The person or governmental unit denied access to a public record may file a complaint with the circuit court for the county where the complainant resides or has a principal place of business or where the public record is located. § 4-362(a)(3); Attorney Grievance Comm'n v. Abell, 294 Md. 680, 452 A.2d 656 (1982).
Compare8. Burden of proof
Compare9. Judicial remedies available
Compare10. Litigation expenses
Comparea. Attorney fees
The court may award fees when the complainant has “substantially prevailed.” Md. Code, Gen Provisions § 4-362(f). The awarding of attorney fees lies with the discretion of the trial court. Caffrey, 370 Md. at 299. When the condition that the plaintiff "substantially prevail" is met, the court must exercise its discretion in determining whether an award of fees is appropriate. Kirwan v. The Diamondback, 352 Md. 74, 95, 721 A.2d 196, 206 (1998). The PIA offers no guidance for the exercise of that discretion. However, the Maryland Court of Appeals has held that the trial court must consider the following non-exclusive factors: (1) the public benefit derived from the suit; (2) the nature of the complainant's interest in the released information; (3) whether the agency had a reasonable legal basis for withholding the information. 352 Md. at 96, 721 A.2d at 207, citing with approval, Kline v. Fuller, 64 Md. App. 375, 386, 496 A.2d 325, 331 (1985).
Compareb. Court and litigation costs
Reasonable court costs actually incurred are also recoverable. § 4-362(f).
Compare11. Fines
Compare12. Other penalties
Compare13. Settlement, pros and cons
CompareF. Appealing initial court decisions
Compare1. Appeal routes
An appeal of a Circuit Court ruling must first be taken to the Maryland Court of Special Appeals, which must accept the appeal. Further appeal is available then to the Court of Appeals, which has the discretion to accept or reject review. See Md. Rule § 8-301; see also Baltimore Sun Co. v. Mayor and City Council of Baltimore, 359 Md. 653, 755 A.2d 1130 (2000).
In some cases where a court orders a custodian to detail each record withheld or redacted in order to justify the decision the Maryland Court of Appeals has clarified that such orders are nonetheless immediately appealable as an appeal of an order granting injunctive relief. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 128, 737 A.2d 592, 597 (1999); see also Blythe v. State, 161 Md. App. 492, 521 (2005).
Compare2. Time limits for filing appeals
The time limit for filing an appeal is thirty days after the entry of a final judgment. Md. Rule 8-202.
Compare3. Contact of interested amici
Any parties interested in submitting amicus curiae briefs may contact the law firm of Saul Ewing Arnstein & Lehr LLP, 500 East Pratt Street, Baltimore, Maryland 21202.
The Reporters Committee for Freedom of the Press frequently files friend-of-the-court briefs in open records cases being considered at the highest appeal level in the State.
CompareG. Addressing government suits against disclosure
CompareOpen Meetings
CompareI. Statute - basic application
CompareA. Who may attend?
The general public is entitled to attend an open session meeting of a public body. § 3-303(a).
The public body, however, may adopt "reasonable" rules concerning the conduct of those attending the meeting. § 3-303(b). Such rules may address the videotaping, televising, photographing, broadcasting, or recording of its meetings. Id.
CompareB. What governments are subject to the law?
As "public bodies", state, county or municipal governments of Maryland are subject to the Act. § 3-101(h).
Compare1. State
Entities consisting of at least two persons and created by the Maryland Constitution, a state statute, ordinance, rule, resolution, bylaw or an executive order of the Governor are public bodies subject to the Act. § 3-101(h)(1). In addition, public bodies include all multimember boards, commissions or committees appointed by the Governor or chief executive authority of a political subdivision of the State, or appointed by an official who is subject to the policy direction of the Governor or chief executive authority, if the entity consists of two or more persons not employed by the state. § 3-101(h)(2)(i). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii). Judicial nominating commissions, grand juries, the Appalachian States Low Level Radioactive Waste Commission, the Governor's cabinet, the Governor’s Executive Council or any committee of the Executive Council are specifically exempt from the Act. § 3-101(h)(3).
Compare2. County
Entities consisting of at least two individuals and created by a county charter, ordinance, rule, resolution or bylaw, or by an executive order of the chief executive authority of a political subdivision of the State are "public bodies" subject to the provisions of the Act. § 3-101(h)(1). In addition multimember boards, commissions or committees appointed by the chief executive authority of a political subdivision of the State and having at least two individuals not employed by the subdivision are also public bodies. § 3-101(h)(2). However, a local government's counterpart to the Governor’s cabinet, Executive Council or any committee of the counterpart of the Executive Council are specifically exempt. § 3-101(h)(3).
Compare3. Local or municipal
Entities consisting of at least two individuals and created by a municipal charter, ordinance, rule, resolution or bylaw, or by an executive order of the chief executive authority of a political subdivision of the State are "public bodies" subject to the provisions of the Act. § 3-301(h)(1). In addition multimember boards, commissions or committees appointed by the chief executive authority of a political subdivision of the State and having at least two individuals not employed by the subdivision are also public bodies. § 3-301(h)(2). However, a local government's counterpart to the Governor’s cabinet, Executive Council or any committee of the counterpart of the Executive Council are specifically exempt. § 3-301(h)(3).
CompareC. What bodies are covered by the law?
As a general rule, all "public bodies" are subject to the Act. § 3-301. A public body is defined as an entity that consists of two or more individuals and is created by the Maryland Constitution, state statute, county charter, ordinance, rule, resolution or bylaw, executive order of the Governor, or executive order of the chief executive of a political subdivision of the State. § 3-101(h)(1). A public body also includes any multimember board, commission, or committee appointed by the Governor or the chief executive authority of a political subdivision of the State, if the entity includes in its membership at least two individuals who are not employed by either the State or political subdivision of the State. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii).
However, the Act's scope is narrowed to exclude those public bodies that are carrying out executive, judicial, or quasi-judicial functions, unless the meeting concerns granting permits or licenses or the consideration of zoning matters. § 3-103(a)(1). Chance meetings, social gatherings, "or other occasion[s] . . . not intended to circumvent [the Act]" are also expressly excluded from its coverage. § 3-103(a)(2).
Once it is determined whether or not an entity is a public body for the purposes of the Act, it matters little where among the branches of government an entity resides. Rather, the Act's applicability depends on the function that the entity is performing when holding a meeting. See Board of County Comm'rs v. Landmark Community Newspapers, 293 Md. 595, 602-05, 446 A.2d 63 (1982). Prior to the 1991 amendment, the Act required open meetings for public bodies engaged in legislative, quasi-legislative or advisory functions. Md. Code Ann., State Gov't § 10-505 (1984) (repealed 1992). The new language simply states that "[e]xcept as otherwise expressly provided . . . a public body shall meet in open session." § 3-301. However, the current version, like the repealed version, makes the Act inapplicable to public bodies that are carrying out administrative, judicial, or quasi-judicial functions. § 3-103(a)(1).
Compare1. Executive branch agencies
Certain executive bodies are expressly excluded from the Act's definition of public bodies. See § 3-101(h)(3). Among the more important exclusions are single member entities, the governor's Cabinet and Executive Council or a local jurisdiction's counterpart, and courts, except when exercising rulemaking power. Id. See § 3-101(h)(3) for the complete listing of excluded bodies.
Comparea. What officials are covered?
To the extent that governmental officials are members of a public body not exempt under the Act, they are subject to its provisions; however, the Act only covers entities comprised of two or more individuals. § 3-101(h). All members of such a public body are covered regardless of whether they are governmental employees. § 3-101.
Compareb. Are certain executive functions covered?
The Act generally does not apply to a public body when it exercises an administrative function. § 3-103(a)(1)(i). The term "administrative function" means the administration of a state, county, or local law, or a rule, regulation, or bylaw of a public body. § 3-101(b)(1); see also Dyer v. Bd. of Educ., 216 Md. App. 530, 538 (2014) (administering a law can include applying existing regulations to a particular set of facts to resolve a complaint). Administrative function does not include an advisory, judicial, quasi-judicial, legislative, or quasi-legislative function. § 3-101(b)(2). However, if the body is considering granting permits or licenses or is considering zoning matters, the function is within the scope of the Act. § 3-103(b); see also Tuzeer v. Yim, LLC, 201 Md. Appl 443 (2011) (regarding use permit); Handley v. Ocean Downs, LLC, 151 Md. App. 615 (2003) (regarding special exception). The former Act did not expressly include these specific functions. See also Compliance Board Opinion 01-07, 28:11 Md. Reg. 1015 (May 8, 2001) (the mere existence of a law does not mean that every action pursuant to that law is an "administrative function." Rather, the action must be administrative in character as opposed to policy-making to qualify).
Comparec. Are only certain agencies subject to the act?
With respect to executive agencies, the Act specifically excludes the governor's Cabinet, Executive Council, or a committee of the Executive Council. § 3-101(h)(3). It also excludes the local counterparts to these State bodies. Id. The Act also excludes judicial nominating commissions. Id. Moreover, to the extent that executive agencies exercise only administrative, judicial or quasi-judicial functions, they are excluded from the Act. § 3-103(a).
Compare2. Legislative bodies
Legislative bodies are subject to the Act unless they are performing administrative, judicial, or quasi-judicial functions. §§ 3-101(h), 3-103(a).
Compare3. Courts
Most court functions fall outside the scope of the Act, including the exercise of those powers provided by Article IV, § I of the Maryland Constitution and the functions of grand juries, petit juries, the Commission on Judicial Disabilities, and judicial nominating commissions. §§ 3-101(e)(2), 3-103(a). However, the Act does apply to the courts when they are exercising their power to adopt court rules (considered a quasi-legislative function). §§ 3-101(e)(3), 3-101(j)(1). The Maryland Court of Appeals recently affirmed, however, the longstanding common law principle of openness regarding public access to court proceedings. The Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 755 A.2d 1130 (2000). Trials and court proceedings are presumptively open and a trial court's decision to close the courtroom for the purpose of allowing the parties to put the terms of their confidential settlement agreement on the record was clearly erroneous. Id. The courtroom would only be closed pursuant to an express provision of a statute or a rule promulgated by the Court of Appeals. The parties' mutual desire for confidentiality was insufficient. Id.
Compare4. Nongovernmental bodies receiving public funds or benefits
If the entity is a public body as defined by the Act, it is subject to the provisions of the Act, unless it is exercising an administrative, judicial or quasi-judicial function. § 3-103(a). The Act expressly applies to public bodies that are considering zoning matters or the granting of licenses or permits. § 3-103(b); see also Tuzeer v. Yim, LLC, 201 Md. Appl 443 (2011) (regarding use permit); Handley v. Ocean Downs, LLC, 151 Md. App. 615 (2003) (regarding special exception). The Act applies to any multimember board, commission, or committee, appointed by the Governor or the chief executive authority of a political subdivision of the State, if the entity includes in its membership at least two individuals not employed by the State or political subdivision of the State. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii). However, the fact that a private entity receives or administers government funds is alone not dispositive. For example, the OMCB concluded that a private entity that provided services to a government agency and was regulated by that agency was not a “public body.” Id. at 204; but see Andy’s Ice Cream v. City of Salisbury, 125 Md. App. 125, 154-55 (1999) (finding that a private corporation organized under government control and carrying on a public business is at least quasi-governmental and should be subject to the open meetings law). To resolve such uncertainties, the OMCB considers whether the privately-incorporated entity is subject to the control of a governmental entity, such as when a governmental entity has the power to dissolve the privately-incorporated entity or appoint its board. 9 OMCB Opinions 246, 252-54 (2015) (discussing cases).
Compare5. Nongovernmental groups whose members include governmental officials
If the entity is a public body as defined by the Act, it is subject to the provisions of the Act, unless it is exercising an administrative, judicial or quasi-judicial function. § 3-103(a). Such bodies include any multimember board, commission, or committee, appointed by the Governor or the chief executive authority of a political subdivision of the State, if the entity includes in its membership at least two individuals not employed by the State or political subdivision of the State. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii). But see Compliance Board Opinion 00-9 27:22 Md. Reg. 2048 (Oct. 10, 2000) (ad hoc assemblage of state and local officials who discuss proposed development not subject to the Act absent legal enactment authorizing such a committee).
Compare6. Multi-state or regional bodies
Under the Act's definition of a public body, it appears to only be applicable to state or local public bodies. See § 3-101(h); cf., C.T Helmuth and Assocs. v. Washington Metro Area Trans. Auth., 414 F. Supp. 408, 409 (D. Md. 1976) (holding that interstate transit authority is not subject to the Act absent some agreement between the states to an interstate compact). The Appalachian States Low Level Radioactive Waste Commission has been expressly exempt from the Act. § 3-101(h)(3)(v).
Compare7. Advisory boards and commissions, quasi-governmental entities
The Act is applicable to all public bodies, unless they are performing administrative, judicial or quasi-judicial functions. § 3-103(a). Such bodies include any multimember board, commission, or committee, appointed by the Governor or the chief executive authority of a political subdivision of the State, if the entity includes in its membership at least two individuals not employed by the State or political subdivision of the State. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii).
Compare8. Other bodies to which governmental or public functions are delegated
Although the entity may have a public purpose (i.e., carrying out an advisory or quasi-legislative function), it is not subject to the Act unless it is a public body as defined by the Act. § 3-101(h). Thus, for example, a University of Maryland task force that was not created by a rule, resolution, or bylaw of the Board of Regents of the University, but was created as an investigatory body wholly under the province of the Chancellor was not a public body subject to the Act. A. S. Abell Publishing Co. v. Board of Regents, 68 Md. App. 500, 514 A.2d 25 (1986). Recent amendments have expanded the definition of public bodies to include any multimember board, commission, or committee, appointed by the Governor or comparable local chief executive, that includes at least two individuals not employed by the State or a local jurisdiction. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii).
Compare9. Appointed as well as elected bodies
The Act is applicable to all public bodies, unless they are performing administrative, judicial or quasi-judicial functions. § 3-103(a). Such bodies include any multimember board, commission, or committee, appointed by the Governor or the chief executive authority of a political subdivision of the State, if the entity includes in its membership at least two individuals not employed by the State or political subdivision of the State. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii); see also Andy's Ice Cream v. Salisbury, 125 Md. App. 125, 146, 724 A.2d 717, 727 (1999) (a nonprofit zoo commission, whose members were appointed by the Mayor and City Council is a public body subject to the Act).
CompareD. What constitutes a meeting subject to the law
Compare1. Number that must be present
To "meet" under the Act means to convene a quorum of the members of a public body to consider or transact public business. § 3-101(g). A "quorum" means a majority of the members of a public body or any different number required by law. § 3-101(k); see also 9 OMCB Opinions 307, 310 (2015) (concluding that a bylaw alone is not a “law” that would exempt a particular body from the Act’s definition of a quorum). A meeting consisting of less than a quorum may be subject to the Act if an intent to circumvent the Act can be proved. See § 3-103(a)(2).
Comparea. Must a minimum number be present to constitute a "meeting"?
A quorum must be present to constitute a meeting. § 3-101(g).
Compareb. What effect does absence of a quorum have?
If there is no quorum, then the body has not “met” under the provisions of the Act, and the Act does not, therefore, apply. OMA Manual, at 1-7. A meeting consisting of less than a quorum may be subject to the Act if an intent to circumvent the Act can be proved. § 3-103(a)(2).
Compare2. Nature of business subject to the law
Comparea. "Information gathering" and "fact-finding" sessions
In 1991, emphasis was shifted away from what functions are covered by the Act to what functions are not within its scope. All public bodies are required to meet in open session unless they are performing administrative, judicial or quasi-judicial functions. § 3-103(a). This, in effect, leaves the legislative, quasi-legislative or advisory functions of public bodies subject to the Act. See §§ 3-101, 3-103.
Legislative function is defined by the Act to include the process of: (1) approving, disapproving, enacting, amending, or repealing a law or other measure to set public policy; (2) approving or disapproving an appointment; (3) proposing or ratifying a constitution, constitutional amendment, charter or charter amendment. § 3-10102(f). Quasi-legislative function is defined adopting, disapproving, amending, or repealing a rule (including court rules), regulation or bylaw that has the force of law; or approving, disapproving or amending a budget or contract. § 3-101(j). Advisory function is "the study of a matter of public concern or the making of recommendations on the matter, under a delegation of responsibility by: (1) law; (2) the Governor or an official who is subject to the policy direction of the Governor; (3) the chief executive officer of a political subdivision of the State or an official who is subject to the policy direction of the chief executive officer; or (4) formal action by or for a public body. § 3-101(c). To the extent that information gathering falls within the scope of these definitions, then information gathering meetings would not be subject to the Act.
Compareb. Deliberation toward decisions
In 1991, emphasis shifted away from what functions are covered by the Act to what functions are not within its scope. All public bodies are required to meet in open session unless they are performing administrative, judicial or quasi-judicial functions. § 3-103(a). This, in effect, leaves the legislative, quasi-legislative or advisory functions of public bodies subject to the Act. See §§ 3-101, 3-103. Note, however, that the Attorney General has opined that certain statutory provisions duplicative of the Act may be repealed as part of code revision without effecting a substantive change in the law; however, any such provision that states "no ordinance, resolution, rule, or regulation shall be finally adopted at [a meeting not open to the public]" should be retained. 94 Op. Att'y Gen. 161 (2009).
The public has the right to observe the deliberative process and the making of decisions by a public body at open meetings. § -3-102; City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980); cf., Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n, 125 Md. App. 579, 726 A.2d 807 (1999), vacating as moot, 364 Md. 353, 772 A.2d 1239 (2001) (hospital advised sufficient evidence to withstand motion for summary judgment made on the basis that there had been no violation of the Act); see also 65 Op. Att'y Gen. 396 (1980) (Thoroughbred Racing Board meeting to decide whether to permit Sunday racing was quasi-legislative function subject to access); 65 Op. Att'y Gen. 208 (1979) (decision by the State Lottery Commission to increase prize payout to daily lottery winners constituted an exercise of a legislative function under the Act).
Regardless of functional label, any deliberative process concerning the granting of a license or permit or regarding a zoning matter shall be within the scope of the Act's requirements. § 3-103(b); see also Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 147, 699 A.2d 434, 445 (1997) (discussing the scope of the phase "other zoning matter" as used in the Act, and holding that zoning board's deliberations of a development plan were subject to the Act).
Compare3. Electronic meetings
Comparea. Conference calls and video/Internet conferencing
A telephone conference call in which a quorum of members is conducting business simultaneously is a "meeting" that must comply with the Act. OMA Manual, at 1-8; but see 7 OMCB Opinions 193 (2011) (sequential or written communications among members does not constitute a meeting and, therefore, the Act would not apply). Thus, if a public body meets via telephone or video conference, it must afford the public access to the discussion. Such access might include a speaker-phone available at a previously announced location. See OMA Manual, at 3-3; see also Tuzeer v. Yim, LLC, 201 Md. App. 443, 471 (2011).
Compareb. E-mail
The Act does not address communication that may occur via e-mail. As discussed in the OMA Manual, while sequential e-mail communications, to the extent they can be analogized to an exchange of information via regular mail, are not subject to the Act, an online discussion in which a quorum of a public body participates on a “near-simultaneous basis” could be construed to be a “meeting” under the Act. OMA Manual, at 1-10. The OMCB has opined on the factors a court would likely consider in addressing whether an e-mail exchange was a “meeting,” including the number of participants involved, the number of communications, the time frame within which the communications occurred, and the extent the communications reflected “conversation-like interactions.” 9 OMCB Opinions 259, 265 (2015).
Comparec. Text messages
There is no statutory or case law addressing this issue. But see 9 OMCB Opinions 259, 265 (2015) (discussing likely treatment of electronic communications by the courts and the factors to be considered).
Compared. Instant messaging
There is no statutory or case law addressing this issue. But see 9 OMCB Opinions 259, 265 (2015) (discussing likely treatment of electronic communications by the courts and the factors to be considered).
Comparee. Social media and online discussion boards
There is no statutory or case law addressing this issue. But see OMA Manual, at 1-10 (discussing the participation of a quorum in near-simultaneous electronic communications); 9 OMCB Opinions 259, 265 (2015) (discussing likely treatment of electronic communications by the courts and the factors to be considered).
CompareE. Categories of meetings subject to the law
Compare1. Regular meetings
Comparea. Definition
The Act makes no distinction between regular, special, emergency, formal or informal meetings. See City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980); but see § 3-302.1(b) (requiring that a public body must make available, upon request, the agenda of a meeting called in response to an emergency, natural disaster, or other unanticipated situation).
Compareb. Notice
Before meeting in open or closed session, the public body must give reasonable advance notice. § 3-302; see also Malamis v. Stein, 69 Md. App. 221, 516 A.2d 1039 (1986); City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980); 64 Op. Att'y Gen. 20 (1979). The Act does not provide a specific time limit for giving notice, but "adequate" and "reasonable advance notice" is required. §§ 3-102(c), 3-302(a); CLUB v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804 (2003); see also OMA Manual, at 2-2. The General Assembly recognizes that sometimes meetings have to be held on short notice, and the Compliance Board has ruled that, "absent evidence that a public body scheduled a meeting primarily to foil the public's right to attend and observe, the Compliance Board ordinarily will accept the determination . . . that a meeting is needed at a particular time." OMA Manual, at 20. (citing 4 OMCB Opinions 51, 56 (2004).
Units of the state government may publish notice in the Maryland Register. § 3-302(c)(1). For other public bodies, notice may be given by delivery to members of the news media who regularly report on such matters, or by any other reasonable method. §§ 3-302(c)(2), 3-302(c)(4).
Posting notice at a convenient public location at or near the place of the session is permitted provided that the public body has given public notice that this method will be used. § 3-3026(c)(3). A public body shall keep a copy of all notices provided under § 3-302 for at least one year after the date of the session. § 3-302(d).
The notice is required to be in writing and must include the date, time, and place of the session. § 3-302(b). A public body must make available before meeting in an open session an agenda that contains “known items or business topics to be discussed’ and indicates whether any portion of the meeting will be closed. § 3-302.1. If the agenda has been determined at the time of notice, the agenda shall be made available along with the notice. § 3-302.1(a)(2). In any event, a public body must make the agenda available as soon as practicable and no later than 24 hours before the meeting. § 3-302.1(a)(3). The public body need not include information related to the portion of the agenda that is closed. § 3-302.1(c). The method(s) used for making an agenda available may be different from the method(s) used to provide notice. § 3-302.1(d).
The notice shall, when reasonable and if appropriate, state that all or part of the meeting may be conducted in closed session. § 3-302(b)(3). Notice has been found sufficient, even though not formal, where information was conveyed to the press and advance notice of the meeting had been given to the public. 64 Op. Att'y Gen. 20 (1979).
The Act provides two venues for redress for persons adversely affected by a public body's failure to comply with the Act's requirements, the Circuit Court and the OMCB.
Under the first, an adversely affected person may file a petition in the circuit court having proper venue, seeking declaratory relief, injunctive relief, a ruling that voids the action of the body altogether, or any other remedy that the court deems appropriate. § 3-401(b). In an action pursuant to the Act, the public body is presumed to have complied with the Act and the complainant has the burden of proving violation vel non. § 3-401(c); see also Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n, 125 Md. App. 579, 588-89, 726 A.2d 807, 811 (1999). Injunctions and declaratory relief are available without proof that the violation was willful. 125 Md. App. at 590, 726 A.2d at 812. If the violation was willful, however, and no other remedy is adequate, the court may void the final action of the public body. § 3-401(d)(4); see also 125 Md. App. at 590, 726 A.2d at 812. "Willfully" under § 3-401(d), has been defined by the Maryland Court of Special Appeals as "non-accidentally," and not requiring knowledge that the meeting actually violates the Act. 125 Md. App. at 596-97, 726 A.2d at 815.
The court may also award attorneys' fees and expenses to the prevailing party. § 10-510(d)(5). Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 150, 699 A.2d 434, 447 (1997). A prevailing party is not automatically entitled to recover its fees, however, nor does the fact of prevailing create a presumption in favor of a fee award. Baltimore County v. Wesley Chapel Bluemount Ass'n, 128 Md. App. 180, 189, 736 A.2d 1177, 1183 (1999). The prevailing party need not prove that the public body acted willfully in order to succeed on its attorneys' fees claim. Id.; see also Suburban Hospital Inc., 125 Md. App. 579, 591, 726 A.2d 807, 812 (1999). Rather, in determining whether a fee award is appropriate, the court is to consider a variety of factors, including the public body's basis for closing the session, its degree of willfulness (if present), whether the issue of the applicability of the Act required appellate review, and the benefit to the parties and the public in resolving the issue. Id.
A public body that willfully convenes a closed meeting with knowledge that the meeting is held in violation of the Act is subject to a civil penalty not to exceed $250 for the first violation and $1,000 for each subsequent violation occurring within 3 years after the first violation. § 3-402. The Maryland Court of Special Appeals, in this context, has noted that a higher level of violative conduct is required under § 3-402 because that provision imposes a more "personally intrusive penalty" on members of the public body than the "general curative remedies established by § [3-401] for the public body as a whole." Suburban Hospital, 125 Md. App. at 592, 726 A.2d at 813.
Alternatively, any person may file a complaint regarding a past or anticipated future violation of the Act by a public body with the OMCB. §§ 3-205 through 3-212. Upon consideration of the complaint and response, the Board will render an opinion concerning the propriety of the body's action. § 3-207. Its opinion cannot compel action by the public body, is solely advisory, and may not be used as evidence in a subsequent judicial proceeding. §§ 3-209 to 3-211. If the complaint concerns an anticipated future violation, the Act provides an expedited procedure for Board review. § 3-212.
Comparec. Minutes
The Act requires a public body to prepare minutes of the meeting as soon as practicable after it meets. § 3-306(b)(1). The minutes must include each item considered, the action taken by the public body on each item, and each recorded vote. § 3-306(c). Minutes are not required if live and archived video or audio streaming of the open session is available or if the public body votes on legislation and the individual votes of each member participating or posted promptly online. § 3-306(b)(2).
The minutes are considered public records and shall be open to public inspection during ordinary business hours. § 3-306(d). The minutes must be maintained for at least 5 years after the date of the meeting. § 3-306(e)(1). To the extent practicable, the minutes should be posted online. §3-306(e)(2).
2. Special or emergency meetings
The Act makes no distinction between regular, special, emergency, formal, or informal meetings. See City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980); but see § 3-302.1(b) (requiring that a public body must make available, upon request, the agenda of a meeting called in response to an emergency, natural disaster, or other unanticipated situation).
Comparea. Definition
N/A.
Compareb. Notice requirements
N/A.
Comparec. Minutes
N/A.
Compare3. Closed meetings or executive sessions
Comparea. Definition
The Act permits sessions closed to the public under certain circumstances and permits the adjournment of an open session to a closed session. § 3-305(b). The presiding officer of the body must conduct a recorded vote on closing a meeting. § 3-305(d)(2)(i). A meeting may not be closed unless a majority of the body's members is present and votes in favor of closing the meeting. § 3-305(d)(1). The presiding officer must prepare a written statement of the reason for closing the meeting citing the authority that is the basis for closure and listing the topics to be discussed at the meeting. § 3-305(d)(2)(ii). Handley v. Ocean Downs, 151 Md. App. 615, 633, 827 A.2d 961, 972 (2003). Failure of a body to comply with these requirements provides a basis for declaratory or injunctive relief. See Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n., 125 Md. App. 579, 589, 726 A.2d 807, 812, n.3 (1999). The body is required to send a copy of this statement to the OMCB if a person objects to the closing of a session. § 3-305(d)(3). The written statement will become a matter of public record. § 3-305(d)(4).
Compareb. Notice requirements
The Act requires notice of all meetings subject to its provisions, whether or not they are closed. § 3-302(a). No special notice, provisions are required prior to conducting a closed meeting. However, prior to closing the meeting, the public body must publicly vote to do so and must provide a written statement of the reasons for closure. § 3-305(d). Additionally, the reopening of a previously closed meeting requires a good-faith effort to notify the press and public of the changed status of the meeting. See 03 OMCB 01-115 (2001). Further, the Act is violated if a meeting is open in name but not in reality. Id. (citing prior opinions).
Before meeting in open or closed session, the public body must give reasonable advance notice. § 3-302(a); see also Malamis v. Stein, 69 Md. App. 221, 516 A.2d 1039 (1986); City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980); 64 Op. Att'y Gen. 20 (1979). The Act does not provide a specific time limit for giving notice, but "adequate" and "reasonable advance notice" is required. §§ 3-102(c), 3-302(a).
There are no special notice requirements for closed meetings. Units of the state government may publish notice in the Maryland Register. § 3-302(c)(1). For other public bodies, notice may be given by delivery to members of the news media who regularly report on such matters, or by any other reasonable method. §§ .3-302(c)(2), (c)(4).
Posting notice at a convenient public location at or near the place of the session or online at a website ordinarily used by the public body to provide information to the public is permitted provided that the public body has previously used such methods to provide public notice. § 3-3-302(c)(3).
The notice is required to be in writing and must include the date, time, and place of the session. § 3-302(b). A statement of the reasons for closing the meeting, authority for doing so, and a listing of the topics to be discussed must be made prior to closing the meeting. § 3-305(d)(2)(ii). A public body shall keep a copy of the written statement for at least one year after the date of the session. § 3-305(d)(5).
The notice shall, when reasonable and if appropriate, state that all or part of the meeting may be conducted in closed session. § 3-302(b)(3). A statement of the reasons for closing the meeting, authority for doing so, and a listing of the topics to be discussed must be made prior to closing the meeting. § 3-305(d)(2)(ii). Notice has been found sufficient, even though not formal, where information was conveyed to the press and advance notice of the meeting had been given to the public. 64 Op. Att'y Gen. 20 (1979).
The Act provides two venues for redress for persons adversely affected by a public body's failure to comply with the Act's requirements, the Circuit Court and the OMCB.
Under the first, an adversely affected person may file a petition in the circuit court having proper venue, seeking declaratory relief, injunctive relief, a ruling that voids the action of the body altogether, or any other remedy that the court deems appropriate. § 3-401(b). In an action pursuant to the Act, the public body is presumed to have complied with the Act and the complainant has the burden of proving violation vel non. § 3-401(c); see also Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n, 125 Md. App. 579, 588-89, 726 A.2d 807, 811 (1999). Injunctions and declaratory relief are available without proof that the violation was willful. 125 Md. App. at 590, 726 A.2d at 812. If the violation was willful, however, and no other remedy is adequate, the court may void the final action of the public body. § 3-401(d)(4); see also 125 Md. App. at 590, 726 A.2d at 812. "Willfully" under § 3-401(d), has been defined by the Maryland Court of Special Appeals as "non-accidentally," and not requiring knowledge that the meeting actually violates the Act. 125 Md. App. at 596-97, 726 A.2d at 815.
The court may also award attorneys' fees and expenses to the prevailing party. § 10-510(d)(5). Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 150, 699 A.2d 434, 447 (1997). A prevailing party is not automatically entitled to recover its fees, however, nor does the fact of prevailing create a presumption in favor of a fee award. Baltimore County v. Wesley Chapel Bluemount Ass'n, 128 Md. App. 180, 189, 736 A.2d 1177, 1183 (1999). The prevailing party need not prove that the public body acted willfully in order to succeed on its attorneys' fees claim. Id.; see also Suburban Hospital Inc., 125 Md. App. 579, 591, 726 A.2d 807, 812 (1999). Rather, in determining whether a fee award is appropriate, the court is to consider a variety of factors, including the public body's basis for closing the session, its degree of willfulness (if present), whether the issue of the applicability of the Act required appellate review, and the benefit to the parties and the public in resolving the issue. Id.
A public body that willfully convenes a closed meeting with knowledge that the meeting is held in violation of the Act is subject to a civil penalty not to exceed $250 for the first violation and $1,000 for each subsequent violation occurring within 3 years after the first violation. § 3-402. The Maryland Court of Special Appeals, in this context, has noted that a higher level of violative conduct is required under § 3-402 because that provision imposes a more "personally intrusive penalty" on members of the public body than the "general curative remedies established by § [3-401] for the public body as a whole." Suburban Hospital, 125 Md. App. at 592, 726 A.2d at 813.
Alternatively, any person may file a complaint regarding a past or anticipated future violation of the Act by a public body with the OMCB. §§ 3-205 through 3-212. Upon consideration of the complaint and response, the Board will render an opinion concerning the propriety of the body's action. § 3-207. Its opinion cannot compel action by the public body, is solely advisory, and may not be used as evidence in a subsequent judicial proceeding. §§ 3-209 to 3-211. If the complaint concerns an anticipated future violation, the Act provides an expedited procedure for Board review. § 3-212.
Comparec. Minutes
Minutes are required for all meetings subject to the Act. § 3-306(b).
Where the public body meets in closed session, the minutes of its next open session must include a statement of the time, place and purpose of the closed session; the recorded vote of each member as to closing the session; and a citation of authority under the Act for closing the session. § 3-306(c)(2). In addition, the Act requires closed meeting minutes to list "the topics of discussion, persons present, and each action taken during the session." § 3-306(c)(2)(iv).
Except as otherwise provided in § 3-306(c)(4), minutes of closed meetings and any recordings shall remain sealed from public inspection, and may not be open to public inspection. § 3-306(c)(3). However, § 3-306(4)(e) provides that a public body shall keep a copy of the minutes and recordings for at least 5 years after the date of the session. § 3-306(4)(e)(1). The minutes and recordings (if made) shall be unsealed if a majority of the body votes in favor of opening the records either on the body's own initiative or at the request of a person. § 3-306(c)(4)(iii). For meetings closed for the purpose of considering the investment of public funds or the marketing of public securities, the minutes are required to be unsealed once the funds have been invested or the securities have been marketed. § 3-306(c)(4).
d. Requirement to meet in public before closing meeting
The Act does not require the public body to meet in open session before closing the meeting. However, the Act does permit a public body meeting in open session to adjourn to closed session. § 3-305(a).
Comparee. Requirement to state statutory authority for closing meetings before closure
A public body is required to cite statutory authority for closing a meeting in a written statement prepared before closing a meeting. § 3-305(d)(2)(ii). The public body is also required to cite the statutory authority for closure in the minutes of its next open session. § 3-306(c)(2)(iii).
Comparef. Tape recording requirements
There is no requirement that closed sessions be tape recorded; however, sessions may be tape recorded by a public body. § 3-306(c)(3)(i).
CompareF. Recording/broadcast of meetings
Compare1. Sound recordings allowed
Public bodies must adopt and enforce reasonable rules to regulate videotaping, televising, photographing, broadcasting, or recording its meetings. § 3-303. Prohibiting recording is not a “reasonable rule” under the statute. 3 OMCB Opinions 356 (2003).
Compare2. Photographic recordings allowed
Public bodies must adopt and enforce reasonable rules to regulate videotaping, televising, photographing, broadcasting, or recording its meetings. § 3-303. Prohibiting recording is not a “reasonable rule” under the statute. 3 OMCB Opinions 356 (2003).
CompareG. Access to meeting materials, reports and agendas
A public body must provide an agenda that contains “known items or business topics to be discussed’ and indicates whether any portion of the meeting will be closed. § 3-302.1. If the agenda has been determined at the time of notice, the agenda shall be made available along with the notice. § 3-302.1(a)(2). In any event, a public body must make the agenda available as soon as practicable and no later than 24 hours before the meeting. § 3-302.1(a)(3). The public body need not include information related to the portion of the agenda that is closed. § 3-302.1(c). Otherwise, there is no requirement for a public body to provide members of the public with copies of documents under review. OMA Manual, at 3-2. However, the public must be provided with some information regarding the topics of discussion and what actions the public body may take. 9 OMCB Opinions 206, 212-13 (2015) (advising that oral summaries or general descriptions of documents under consideration will suffice). To the extent a public body’s meeting materials or reports are public records and are not otherwise exempt from disclosure, they are obtainable via a Public Information Act request pursuant to Md. Code Ann., Gen. Prov. §§ 4-101 to 4-601 (2017).
CompareH. Are there sanctions for noncompliance?
The Open Meetings Act includes a civil penalty provision for knowing and willful violations of the Act. § 3-402. A public body that willfully convenes a closed meeting with knowledge that the meeting is being held in violation of the Act is subject to a civil penalty not to exceed $250 for the first violation and $1,000 for each subsequent violation occurring within 3 years of the first violation. Id.
CompareII. Exemptions and other legal limitations
CompareA. Exemptions in the open meetings statute
Compare1. Character of exemptions
In general, closed sessions are permitted for personnel matters, to protect the privacy interests of individuals, and to consider preliminary matters involving state investments, litigation matters and public security matters. See § 3-305(b).
Prior to 1991, the Act permitted closure for exceptional reasons by a two-thirds vote of the members of the public body who are present at the session. § 10-508(a)(14) (1984) (repealed 1992). This catch-all exception was eliminated in 1991, thus requiring a public body to fulfill the requirement of identifying a specific exception to justify a meeting's closure. § 3-305(b)-(c); see also OMA Manual, at 4-2.
The Act provides for closure where specific constitutional, statutory or judicial requirements prevent public disclosure regarding a particular proceeding or matter. § 3-305(b)(13). This provision appears to be mandatory. In general, however, the exemptions to open sessions are discretionary. See § 3-305(b).
Compare2. Description of each exemption
(a) Personnel Matters. Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1). However, this exception is to be construed narrowly and is inapplicable to discussions of issues affecting classes of public employees, as distinct from specific individuals. OMA Manual, at 4-2. See also 3 OMCB 67 (2000).
(b) Privacy Matters. Meetings that involve an individual's privacy or reputation with respect to a matter unrelated to public business may be closed. § 3-305(b)(2).
(c) Commercial/Business Matters. Meetings that relate to the acquisition of real property; matters concerning a proposal for the location, expansion or retention of a business or industrial organization within the State; the investment of public funds, and the marketing of public securities may be closed. § 3-305(b)(3)-(6) ; see, e.g., J. P. Delphey Ltd. P'ship v. Mayor and City of Frederick, 396 Md. 180, 913 A.2d s8 (2006) (concluding that aldermen had the authority to act upon an earlier, public decision to condemn property made in a closed session). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).
(d) Litigation Matters. Meetings that involve consultation with counsel to obtain legal advice, or consultation with staff, consultants, or other individuals regarding pending or potential litigation may be closed. § 3-305(b)(7)-(8). The Act, prior to the 1991 amendment, allowed bodies to close meetings to "consult with counsel." § 10-508(a)(7) (1984) (repealed 1992). The amendment narrowed this provision to "consult with counsel to obtain legal advice." § 3-305(b)(7). The OMA Manual notes that this language is intended to prevent public bodies from using the presence of counsel as a subterfuge for wrongfully closing a meeting — i.e., "lawyer as potted plant." Manual, at 4-6. Section 3-305(b)(8) may only be invoked when the discussion directly relates to the pending or potential litigation, and not to discuss the underlying policy issue. Id., at 4-7. The Act also allows closure of discussions of legislative findings when the legislative findings are discussed solely in the context of pending litigation. 3 OMCB 61 (2000). The exception applies only if the potential for litigation is concrete, rather than speculative. Id. at 4-7.
(e) Collective Bargaining Negotiations. Meetings to conduct collective bargaining negotiations or to consider matters regarding negotiations may be closed. § 3-305(b)(9).
(f) Public Security Matters. Meetings to discuss public security, if the public discussion would pose a risk to the public or public security, including discussions of the deployment of fire and police services and staff, and the development and implementation of emergency plans may be closed. § 3-305(b)(10).
(g) Examinations. Meetings to prepare, administer or grade scholastic, licensing or qualifying examinations may be closed. § 3-305(b)(11).
(h) Criminal Investigations. Investigative meetings of actual or possible criminal conduct may be closed. § 3-305(b)(12).
CompareB. Any other statutory requirements for closed or open meetings
A public body acting in closed session may not discuss or act on any matter not exempt under the Act. § 3-305(c).
CompareC. Court mandated opening, closing
Section 3-305(b)(13) provides for constitutional, statutory or judicially mandated closure. Section 3-401(d)(2) permits the court to enjoin a public body from violating the open session requirements.
CompareIII. Meeting categories - open or closed
CompareA. Adjudications by administrative bodies
The Act's provisions apply to meetings of all public bodies unless they are engaging in administrative, judicial, or quasi-judicial functions. § 3-103(a). To the extent that an administrative adjudication falls within these functions, the Act does not apply. See §§ 3-101, 3-103. To the extent that an administrative body exercises other functions (e.g. advisory, legislative, or quasi-legislative), its meetings, including its deliberative and decision making processes, must be open to the public. See id.. All meetings in which the granting of a license or permit or in which zoning matters are being considered are explicitly within the scope of the Act. § 3-103(b); see also Wesley Chapel Bluemount Ass'n. v. Baltimore County, 347 Md. 125, 699 A.2d 434 (1997) (construing phase "other zoning matter" and determining that zoning board was required to conduct development plan deliberations in open session).
Compare1. Deliberations closed, but not fact-finding
The Act's provisions apply to meetings of all public bodies unless they are engaging in administrative, judicial, or quasi-judicial functions. § 3-103(a). To the extent that an administrative adjudication falls within these functions, the Act does not apply. See §§ 3-101, 3-103.
Compare2. Only certain adjudications closed, i.e. under certain statutes
The Act permits sessions closed to the public under certain circumstances and permits the adjournment of an open session to a closed session. § 3-305(b). In general, closed sessions are permitted for personnel matters, to protect the privacy interests of individuals, and to consider preliminary matters involving state investments, litigation matters and public security matters. See id.
CompareB. Budget sessions
The Act specifically defines a quasi-legislative function as the process or act of approving, disapproving, or amending a budget. § 3-101(j)(2). However, in Avara v. Baltimore News American, 292 Md. 543, 551-52, 440 A.2d 368, 372 (1982), the Court suggested that meetings of the Budget Conference Committee were subject to the open session requirement unless closed in accordance with the exemptions noted in § [3-305]. Further, the Act's enforcement section does specifically exempt actions taken by public bodies regarding the appropriations of public funds. § 3-401(a)(i); see also Avara, 292 Md. at 552, 440 A.2d at 372-73 (the deliberations of the Budget Conference Committee in the process of enacting the budget bill into law comes within the appropriating public funds exception and, thus, are not subject to the enforcement provisions of the Act); Board of County Comm'rs v. Landmark Community Newspapers of Md. Inc., 293 Md. 595, 446 A.2d 63 (1982) (budget work session of Board of County Commissioners is within the exception).
CompareC. Business and industry relations
Meetings that relate to the acquisition of real property; matters concerning a proposal for the location, expansion or retention of a business or industrial organization within the State; the investment of public funds; and the marketing of public securities may be closed. § 3-305(b)(3)-(6). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).
CompareD. Federal programs
To the extent that the federal program involves matters exempt under the Act, it may be the subject of a closed session. § 3-305(b).
CompareE. Financial data of public bodies
Meetings that relate to the acquisition of real property; matters concerning a proposal for the location, expansion or retention of a business or industrial organization within the State; the investment of public funds; and the marketing of public securities may be closed. § 3-305(b)(3)-(6). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).
CompareF. Financial data, trade secrets, or proprietary data of private corporations and individuals
Meetings that involve an individual's privacy or reputation with respect to a matter unrelated to public business may be closed. § 3-305(b)(2).
Meetings that relate to the acquisition of real property; matters concerning a proposal for the location, expansion or retention of a business or industrial organization within the State; the investment of public funds; and the marketing of public securities may be closed. §§ 3-305(b)(3)-(6). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).
CompareG. Gifts, trusts and honorary degrees
The Act does not provide an exemption for meetings within this category.
CompareH. Grand jury testimony by public employees
The provisions of the Act are not applicable to judicial functions which include, by the Act's definition, the function of a grand jury. See § 3-101(e), (h)(3).
CompareI. Licensing examinations
Meetings to prepare, administer, or grade scholastic, licensing or qualifying examinations may be closed. § 3-305(b)(11).
CompareJ. Litigation, pending litigation or other attorney-client privileges
Meetings that involve consultation with counsel to obtain legal advice, or consultation with staff, consultants, or other individuals regarding pending or potential litigation may be closed. §§ 3-305(b)(7)-(8). The Act, prior to its amendment in 1991, allowed bodies to close meetings to "consult with counsel." § 10-508(a)(7) (1984) (repealed 1992). The 1991 amendment narrowed this to "consult with counsel to obtain legal advice." § 3-305(b)(7). The OMA Manual notes that this language is intended to prevent public bodies from using the presence of counsel as a subterfuge for wrongfully closing a meeting — i.e., "lawyer as potted plant." OMA Manual, at 4-6. Section 3-305(b)(8) may only be invoked when the discussion directly relates to the pending or potential litigation, and not to discuss the underlying policy issue. Id., at 4-7.
CompareK. Negotiations and collective bargaining of public employees
Meetings to conduct collective bargaining negotiations or to consider matters regarding negotiations may be closed. § 3-305(b)(9).
Compare1. Any sessions regarding collective bargaining
Meetings to conduct collective bargaining negotiations or to consider matters regarding negotiations may be closed. § 3-305(b)(9).
Compare2. Only those between the public employees and the public body
The Act makes no such distinction. § 3-305(b)(9).
CompareL. Parole board meetings, or meetings involving parole board decisions
Because a parole board exercises an executive or quasi-judicial function, it is not required to open its meeting. 65 Op. Att'y Gen. 341 (Md. 1980).
CompareM. Patients, discussions on individual patients
Although the Act is silent, arguably such meetings would be closed pursuant to the PIA because such information is exempt under the PIA. See e.g., § 3-305(b) (allowing for closure to protect privacy of individuals concerning matters unrelated to the public business); § 3-305(b)(13) (which allows closure to comply with a specific statutorily imposed requirement preventing public disclosure); § 4-329(c); see also Md. Code Ann., Health Gen'l § 4-302.
CompareN. Personnel matters
Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1). However, this exception is to be construed narrowly and is inapplicable to discussions of issues affecting classes of public employees, as distinct from specific individuals. OMA Manual, at 4-2.
Compare1. Interviews for public employment
Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1).
Compare2. Disciplinary matters, performance or ethics of public employees
Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1).
Compare3. Dismissal, considering dismissal of public employees
Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1).
CompareO. Real estate negotiations
Meetings that relate to the acquisition of real property may be closed. § 3-305(b)(3). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).
CompareP. Security, national and/or state, of buildings, personnel or other
Meetings to discuss public security, if the public discussion would pose a risk to the public or public security, including discussions of the deployment of fire and police services and staff, and the development and implementation of emergency plans may be closed. § 3-305(b)(10).
CompareQ. Students, discussions on individual students
Meetings to prepare, administer or grade scholastic, licensing or qualifying examinations may be closed. § 3-305(b)(11).
CompareIV. Procedure for asserting right of access
CompareA. When to challenge
As soon as the public body fails to comply with the Act's open session, attendance, notice or minutes requirements, an adversely affected person may petition the circuit court for relief. § 3-401(b). The aggrieved individual must file a petition complaining of an alleged violation of the open session or attendance provisions within 45 days of the issuance of minutes documenting the prior closed session. § 3-401(b)(3). A petition complaining of an alleged violation of the notice or minutes requirements must be filed within 45 days of the alleged violation. § 3-401(b)(2). The 45-day limitations period does not apply to a claim about an Open Meeting Act violation that is included in a petition for judicial review of a governmental agency's action brought under other laws. Handley v. Ocean Downs, LLC, 151 Md. App. 615, 827, A.2d 961 (2003); see also OMA Manual, at 7-10.
The limitation periods are tolled by the use of the OMCB complaint procedures until the issuance of a written opinion by the Board. § 3-401(b)(4). The Act permits any adversely affected person to file a complaint with the OMCB for past or anticipated future violations of the Act. §§ 3-205, 3-212.
Compare1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?
Although the Act does not specifically provide for expedited judicial review regarding a request to attend an upcoming meeting, the court is authorized to issue an injunction and to require compliance with the Act. §§ 3-401 (d).
The OMCB will consider oral or written complaints of anticipated future violations. § 3-212(a). Upon receipt of the complaint, the chairman, a designated OMCB member, or an authorized staff person may contact the public body to determine the nature of the meeting and the reason for its expected closure. Id.. If at least two OMCB members determine that closure would violate the Act, the person acting for the OMCB shall immediately inform the body of the potential violation and any lawful means for the body to conduct its meeting and achieve its purposes. § 3-212(b). The person acting for the OMCB shall also prepare a written report describing the complaint and efforts to achieve compliance with the Act. § 3-212(d). The person acting for the OMCB must also inform the complainant of the OMCB's efforts to achieve compliance. § 3-212(c). Use of this procedure does not bar the complainant from filing a subsequent written complaint under § 3-205. § 3-212(e).
Compare2. When barred from attending
Section 3-401, provides for enforcement of the Act through judicial review. It does not apply to matters involving the appropriation of public funds; levying a tax; or providing for the issuance of bonds, notes, or other evidences of public obligation. § 3-401(a)(1). These exceptions do not govern the use of OMCB complaint procedures. See §§ 3-205, 3-212, 3-401(a)(3). In addition, a court may not void the action of a public body due to another public body's violation of the Act. § 3-401(a)(2).
Compare3. To set aside decision
A court may void the action of the public body if it finds a willful violation of the open session, notice, attendance or minutes requirements and it finds that no other adequate remedy is available. § 3-401(d)(4); see also Wesley Chapel Bluemount Ass'n. v. Baltimore County, 347 Md. 125, 149, 699 A.2d 434, 447 (1997) (trial court erred in voiding zoning board's action when there was no evidence that the board's erroneous decision to close its meeting was willful), CLUB v. Baltimore City Board of Elections, 377 Md. 183, 189 832 A.2d 804, 807 (2003). But, a court may not void the action of a public body due to another public body's violation of the Act. § 3-401(a)(2).
Compare4. For ruling on future meetings
Because the court is authorized to rule on violations of the notice requirement and to require compliance with the Act, the court has the power to rule on issues relevant to future meetings. See § 3-401(b)(1)(i)-(ii).
Compare5. Other
The court has the power to determine the applicability of the open session, notice, minutes, and attendance requirements of the Act and to grant any other relief the court deems appropriate. § 3-401(b).
CompareB. How to start
Compare1. Where to ask for ruling
Comparea. Administrative forum
To the extent that another law provides more stringent requirements, that law will apply. See § 3-105. Thus, if there are provisions mandating agency procedures for open meetings, they may provide a forum.
The Act established the OMCB, which provides a non-judicial forum for consideration of past and prospective violations of the Act. See §§ 3-205 through 3-212. The Board's opinion is solely advisory and cannot compel action by the public body, nor can the Board's opinion be introduced as evidence in a legal action against the public body. §§ 3-209 to 3-211.
The Office of the Attorney General (“OAG”) provides staff for the OMCB and works with the OMBC to train staff members and attorneys of public bodies and local government associations. §§ 3-203(d), 3-204(d). The staff and attorneys provided to the OMCB are housed in the Opinions and Advice Division of the OAG. OMA Manual, at 7-10. The OAG hosts a website dedicated to open meetings that includes the text of the Act, frequently asked questions, a compliance checklist, and training/educational resources. Id., at 7-11. The OMCB’s meeting notices and related documents, complaint and response procedures, and opinions are also available at the website: http://www.marylandattorneygeneral.gov/Pages/OpenGov/Openmeetings/default.aspx.
Compareb. State attorney general
The Office of the Attorney General (“OAG”) provides staff for the OMCB and works with the OMBC to train staff members and attorneys of public bodies and local government associations. §§ 3-203(d), 3-204(d). The staff and attorneys provided to the OMCB are housed in the Opinions and Advice Division of the OAG. OMA Manual, at 7-10. The OAG hosts a website dedicated to open meetings that includes the text of the Act, frequently asked questions, a compliance checklist, and training/educational resources. Id., at 7-11. The OMCB’s meeting notices and related documents, complaint and response procedures, and opinions are also available at the website: http://www.marylandattorneygeneral.gov/Pages/OpenGov/Openmeetings/default.aspx.
Comparec. Court
The Act specifically provides for a petition to be filed with the circuit court by a person adversely affected by a public body's failure to comply with the Act. § 3-401(b). A party need not exhaust administrative remedies before bringing its complaint. Suburban Hospital Inc. v. Maryland Health Resources Planning Comm'n., 125 Md. App. 579, 600, 726 A.2d 807, 817, n.8 (1999).
Compare2. Applicable time limits
Upon receipt of the petition, the OMCB shall send a copy of the complaint to the identified public body requesting a response within 30 days. § 3-206(b)(1). If the OMCB has sufficient information based on the written materials before it, it shall issue a written opinion within 30 days of receiving the public body's response. § 3-207(a). Otherwise, it may conduct an informal conference with the parties or other appropriate persons to gather additional information. § 3-207(b). The Board shall then issue its opinion 30 days following the conference. Id.
Compare3. Contents of request for ruling
A complaint, signed by the person making it, shall identify the public body, its action, and the date and circumstances of the action. § 3-205(b).
Compare4. How long should you wait for a response
Upon receipt of the petition, the OMCB shall send a copy of the complaint to the identified public body requesting a response within 30 days. § 3-206(b)(1). On request of the OMCB, the public body shall include with its written response a copy of a notice provided under § 3-302, a written statement made under § 3-305(d)(2)(ii) and minutes or any tape recording made by the public body under § 3-306. § 3-206(b)(2). The OMCB shall maintain the confidentiality of minutes and tape recordings submitted. § 3-206(b)(3). If the Board has sufficient information based on the written materials before it, it shall issue a written opinion within 30 days of receiving the public body's response. § 3-207(a). Otherwise, it may conduct an informal conference with the parties or other appropriate persons to gather additional information. § 3-207(b). The Board shall then issue its opinion 30 days following the conference. Id.
Compare5. Are subsequent or concurrent measures (formal or informal) available?
Generally, the Act’s enforcement provisions do not “affect or prevent the use of any other available remedies.” § 3-401(a)(4). Injunctive, declaratory relief, and any other appropriate relief are available from the courts. § 3-401(d). Moreover, a petitioner is not required to file a complaint with the OMCB before filing suit. § 3-401(e).
CompareC. Court review of administrative decision
Compare1. Who may sue?
Any person adversely affected by the public body's action may petition the court for relief. § 3-401(b).
Compare2. Will the court give priority to the pleading?
There are no specific provisions regarding priority, but if the person alleges a violation of §§ 3-301, 3-302, 3-303, 3-305, or 3-306(c) of the Act, the person must file within 45 days of the alleged violation. § 3-401(b).
Compare3. Pro se possibility, advisability
Because the action of the public body is presumed correct, proceeding pro se may not be advisable. § 3-401(c).
Compare4. What issues will the court address?
Comparea. Open the meeting
The court is expressly authorized to issue an injunction under the Act. § 3-401(d)(2). Thus, the court may enjoin the public body from closing meetings or committing future violations of the Act. See § 3-401(b).
Compareb. Invalidate the decision
If the court finds a willful failure to comply with the open meeting, notice, public attendance or minutes requirements and finds that there is no other adequate remedy, the court may declare void the final action of the public body. § 3-401(d)(4); Wesley Chapel Bluemount Ass'n. v. Baltimore County, 347 Md. 125, 149, 699 A.2d 434, 446 (1997). But, a court may not void the action of a public body due to another public body's violation of the Act. § 3-401(a)(2). Further, this remedy is not available for violations of Section 3-305 alone. § 3-401(d)(4).
Comparec. Order future meetings open
The court is expressly authorized to issue an injunction under the Act. § 3-401(d)(2). Thus, the court may enjoin the public body from closing meetings or committing future violations of the Act. See § 3-401(b).
Compare5. Pleading format
The Act requires the filing of a petition. § 3-401(b). The petition may request a determination of the applicability of the Act's provisions, ask the court to compel the public body to comply with the Act, or request that the action of the public body be voided. § 3-401(b)(1). It must be noted that the public body enjoys a rebuttable presumption that its actions did not violate the Act. § 3-401(c). Thus, the party alleging a failure to comply has the burden of proof. Id.
Compare6. Time limit for filing suit
If a violation of the notice, closed meetings, or minutes requirements is alleged, then the petition must be filed within 45 days after the date of the alleged violation. § 3-401(b)(2). If a violation of the open meetings or public attendance requirements is alleged, then the petition must be filed within 45 days after the public body includes in the minutes of its next open session the information detailing its prior closed session as required by Section 3-306(c)(2) of the Act. § 3-401(b)(3). The limitation periods are tolled by the use of the Board complaint procedures until the issuance of a written opinion by the Board. § 3-401(b)(4).
Compare7. What court?
The petition must be filed in a circuit court that has venue over the action. § 3-401(b)(1).
Compare8. Judicial remedies available
Injunctive, declaratory relief, and any other appropriate relief are available. § 3-401(d).
Compare9. Availability of court costs and attorney's fees
The court may award a prevailing party reasonable attorney fees and litigation expenses. § 3-401(d)(5)(i); see Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 149, 699 A.2d 434, 446 (1997). In determining whether to award attorneys' fees, the court is to consider, among other things, the public body's basis for closing the meeting, whether its actions were willful, whether the amounts claimed were reasonable, and the degree of good faith shown by both parties. 347 Md. at 150, 699 A.2d at 447. However, the Act does not require a finding of willfulness as a precondition to the assessment of counsel fees and litigation expenses. Armstrong v. Mayor of Baltimore, 409 Md. 648, 976 A.2d 349 (2009).
A prevailing party is not automatically entitled to recover its fees, nor does prevailing create a presumption in favor of a fee award. Baltimore County v. Wesley Chapel Bluemount Ass'n., 128 Md. App. 180, 189, 736 A.2d 1177, 1183 (1999). On the other hand, the prevailing party need not prove animus or bad faith on the part of the government body to justify its claim for fees. 128 Md. App. at 190, 736 A.2d at 1182. Malamis v. Stein, 69 Md. App. 221, 516 A.2d 1039 (1986). The court may also require a bond to ensure compliance. § 3-401(d)(5)(ii).
Compare10. Fines
The Act provides for a civil penalty of up to $250 for the first violation and $1,000 for each subsequent violation occurring within 3 years after the first violation for any public body that willfully convenes a closed meeting knowing that it is being held in violation of the Act. § 3-402.
Compare11. Other penalties
None.
CompareD. Appealing initial court decisions
Compare1. Appeal routes
The Act does not provide procedures for an appeal. Parties generally, however, are absolutely entitled to an appeal of current court decisions to the Maryland Court of Special Appeals; review of that decision is then subject to discretionary review by the Court of Appeals. Md. Rules 8-201, 8-202, 8-301, 8-303.
Compare2. Time limits for filing appeals
A party may appeal from a circuit court judgment within 30 days after judgment is entered. Md. Rule 8-202.
Compare3. Contact of interested amici
Any parties interested in submitting amicus curiae briefs may contact the law firm of Saul Ewing Arnstein & Lehr LLP, 500 E. Pratt Street, Suite 800, Baltimore, Maryland 21202.
The Reporters Committee for Freedom of the Press frequently files friend-of-the-court briefs in open records cases being considered at the highest appeal level in the state.
CompareV. Asserting a right to comment
The Act protects only the right to observe; it makes no reference to a right to comment or participate. § 3-303(a). See City of New Carrollton v. Rogers, 287 Md. 56, 72 (1980) (“While the Act does not afford the public any right to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings.”). Accordingly, unless there are other laws governing a particular public body that require the receipt of comment, the decision to allow members of the public to speak resides with the body. OMA Manual, at 3-2.
CompareA. Is there a right to participate in public meetings?
N/A.
CompareB. Must a commenter give notice of intentions to comment?
N/A.
CompareC. Can a public body limit comment?
N/A.
CompareD. How can a participant assert rights to comment?
N/A.
CompareE. Are there sanctions for unapproved comment?
N/A.
Compare