Amster v. Baker , 229 Md. App. 209 ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1801
September Term, 2013
JAYSON AMSTER
v.
RUSHERN L. BAKER
Woodward,
Leahy,
Reed,
JJ.
Opinion by Woodward, J.
Filed: August 30, 2016
On April 19, 2012, appellant, Jayson Amster, filed a Maryland Public Information Act
(“MPIA”) request with Rushern L. Baker, County Executive of Prince George’s County,
seeking disclosure of a lease between Whole Foods and Calvert Tract, LLC (“Calvert
Tract”). The Prince George’s County Office of Law denied the request, informing appellant
that the lease was not subject to disclosure under the MPIA.
On July 3, 2012, appellant filed a complaint in the Circuit Court for Prince George’s
County against the County Executive, seeking disclosure of the Whole Foods lease.
Subsequently, the court granted the motion of appellee, Calvert Tract, to intervene as a
defendant. The County Executive and Calvert Tract both filed motions for summary
judgment on the grounds that the lease was exempt from disclosure under the MPIA’s
exemption for confidential commercial information.1
On June 4, 2013, following a motions hearing, the trial court granted the motions for
summary judgment, ruling that the lease was exempt from disclosure under the MPIA. The
court also dismissed the County Executive as a defendant and substituted appellee, Prince
George’s County (“the County”), in his place.
On appeal, appellant presents one question for our review, which we have rephrased
as follows:
1
The confidential commercial information exemption was located in Section 10-
617(d) of the State Government Article (“SG”) at the time the parties filed their briefs;
however, the MPIA was re-codified thereafter in Title 4 of the General Provisions Article
(“GP”). The exemption for commercial information is now found in GP § 4-335, effective
October 1, 2014, without any change in the text of former SG § 10-617(d). See Revisor’s
Note, GP § 4-335. All future references in this opinion will be to GP § 4-335.
Did the circuit court err in granting summary judgment by ruling that
the Whole Foods lease was exempt from disclosure under GP
§ 4-335(2)?
For reasons set forth below, we answer this question in the negative and affirm the judgment
of the circuit court.
BACKGROUND
Calvert Tract owns approximately thirty-six acres of land near the intersection of
Baltimore Avenue (U.S. 1) and East-West Highway (Maryland Route 410) in Prince
George’s County. In October 2011, Calvert Tract sought a zoning change from R-55
(Single-Family Detached Residential) to MUTC (Mixed-Use Town Center) in order to
develop the land into “a mix of office, commercial, and residential use.” As part of the
development process, Calvert Tract entered into confidential negotiations and executed a
commercial lease with Whole Foods as the anchor store. Calvert Tract provided a redacted
copy of the lease to the County “as part of the ongoing discussions of the development of the
property.”2 County officials acknowledged the lease’s existence in communications with
constituents.
Appellant, a member of the Maryland bar and a Prince George’s County resident,
2
The Planning Board of the Maryland National Capital Park and Planning
Commission approved Calvert Tract’s zoning application with conditions on February 16,
2012. The County Council of Prince George’s County, sitting as the District Council,
approved the zoning application with conditions on July 12, 2012. Appellant concedes in his
brief that the County Executive “had no legal role in the [ ] zoning case before the District
Council and he was not making any decisions.”
2
submitted an MPIA request to the County Executive on April 19, 2012, seeking, among other
items, “[a]ny lease for a Whole Foods store . . . located in Prince George’s County.” The
County Office of Law responded to the request on May 7, 2012, informing appellant that the
lease was not subject to disclosure under the MPIA because the lease was “confidential
commercial information.” On July 3, 2012, appellant filed a pro se Complaint for Disclosure
of Public Record against the County Executive in the circuit court, seeking, among other
items, “a certain lease for a Whole Foods grocery store to be located in Prince George’s
County which is a prominent part of pending Zoning Application A-10018.” Calvert Tract
filed a motion to intervene, which the court granted.
Calvert Tract and the County Executive filed separate motions for summary judgment,
arguing that the lease was exempt from disclosure under GP § 4-335(2), because the lease
is a private document containing confidential commercial information that Calvert Tract
voluntarily provided to the government and would not ordinarily release to the public.
Calvert Tract attached an affidavit to its motion, which stated, among other things, that (1)
Calvert Tract entered into a lease with Whole Foods to open a store at the intersection of U.S.
1 and Maryland Route 410; (2) the lease “was the product of extensive confidential
negotiations”; (3) a redacted version of the lease was provided to the County with the
intention of the lease remaining private;3 (4) Calvert Tract “does not customarily publicly
3
Appellant makes no argument before us, nor did he adduce any admissible evidence
below, that Calvert Tract did not intend for the redacted version of the lease to remain
(continued...)
3
disclose its commercial leases”; (5) the lease contains financial information; (6) Calvert Tract
“intends to pursue negotiations with other businesses to enter into” leases at the property; and
(7) disclosure of the lease “would place Calvert [Tract] at a disadvantage when negotiating
future commercial leases for the property.” Appellant filed an opposition to the motions for
summary judgment, in which he argued that summary judgment should be denied, because
the movants did not meet their burden of showing that “the document or a severable portion
meets all elements of exemption.” (Emphasis in original).
The circuit court held a motions hearing on June 4, 2013, at which the judge ruled
from the bench that the lease was exempt from disclosure under GP § 4-335(2) and that
appellant was not entitled to an in camera review of the lease. The court stated the
following:
And when I look at [4-335] I do find that it’s—that it is confidential
information and confidential financial information or a trade
secret. . . . [I]t’s very clear, based on Critical Mass [Energy Project
v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir. 1992) (en
banc), cert. denied, 507 U.S. 984 (1993)] that . . . there is an
exemption for confidential trade secrets, commercial or financial
information . . . . [I]n the situations with the NAACP, Governor
Glendening, and these type of situations, these are public
entities . . . where I am looking at the information to make the
determination of redaction or not to redact[]. As a judge, yes, I can go
back and forth. But it’s very difficult to do an ex parte with one party
and then report to another party. I end up being an arbitrator, and I’m
a judge. I’m not an arbitrator . . . that is just a perilous path for a
judge to do when it comes to confidential, financial information.
3
(...continued)
private.
4
What I may think is disclosable, may not be really disclosable at all,
and may be the revelation of confidential information. . . . The law
based on the [MPIA] and Critical Mass lea[d] me to the conclusion
that this is exempted material and, therefore, I will deny the
request of [appellant].
(Emphasis added).
The court also dismissed the County Executive as a defendant and substituted the County in
his place.
Appellant filed a motion to reconsider, alter, or amend, which the trial court denied.
Appellant filed his timely notice of appeal on October 30, 2013.4
PARTIES’ CONTENTIONS
Appellant contends that the circuit court erred by ruling that the confidential
commercial information exemption to the MPIA barred the lease’s disclosure. According
to appellant, the federal “Critical Mass” rule, which provides a categorical exemption from
disclosure under the Freedom of Information Act (“FOIA”) for information voluntarily
provided to the government by private parties, “is inapposite to this case,” because the
County “had no need for the information in the lease.” In addition, appellant claims that
“Calvert Tract offered no ‘proof’ of the provider’s custom for not disclosing all or part of the
4
Appellant’s MPIA application also sought the County’s email correspondence
regarding the Whole Foods lease, but on October 1, 2013, appellant filed a notice of partial
voluntary non-suit withdrawing that request. The next day, the court issued an order closing
the case statistically.
5
document,” which is required to satisfy the Critical Mass test.5
Appellant further asserts that, even if the lease is exempt under the confidential
commercial information exemption found in GP § 4-335(2), that exemption is not absolute.
Because representatives of appellees discussed provisions of the lease in public, appellant
argues that those provisions are not protected by the MPIA exemption.
Finally, appellant claims that other parts of the lease not covered by the confidential
commercial information exemption should be severed and released, because “[c]ourts will
no longer accept conclusory and generalized allegations of exemption.” Appellant concludes
that the trial court erred in exempting the lease in its entirety, without conducting an in
camera review to determine which portions of the lease did not constitute confidential
commercial information and could be disclosed.
Appellees respond that the circuit court did not err in ruling that the lease was exempt
under the confidential commercial information exemption of the MPIA, because the lease
(1) is commercial in nature, (2) was submitted to the government voluntarily, and (3) would
not ordinarily be subject to public disclosure. According to appellees, public disclosure
would allow Calvert Tract’s competitors “to derive an unfair commercial advantage,” and
as a consequence, developers would “be dissuaded from volunteering useful information to
5
Appellant also argues that the circuit court ignored “disputed material facts,” but
does not specify those allegedly disputed facts. As a result, this issue is not preserved. See
Md. Rule 8-504(a)(6) (requiring a party’s brief to contain argument in support of its position
on each issue).
6
County officials, which will weaken the ability of County officials to make well-informed,
strategic decisions and to promote economic development in the County.”
Calvert Tract also asserts that, although the “existence of the lease” has been made
public, “at no point have the contents of the lease been made public.” (Emphasis in original).
Calvert Tract argues that the lease “cannot be transformed into a public record simply
because a redacted version has been provided to the relevant County and not disclosed
further.”
Furthermore, appellees claim that “segregability is not an appropriate remedy,”
because the circuit court does not have sufficient expertise to determine what is confidential
or proprietary information in a commercial lease. The County argues that cases that call for
severable, redacted portions of exempt documents all concerned “quintessential government
documents” that fell under “different categories of exemptions” with different purposes, and
thus do not apply to the confidential commercial information exemption. Calvert Tract
claims that, if trial judges were “permitted to comb through commercial leases, then all future
developers and investors in Maryland will be subject to potentially inconsistent
determinations as to what elements of a lease are proprietary.”
STANDARD OF REVIEW
The Court of Appeals set out the appellate standard of review for a grant of summary
judgment in Tyler v. City of College Park:
Whether a circuit court’s grant of summary judgment is proper
in a particular case is a question of law, subject to a non-deferential
7
review on appeal. As such, in reviewing a grant of summary
judgment, we review independently the record to determine whether
the parties generated a dispute of material fact and, if not, whether the
moving party was entitled to judgment as a matter of law. We review
the record in the light most favorable to the non-moving party and
construe any reasonable inferences that may be drawn from the
well-plead facts against the moving party.
415 Md. 475, 498-99 (2010) (citations omitted). Ordinarily, we “consider only the grounds
upon which the trial court relied in granting summary judgment.” Ross v. State Bd. of
Elections, 387 Md. 649, 667 (2005) (internal quotation marks omitted).
When faced with an MPIA dispute, a trial court “must interpret the [Act’s] exemptions
narrowly.” Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 77 (1998). “The Public
Information Act’s strong preference for public access to government documents must be
considered whenever a court is applying the particular provisions of the statute.” Md. Dep’t
of State Police v. Md. State Conference of NAACP Branches, 430 Md. 179, 191 (2013)
(“NAACP Branches”). The government has the burden of sustaining its decision to deny the
inspection of a public record. Md. Code (2014), § 4-362(b)(2)(i)(1) of the General
Provisions Article (“GP”); see also Fioretti, 351 Md. at 78. Whether to conduct an in
camera inspection of the requested documents falls within the trial court’s discretion. See
Cranford v. Montgomery Cnty., 300 Md. 759, 779, 791 (1984).
DISCUSSION
The General Assembly codified a general right to access to public information in the
MPIA. See GP §§ 4-101 to -601. The Act “shall be construed in favor of allowing
8
inspection of a public record.” GP § 4-103(b); see Kirwan v. The Diamondback, 352 Md.
74, 81 (1998) (noting that the Act “must be liberally construed in order to effectuate the
Public Information Act’s broad remedial purpose” (citations and internal quotation marks
omitted)). The Court of Appeals recently noted, however, that
[w]hile the public policy of the MPIA favors disclosure, the purpose
of the Act reveals a legislative goal other than complete carte blanche,
unrestricted disclosure of all public records. The legislative purpose
underpinning the MPIA is that “citizens of the State of Maryland be
accorded wide-ranging access to public information concerning the
operation of their government.”
Immanuel v. Comptroller of Maryland, __ Md. __, __, No. 87, September Term 2015 (filed
July 12, 2016), slip op. at 13 (emphasis in original) (citations and internal quotation marks
omitted).
The Act contains three categories of exemptions to the general rule favoring
disclosure. The first category instructs the custodian to deny inspection “of a public record
or any part of a public record” if inspection would be contrary to statute, regulation, case law,
or court order. GP § 4-301. The second category contains a mandatory requirement for the
custodian to “deny inspection of a public record” or any part of a public record for specific
types of records, such as hospital records, adoption records, or personnel records; or records
containing specific types of information, such as medical information, licensing records,
trade secrets, or confidential information. GP §§ 4-304 to -326, 4-328 to -340. The third
category gives the custodian discretion to deny inspection “if a custodian believes that
inspection of a part of a public record by the applicant would be contrary to the public
9
interest.” GP § 4-343. As to all exemptions, if a custodian denies an MPIA request, the
custodian “shall . . . allow inspection of any part of the record that is subject to inspection and
is reasonably severable.” GP § 4-203(c)(3).
At issue in the instant case is a second category exemption found in GP § 4-335:
Trade secrets; confidential information
A custodian shall deny inspection of the part of a public record that
contains any of the following information provided by or obtained
from any person or governmental unit:
(1) a trade secret;
(2) confidential commercial information;
(3) confidential financial information; or
(4) confidential geological or geophysical information.
The Federal Freedom of Information Act (“FOIA”) has an identical provision
exempting disclosure for “matters that are . . . trade secrets and commercial or financial
information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4)
(2012) (“Exemption 4”). Like the MPIA, FOIA also requires that “[a]ny reasonably
segregable portion of a record shall be provided to any person requesting such record after
deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b).
The Court of Appeals has recognized “that the purpose of the Maryland PIA is
‘virtually identical’ to that of the Federal FOIA and that, except where there may be some
relevant differences in the two statutes, we may, and should, look to persuasive
interpretations of the Federal Act.” Stromberg Metal Works, Inc. v. Univ. of Md., 395 Md.
10120, 127 n.2 (2006) (citations omitted); see also Immanuel, slip op. at 14 (“We have
recognized the utility of looking to FOIA jurisprudence in interpreting the exemptions under
the MPIA.”). For example, in Stromberg, the Court of Appeals considered its prior case law
interpreting the “executive deliberative process privilege” found in GP § 4-344, as well as
federal case law discussing Section 552(b)(5) of FOIA, because the MPIA provision was
derived from the federal analog. See 395 Md. at 124-25.
In Office of Governor v. Washington Post. Co. (“Washington Post”), on the other
hand, the Court of Appeals held that the MPIA applied to the Office of the Governor; in
doing so, the Court distinguished federal case law construing FOIA as not applying to the
Office of the President on the grounds that the statutory language at issue was different. 360
Md. 520, 532-36 (2000). Federal courts had held that FOIA did not apply to the Office of
the President because that office is not an “agency,” and because there was federal legislative
history exempting “the President’s immediate personal staff or units in the Executive Office
whose sole function is to advise and assist the President” from the term “agency.” Id. at 533-
34 (citations omitted). In Washington Post, the Court of Appeals held that the MPIA did
apply to the Office of the Governor, because, unlike FOIA, which applies only to “agency
records,” the MPIA subjects all “public records” to disclosure, and Maryland had no such
legislative history exempting the Office of the Governor from the MPIA’s reach. Id. at 534-
36. In summary, in interpreting the MPIA, the Court of Appeals has indicated that the
federal caselaw on FOIA is highly persuasive, especially where the statutory provisions are
11
identical. See Stromberg, 395 Md. at 127 n.2. As previously indicated, Exemption 4 of
FOIA is identical to GP § 4-335.
The instant case involves a commercial lease between two private parties, not a
government-generated document, and a redacted copy of such lease that was voluntarily
submitted to the government. Nevertheless, the Whole Foods lease is a “public record”
under GP § 4-101(h), because it was received by the government “in connection with the
transaction of public business.” There is no Maryland case on point that analyzes the
confidential commercial information exemption as applied to a private document that was
voluntarily submitted to the government.
1.
Appellees point us to Critical Mass and ask us to follow it. See 975 F.2d at 871. In
Critical Mass, the United States Court of Appeals for the District of Columbia Circuit (“the
D.C. Circuit”) established the prevailing test for evaluating FOIA Exemption 4 claims for
private records voluntarily submitted to the government. Id. Critical Mass Energy Project,
a non-profit consumer organization, filed a FOIA request with the Nuclear Regulatory
Commission (“NRC”), seeking copies of nuclear facility safety reports that were voluntarily
submitted to the government on behalf of the Institute for Nuclear Power Operations
(“INPO”), a non-profit corporation formed by operators of American nuclear power plants.
Id. at 874. The safety reports contained “candid comments and evaluations from nuclear
power plant employees,” and were distributed to “the NRC pursuant to the explicit
12
understanding that they [we]re not to be disclosed to additional persons without INPO’s
consent.” Id. Notwithstanding the FOIA provision requiring custodians to disclose any
reasonably severable portion of the requested agency record, the D.C. Circuit held that
Exemption 4 provided a blanket exemption for documents containing commercial or
financial information that were voluntarily provided to a government agency and not
customarily made public. Id. at 880; see also 5 U.S.C. § 552(b).
At the outset, the D.C. Circuit noted the legislative purpose of Exemption 4:
[U]nless persons having necessary information can be assured that it
will remain confidential, they may decline to cooperate with officials,
and the ability of the Government to make intelligent, well informed
decisions will be impaired. . . . [T]his exemption is intended to
encourage individuals to provide certain kinds of confidential
information to the Government.
Critical Mass, 975 F.2d at 873 (citations and internal quotation marks omitted). The Court
pointed out that, in situations where the information is provided to the government on a
voluntary basis, the government has an interest “in ensuring its continued availability,” and
if private parties are threatened with the risk of public disclosure of their confidential
commercial information pursuant to a FOIA request, they “will, in all likelihood, refuse
further cooperation” and cease providing such information to the government on a voluntary
basis. Id. at 878.
To protect the government’s “continuing ability to secure such data on a cooperative
basis,” the D.C. Circuit established a three-part test for a private document to be exempt from
disclosure under Exemption 4: (1) the record must contain confidential commercial or
13
financial information that was (2) voluntarily provided to the government and (3) not
customarily released to the public by the private party. Id. at 879. The D.C. Circuit stated
that this test was an objective one, with the agency carrying the burden of proving the
provider’s custom of nondisclosure. Id. Applying the test, the D.C. Circuit agreed with the
District Court’s conclusion that the INPO safety reports contained commercial information,
that the reports were provided to the NRC on a voluntary basis, and that INPO did not
customarily release such information to the public. Id. at 880. As a result, the D.C. Circuit
held that the reports were “confidential within the meaning of Exemption 4, and therefore
protected from disclosure” in their entirety. Id. Finally, the D.C. Circuit stated its belief
“that the categorical rule we announce today will greatly simplify the application of
Exemption 4 in a significant number of cases.” Id. at 877.
There is only one reported opinion in Maryland applying the confidential commercial
information exemption in GP § 4-335(2), and that opinion deals with the government’s own
records, not private records voluntarily provided to the government. In Washington Post, the
newspaper filed an MPIA request seeking telephone and scheduling records from the Office
of the Governor and the Governor (“the Governor”). 360 Md. at 526. The Governor denied
the request, claiming that the documents were exempt under various provisions of the MPIA,
including the confidential commercial information exemption. Id. at 528-29. The Governor
argued that the records “identified specific telephone calls which involved ‘economic
development projects,’ or ‘sensitive and confidential negotiations over’ such economic
14
development projects, or ‘confidential efforts to resolve a strike in Maryland,’ or ‘sensitive
discussions relating to a major public transportation project,’” and thus were automatically
exempt from disclosure. Id. at 548. The Court of Appeals disagreed, holding:
Again, while records, memoranda, or notes of what was said
during these conversations might amount to “confidential commercial
information,” the fact that the Governor . . . made a telephone call to
a particular number is not itself, standing alone, “commercial”
information. In order to so qualify, the [Governor] would need to
explain, for in camera consideration by the court, why the record of
each such allegedly sensitive telephone call, if turned over to the Post,
would place the Post in the position of potentially jeopardizing
government projects or negotiations at critical stages of development.
Id. at 549.
The facts of Critical Mass are similar to the instant case, because both cases concern
a request for private documents not created by or concerning the government, but provided
to the government on a voluntary basis by a private entity that does not customarily disclose
such documents to the public. See 975 F.2d at 880. The instant case is distinguishable from
Washington Post, because that case concerned an MPIA request for the governor’s schedule
and records of telephone calls between the governor and private parties, which are
quintessential government documents, while the request here concerns the voluntary delivery
to the government of a lease between private parties, which is not a communication with or
a document involving the government itself.6 See 360 Md. at 526.
6
As stated above, appellant abandoned his MPIA request for all communications
between the County and Calvert Tract when he filed a Notice of Partial Voluntary Non-Suit
(continued...)
15
The D.C. Circuit’s rationale behind the Critical Mass test also applies to the instant
case, because the County, like the NRC, has an interest in “its continuing ability to secure
such data on a cooperative basis,” and any risk of disclosure of such private commercial
information would create a chilling effect where the private parties that currently volunteer
such information to the government would, “in all likelihood, refuse further cooperation” to
protect their business interests. 975 F.2d at 878-79. Such rationale was not present in
Washington Post, because the information sought in that case did not include any private
records provided to the Governor on a voluntary basis, but rather the government’s own
telephone and appointment records. See 360 Md. at 525.
In addition, the Office of the Attorney General of Maryland has instructed the
executive branch agencies to follow Critical Mass in complying with the MPIA. In a manual
of instruction, the Attorney General states:
Commercial or financial information that is given to the government
voluntarily should be considered confidential “if it is of the kind that
the provider would not customarily release to the public.” Critical
Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d
871 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993). In general,
the submitter of such material should be consulted before it is
disclosed to a requester.
Office of the Attorney General, MPIA Manual 3-23 (14th ed. 2015); see also Action
Committee for Transit, Inc. v. Town of Chevy Chase, __Md. App. __,__, No. 1204,
6
(...continued)
on October 1, 2013, thirty days before he filed his Notice of Appeal to this Court.
16
September Term 2015 (filed August __, 2016), slip op. at 17, n.20 (“Although the Manual
may not rise to the dignity of a formal opinion by the Attorney General, it is nonetheless a
useful, although not binding, resource for courts.”).
Finally, and most importantly, Calvert Tract satisfied the three elements of the Critical
Mass test; namely, that the record must contain confidential commercial or financial
information that was (1) voluntarily provided to the government and (2) not customarily
released to the public by the private party. See 975 F.2d at 879. First, Calvert Tract
submitted an affidavit stating that the Whole Foods lease was the product of extensive
confidential, commercial negotiations and contained financial information related to the lease
agreement between Calvert Tract and Whole Foods. Second, Calvert Tract voluntarily
submitted a redacted copy of the lease to the County. Third, Calvert Tract’s affidavit stated
that the lease was provided to the County with the intention of it remaining private, and that
Calvert Tract “does not customarily publicly disclose its commercial leases.” 7 Therefore,
because the lease contains “financial or commercial information provided to the [County] on
a voluntary basis,” which would “customarily not be released to the public by [Calvert
Tract],” we hold that the lease is confidential commercial information exempt from
disclosure under GP § 4-335(2). See id.
2.
7
Appellant never filed an affidavit disputing Calvert Tract’s affidavit, and his brief
does not identify any specific deficiencies in such affidavit.
17
Appellant claims that, even if the Whole Foods lease falls under the confidential
commercial information exemption, that exemption does not apply in the instant case,
because the lease was already a matter of public record. Although the existence of the lease
is a matter of public record, we conclude that the confidential commercial information
exemption still applies. We shall explain.
The MPIA’s mandatory exemptions to disclosure, including the confidential
commercial information exemption, do not cover information that “is already well known to
the public.” Gallagher v. Office of Attorney General, 141 Md. App. 664, 672 (2001)
(internal quotation marks omitted); see also CNA Fin. Corp. v. Donovan, 830 F.2d 1132,
1154 (D.C. Cir. 1987) (“To the extent that any data requested under FOIA are in the public
domain, the submitter is unable to make any claim to confidentiality—a sine qua non of
Exemption 4.”), cert. denied, 485 U.S. 977 (1988). The D.C. Circuit has noted, however,
that “substantial differences in level of detail can produce a difference in type of
information,” such that the public information is not identical to the information requested,
and thus Exemption 4 still bars the release of the information requested. Ctr. for Auto Safety
v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 152 (D.C. Cir. 2001).
The “party favoring disclosure has the burden of demonstrating that the information
sought is identical to information already publicly available.” Id. at 151; see also Unidad
Latina En Accion v. U.S. Dep’t of Homeland Sec., 253 F.R.D. 44, 54 (D. Conn. 2008)
(determining that “even if portions of information contained in the withheld documents were
18
otherwise known to some, the withheld documents appear to contain much information that
is otherwise unknown to the public”). The U.S. Court of Appeals for the Second Circuit has
cited various ways parties can meet this burden: they can (1) point to “a permanent public
record of the exact portions” requested, (2) identify “a regulation that requires the disclosure
of the specific information sought,” or (3) show “the precise date and time that the particular
conversation was recorded and the unique identification number assigned to the tape.” Inner
City Press/Cmty. on the Move v. Bd. of Governors of Fed. Reserve Sys., 463 F.3d 239, 249
(2d Cir. 2006) (internal citations and quotation marks omitted).
In Bowen v. U.S. Food & Drug Administration, the U.S. Court of Appeals for the
Ninth Circuit held that the requested records documenting poison tampering of consumer
products were exempt under Exemptions 4 and 6, even though “a small portion of the
requested materials [were] made public” through expert testimony at trial. 925 F.2d 1225,
1228 (9th Cir. 1991). The Ninth Circuit noted that, although the FDA official released
“limited information” regarding cyanide-tracing techniques during his expert testimony, such
disclosure mostly constituted “summaries and conclusions,” but not the “detailed, technical
analysis of the techniques and procedures used” that the appellant was requesting. Id at
1228-29.
Similarly, in New York Civil Liberties Union v. U.S. Dep’t of Homeland Sec., the U.S.
District Court for the Southern District of New York granted the government’s motion for
summary judgment, because the requested information regarding a camera surveillance
19
program in lower Manhattan was not identical to the publicly available information, nor was
it officially disclosed. 771 F. Supp. 2d 289, 292-93 (S.D.N.Y. 2011). The District Court
noted that the information withheld “is far more specific than any information that the
plaintiff has shown to be publicly available,” because although it was generally known that
the government used surveillance cameras and license plate readers, the specific location of
those devices was not publicly known. Id. at 292. Furthermore, the Court determined that
the appellant had “not identified any actual public disclosure” of the program, because the
appellant relied only on three news stories and general knowledge, not any specific disclosure
by a government official. Id. at 293.
Here, all parties agree that the Whole Foods lease exists, and that its existence has
been made public. Appellant argues that the parties to the lease and trigger points within the
lease have been made public, and therefore, these provisions are not protected by the
confidential commercial information exemption. Appellant points to the following statement
in a letter that the County Executive wrote to Kate Kelly, a constituent:
In addition, it is important to appreciate the fact that Whole
Foods market has in fact signed a lease to locate to this property.
From conversation[s] I have had with the real estate brokers for this
company, I believe they are committed to this location as opposed to
other sites. In addition, I am not confident that their commitment to
Prince George’s County expands past this specific site. I strongly
believe that attracting retailers of the quality of Whole Foods is
important to our County. Whole Foods[’s] interest in this site and in
our community is a compliment to Prince George’s County and an
acknowledgment of the attractiveness of the County to quality
retailers.
20
(Emphasis added).
Appellant also submitted an affidavit from Kelly stating that she attended a public
meeting before the University Park Town Council on April 9, 2013, and that, at that meeting,
the project manager for the “Cafritz Project” said:
a) That there is a lease between Whole Foods and Cafritz and it
has a “trigger date.”
b) That the lease requires that grading begin by August 2013.
c) That the August date was tied to requirements in the lease.
d) That the Whole Foods must open by February 2015 (i.e., 18
months from August 2013).
e) That the project is moving toward the lease commencement
date.
Viewing the facts in the light most favorable to appellant, the non-moving party, the
most detailed information that was made public were the existence of a trigger date, the
grading date, and the opening date. The mere fact that the lease’s existence and such dates
were made public does not mean that the contents of the lease should no longer be covered
by the confidential commercial information exemption, because there are “substantial
differences in level of detail” between what was disclosed and the information requested.
See Ctr. for Auto Safety, 244 F.3d at 152. The existence of a trigger date, the grading date,
and the opening date were disclosed in general, summarized terms, and constituted a “small
portion” of the lease, not the detailed, technical, or specific information that appellant was
requesting. See Bowen, 925 F.2d at 1228; New York Civil Liberties Union, 771 F. Supp. 2d
21at 292. Appellant cannot point to a “permanent public record of the exact portions he wishes
to obtain,” nor is there a “regulation that requires [ ] disclosure” of the lease. See Inner City
Press, 463 F.3d at 249.
More importantly, the grading date, the opening date, and the existence of a trigger
date were disclosed by Calvert Tract, not by the County. For an exemption to be waived
through public disclosure, the requested information must have been made public through
an “official and documented disclosure.” Wolf v. Cent. Intelligence Agency, 473 F.3d 370,
378 (D.C. Cir. 2007) (citations and internal quotation marks omitted). “[T]he mere presence
of the information in the public domain is insufficient” to demonstrate official disclosure;
rather, the disclosure must be “authorized or approved by a proper authority.” Wilson v.
McConnell, 501 F. Supp. 2d 545, 556, 558 (S.D.N.Y. 2007), aff’d, 586 F.3d 171 (2d Cir.
2009). In other words, “official disclosure occurs only when the agency responsible for
protecting the information discloses it.” Id. at 559 (concluding that a former agency
employee’s disclosure did not constitute official disclosure). Therefore, disclosure by a
private party does not constitute official disclosure. See Lazaridis v. U.S. Dep’t of State, 934
F. Supp. 2d 21, 35 (D.D.C. 2013) (holding that the appellant’s public disclosure argument
failed, because the person who disclosed information did not “have any authority to speak
or act on behalf of the government”).
Because Calvert Tract, not the County Executive or the County, disclosed the grading
and opening dates, and the existence of a trigger date, such disclosure does not constitute a
22
valid waiver of the confidential commercial information exemption. The County had the
responsibility to protect Calvert Tract’s confidential commercial information, and thus only
the County could waive this responsibility. The only information regarding the lease
disclosed by the County Executive was its existence; such conclusory, summary disclosure
does not constitute a valid waiver of the confidential commercial information exemption.8
3.
Finally, appellant argues that, even if the lease is exempt from disclosure on the
grounds that it contains confidential commercial information, parts of the lease are severable
and thus subject to disclosure. Therefore, according to appellant, the trial court erred by not
conducting an in camera review to determine the lease’s severability. We disagree.
GP § 4-203(c)(3) states that a custodian who denies the application to inspect a public
record “shall . . . permit inspection of any part of the record that is subject to inspection and
is reasonably severable.” Similarly, FOIA provides that “[a]ny reasonably segregable portion
of a record shall be provided to any person requesting such record after deletion of the
8
In Center for Auto Safety v. National Highway Traffic Safety Administration, the
D.C. Circuit explored the relationship between the waiver of a FOIA exemption through
public disclosure and the confidential commercial information exemption, noting that “a one
time disclosure of information regarding a single model in a particular year will not likely
create a genuine issue of material fact regarding the customary disclosure of multi-year,
multi-model information.” 244 F.3d 144, 152 (D.C. Cir. 2001). Similarly, in our case, a
one-time disclosure by a Calvert Tract employee at a community meeting regarding the
lease’s grading date, the opening date, and the existence of a trigger date does not create a
genuine issue of material fact regarding Calvert Tract’s customary disclosure of its
commercial leases to the public at large.
23
portions which are exempt under this subsection.” 5 U.S.C. § 552(b). However, “[i]f the
exempt materials are inextricably intertwined with the non-exempt materials, the entire
document is exempt from mandatory disclosure.” Andrews v. Veterans Admin. of U.S., 838
F.2d 418, 422 (10th Cir.), cert. denied, 488 U.S. 817 (1988).
The Court of Appeals has stated that the “General Assembly did not intend for
custodians broadly to claim exemptions and thereby routinely to pass to the courts the task
of performing in camera inspections.” Cranford, 300 Md. at 777. Trial judges have the
discretion to order an in camera review to determine whether documents are exempt from
disclosure. Id. at 791. The Court noted that the custodian should be able “to present a
sufficiently detailed description and explanation” of the documents “without disclosing
privileged information”; a Vaughn index is another “appropriate approach” for MPIA cases.
Id. at 779 (explaining that a Vaughn index is “a sufficiently detailed description and
explanation to enable the trial court to rule whether a given document, or portion thereof, is
exempt without the necessity of an in camera inspection”); see also Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977 (1974). The trial judge may also
“appropriately exercise its discretion by ordering more detailed affidavits.” Cranford, 300
Md. at 780. The “ultimate standard under the [MPIA] 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.” Id. at 779. Factors for the trial judge
to consider include (1) judicial economy, (2) the conclusory nature of the government’s
24
affidavits, (3) any bad faith on the part of the government, (4) disputes regarding the contents
of the document, (5) whether the government has proposed an in camera review, (6) the
strength of the public interest in disclosure, and (7) whether the government can give a
sufficiently detailed description “without revealing the very information sought to be
protected.” Id. at 779-80 (citing Allen v. Cent. Intelligence Agency, 636 F.2d 1287 (D.C. Cir.
1980)).
Recently, the Court of Appeals explored the interaction between the severability
provision in GP § 4-203(c)(3) and the MPIA’s mandatory exemptions in a case involving an
MPIA request for investigative files concerning racial profiling complaints lodged against
state troopers. NAACP Branches, 430 Md. at 182. The Maryland State Police (“MSP”)
denied certain categories of requested documents, claiming that they fell under the
“personnel records” exemption in GP § 4-311.9 Id. at 183. The trial court conducted an in
camera review of the requested documents, at the conclusion of which the court ordered that
such documents be disclosed, provided that the names and any identifying information of the
state troopers and complainants be redacted. Id. at 184-85.
On appeal, the Court of Appeals stated that the
plain language of §§ [4-304] and [4-203(c)(3)] authorizes redactions
so that the applicant can receive portions of an exempt record which
are severable and the receipt of which does not violate the substance
of the exemption.
9
SG § 10-616(i) at the time the case was published.
25
If a record falling within one of the Act’s exemptions is
redacted in accordance with § [4-203(c)(3)] and, if it is still exempt as
argued by the [MSP] and held by the Court of Special Appeals, no
effect whatsoever would be given to § [4-203(c)(3)]. [This] position
would largely render § [4-203(c)(3)] nugatory[, but] as shown by this
Court’s opinions, § [4-203(c)(3)] is not nugatory.
Id. at 195-96 (citations and internal quotation marks omitted). As a result, the Court upheld
the circuit court’s order directing the disclosure of the redacted records. Id. at 196.
At the motions hearing in the instant case, the following colloquy occurred:
[CALVERT . . . what [appellant] wants the Court
TRACT’S ATTY]: to do is start going line by line through
the lease and guessing what, in the
grocery industry or in the retail
industry or the development industry,
what might be considered proprietary
or not proprietary. And that’s not the
right thing to happen here. Because
what the case law says is also if this is
the kind of document that is not typically
produced and it was–and not typically
made public, then it is not made public.
And if it gets out—if it becomes the
policy of the Court that every time
somebody provides confidential
documents with relates—relating to
economic development that the
[appellants] of the world can file one of
these and then every single document
you provide to the county, the Court’s
going to go over line by line and decide
what we’re going to make public and
what we’re not, nobody’s going to
provide any documents to the county.
Your Honor, this doesn’t happen
anywhere else. You know, in
M ontgom ery C ounty they have
26
developers come in all the time and make
various sophisticated presentations
because they know they’re protected
under the MPIA. All over the country
this happens. And the reason is the
county has to have the ability—that’s
why this exception was put in the
[MPIA]—so that the county would
have the ability to come in and have
confidential conversations w ith
investors.
***
THE COURT: . . . the critical question I guess I have to
ask you is this, is why shouldn’t I look at
it? I mean I know, and we all know my
history, sometimes good, sometimes bad
with developers, as a judge, as a public
official. That’s reality. Life—I’m
scarred a little bit with that. But why
shouldn’t I as a judge look at the lease
and take the black pen out or whatever
pen and redact?
***
[CALVERT TRACT’S No, and for three reasons, Your
ATTY]: Honor. The first reason is that Critical
Mass says, you don’t have to. And that
in fact if it is the kind of document that
is not typically made public, then the
Court does not have to do it. It clearly
falls within that category. A commercial
lease is the kind of document that is not
made public. So the idea of taking a
document, the very nature of which is
confidential, and trying to create public
parts of that document when no part of
these documents are ever made public.
27
This is not a case where people go out
and show parts of the commercial lease
in public. The entirety of these
documents are always confidential.
This is not something where you can say,
well, paragraph 14A or 14B really is a
public document that typically is made
public. There is no part of a
commercial lease that is ever made
public. Everyone knows that. That’s
a part of the industry standard
here. . . . Number two is this. In this
particular case, and with all due
respect to the Court, the Court is not
an expert on what is confidential and
proprietary, either in the retail
industry or the grocery industry.
***
I want to give the Court an example. Just
one example which I think illustrates
this. I have the highest respect for this
Court’s ability, but [appellant] just said,
well, we’re entitled to know who the
signatory is. It may be a very logical
thing for a judge to think, well, you know
what, what’s wrong with him just having
who the signatory is, or the start date?
Those are highly proprietary. But the
Court sitting in camera, in the
chambers, looking at that with a magic
m a r k e r w o u ld h ave n o w a y
of . . . understanding the proprietary
nature of who the signatory is or what
the start date is, just to give two
examples. . . .
THE COURT: So you’re saying I could make a
critical error.
28
[CALVERT TRACT’S Absolutely.
ATTY]:
THE COURT: And not—and it would be—it would be
unknown to me whether I’m making a
right call or wrong call because I
simply don’t have enough information.
[CALVERT TRACT’S Absolutely. And that’s why Critical
ATTY]: Mass exempts these documents in their
entirety.
***
[CALVERT TRACT’S . . . . And that brings us to issue number
ATTY]: three. What [appellant] is really trying to
start here is a new exception to the MPIA
and a new sort of additional step of the
development process across the street.
Because what will happen in every
case, if he is successful in getting the
Court to do a line by line review of this
lease, is that [the County] is going to
have to tell all these developers and
investors, you know, I’d like to see the
lease or part of the lease or a redacted
version, but if I do, I can’t guarantee
you that it’s going to remain
confidential because someone like
[appellant is] going to file an MPIA
request. And one of the 19 or 20
circuit judges across the street are
going to do a line by line review and
they might not all be consistent and
they might have all the same thing, so
I can’t guarantee we can protect the
confidential nature of this. And so
what the investors are going to say is,
we’re not going to show you anything
because we can’t trust what is going
29
to—that our confidential proprietary
corporate information is going to be
protected or not. That’s why it’s a very
simple matter for the Court to follow
Critical Mass here and say, of course you
can’t have the corporate lease here, of
course it’s proprietary, of course it’s
confidential corporate information and of
course as Critical Mass says, this is the
type of information that’s never made
public.
(Emphasis added).
During the above colloquy, the trial court also observed that “[a]s an analytical person
who’s trained in the law, I may not know that certain things are trade secrets or differences
when I look at a lease,” and asked appellant, “what vests me any better than anybody to know
whether it’s a trade secret, whether it’s confidential information or not[?] That’s a difficulty
I have.” In denying appellant’s request for in camera review, the court stated:
I go down a path that I—that is just a perilous path for a judge to do
when it comes to confidential, financial information. What I may
think is disclosable, may not be really disclosable at all, and may be
the revelation of confidential information. And I don’t have
that—that mechanism. I have the ability, as [appellant] says, to do
that. But it is a perilous situation.
We agree with the trial court that in camera review is not appropriate for the Whole
Foods lease. The purpose of the confidential commercial information exemption, as applied
to private records voluntarily submitted to the government, is “to encourage individuals to
provide certain kinds of confidential information to the Government,” and public disclosure
of the lease in question would impair the government’s ability to get this necessary
30
information in the future, because private developers would cease sharing their private leases
with the County if doing so would subject the leases to disclosure, or the possibility of
disclosure, under the MPIA. See Critical Mass, 975 F.2d at 873. In the instant case, Calvert
Tract noted in its affidavit that it “does not customarily publicly disclose its commercial
leases,” that it “intends to pursue negotiations with other businesses” to enter into leases at
the property, and that disclosure of the Whole Foods Lease “would place Calvert [Tract] at
a disadvantage when negotiating future commercial leases for the property.” Therefore, if
we were to rule that portions of the Whole Foods lease may be severable, and thus in camera
review is required, it logically follows that Calvert Tract and other commercial developers
would cease voluntarily providing their leases to the County to avoid any risk of disclosure.
This chilling effect would contravene the legislature’s intent to encourage private parties to
voluntarily share the information that the government does not have a mechanism to compel.
See id at 878.
The case sub judice is distinguishable from Washington Post, where a more detailed
review of the requested documents was necessary to determine whether a mandatory
exemption applied to the entirety of the documents requested. See 360 Md. at 549. In that
case, an in camera review was needed for the government to explain “why the record of each
such allegedly sensitive telephone call, if turned over to the Post, would place the Post in the
position of potentially jeopardizing government projects or negotiations at critical stages of
development.” Id. Conversely, in the instant case, Calvert Tract (1) identified the single
31
document in question as a lease between Calvert Tract and Whole Foods; (2) sufficiently
described the contents of typical commercial leases like the one in question as containing
confidential commercial and proprietary information regarding, among other items, the start
and penalty dates, the penalties, the contracting parties and guarantors, the required and
excluded ancillary uses and fees, and the nature of guarantees; and (3) adequately explained
how disclosure of the lease would jeopardize Calvert Tract’s commercial interests, which
would deter Calvert Tract from sharing commercial leases with the County going forward.
As a result of Calvert Tract’s detailed information regarding the identity of the single
document in question and what is typically contained in such a document, the trial court
could properly determine the applicability of the confidential commercial information
exemption. Unlike in Washington Post, the trial court here had sufficient information in
front of it to consider whether severability was appropriate, and the court did consider and
decide that no portion of the requested document was severable. See 360 Md. at 520.
In NAACP Branches, the Court of Appeals stated that a requesting party “can receive
portions of an exempt record which are severable and the receipt of which does not violate
the substance of the exemption.” 430 Md. at 195 (emphasis added). As stated above, the
substance of the confidential commercial information exemption is to encourage private
parties to share information voluntarily with the government. Here, where a lease between
private parties was never supposed to be made public, severing portions of such lease and
publicly disclosing the same would violate that substance, because it would create a chilling
32
effect on commercial developers’ willingness to voluntarily provide their leases to the
County. As a result, the County’s “continuing ability to secure such data on a cooperative
basis” would be thwarted. See Critical Mass, 975 F.2d at 879. To protect the government’s
interest in “encouraging cooperation with the Government by persons having information
useful to officials,” we hold that, once a trial court determines that the confidential
commercial information exemption applies to a document under the Critical Mass test, that
document is exempt from disclosure in its entirety.10 See id. at 878. Accordingly, the trial
court did not abuse its discretion by denying an in camera review of the Whole Foods lease.
JUDGMENT OF THE CIRCUIT COURT
FO R PRINCE G EO RG E’S CO UNTY
AFFIRMED; APPELLANT TO PAY COSTS.
10
Our holding is consistent with the State Finance and Procurement Article, which
prevents the executive branch from disclosing information provided to it from third parties
in procurement contracts. See Md. Code (1985, 2009 Repl. Vol.), § 13-202(a) of the State
Finance & Procurement Article (“After a solicitation is issued and until a recommendation
is made by a procurement officer, a procurement officer may disclose to a person outside the
Executive Department only: (1) whether a decision has been made regarding a solicitation;
and (2) information that is available to the public under [the MPIA].”). In the federal
context, procurement contracts that contain information covered by Exemption 4 are also
exempt from disclosure in their entirety. See, e.g., Envtl. Tech., Inc. v. U.S. Envtl. Prot.
Agency, 822 F. Supp. 1226, 1229 (E.D. Va. 1993).
33