Lamson v. Montgomery Cnty.

Bernadette Fowler Lamson v. Montgomery County, Md., No. 67, September Term 2017,
Opinion by Hotten, J.
CIVIL LITIGATION – MARYLAND PUBLIC INFORMATION ACT –
DISCRETION OF THE TRIAL COURT – The Court of Appeals held that where there
has been a denial of a Maryland Public Information Request, the proponent of the request
is entitled to judicial review. Upon review, the trial court must evaluate the sufficiency of
the denial by employing one of three methods of review. The method employed is subject
to the discretion of the reviewing court but must be sufficient to demonstrate that the
agency has asserted an exception that is applicable to the disputed documents.
CIVIL LITIGATION – MARYLAND PUBLIC INFORMATION ACT – METHODS
OF REVIEW - The Court of Appeals held that when reviewing the denial of a Maryland
Public Information Request, the trial court may require the presentation of evidence such
as testimony or affidavits, order a Vaughn index, or conduct an in camera review to
determine whether the agency has offered an applicable exception.
Circuit Court for Montgomery County
Case No. 415227
Argued: May 7, 2018 IN THE COURT OF APPEALS
OF MARYLAND
No. 67
September Term, 2017
__________________________________
BERNADETTE FOWLER LAMSON
v.
MONTGOMERY COUNTY, MD
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
__________________________________
Opinion by Hotten, J.
Watts, J., concurs.
__________________________________
Filed: July 31, 2018
2018-07-31
10:32-04:00
The issue before us is a request for the release of notes containing possible personnel
information, relating to the performance of Bernadette Fowler Lamson (“Petitioner”) as an
employee of the Montgomery County Attorney’s office. Petitioner filed a Maryland Public
Information Act (“MPIA”)1 request relative to her personnel file, seeking the disclosure of
supervisory notes that were withheld by her employer, Montgomery County
(“Respondent”) and her supervisor, Silvia Kinch (“Ms. Kinch”). The disputed notes are
divisible into two separate categories. The first consists of three pages of notes that were
removed from Petitioner’s personnel folder prior to its disclosure and the second set
consists of notes that are contained in a personal journal in the exclusive possession and
control of Ms. Kinch. With regard to both, Petitioner asserts that Respondent improperly
withheld the notes when responding to her MPIA request. In response, Respondent
contends that the notes are privileged, non-public information. Petitioner now seeks review
of the grant of summary judgment in Respondent’s favor, to determine whether the
disputed notes were subject to disclosure under the MPIA. For the reasons discussed infra,
we shall vacate the judgment of the Court of Special Appeals and remand with instructions.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was an employee of the Office of the Montgomery County Attorney for
over twenty years. During that time, she received “highly successful” reviews and top
performance ratings. In 2015, Ms. Kinch downgraded Petitioner’s performance rating
from “highly successful” to “successful,” which prevented her from receiving a 20-year,
1
The MPIA is codified as Md. Code, (2014), § 4-101 et seq. of the General
Provisions Article, (“Gen. Prov.”).
2% performance bonus. Prompted by the negative rating, Petitioner requested access to
her personnel file on September 1, 2015, which was provided after three pages of
supervisory notes were redacted. On October 8, 2015, after receiving this response,
Petitioner filed a MPIA request specifying 16 categories of public records, including the
missing notes. Specifically, Petitioner requested the following categories of information:
1. Any and all supervisory notes or other materials written, authored or
prepared by Silvia Kinch, John Markvos and Marc Hansen;
2. Supervisory notes removed from Ms. Lamson’s supervisory file by Ms.
Kinch on or about September l, 2015, including all notes removed by Ms.
Kinch prior to providing Ms. Lamson a copy of her supervisory file;
3. Any and all investigatory files, inquiries, negative statements, or complaints
in which Ms. Lamson is the subject and/or is discussed therein;
4. Ms. Lamson’s proposed transfer from full time status to part time status;
5. Ms. Lamson’s move from her 4th floor office to a 3rd floor office in the
Executive Office Building (“EOB”);
6. Ms. Lamson’s transfer from the Office of the County Attorney (“OCA”)
Division of Human Resources to the Division of Finance and Procurement
or any other OCA division;
7. Ms. Lamson’s removal as counsel to the Montgomery County Fire and
Rescue Service (“MCFRS”);
8. Placement of Jodi Schultz or other OCA staff attorney assigned to MCFRS
matters - except workers’ compensation cases;
9. Ms. Lamson’s proposed change in duty assignment from MCFRS to the
Animal Matters Hearing Board;
10. Ms. Lamson’s FY 2015 performance appraisal;
11. Copy of statement from William “Bill” Scott complaining about Ms. Lamson
and all records discussing Mr. Scott’s complaints about Ms. Lamson;
12. Any and all e-mails or documents discussing Ms. Lamson between and/or
among Marc Hansen, John Markvos, Silvia Kinch, Karen Federman-Henry
and Ed Lattner from February 1, 2015 to the present;
13. Any and all e-mails or documents between and/or among Marc Hansen, John
Markvos, Silvia Kinch, Ed Lattner, and Assistant Chief Ed Radcliff related
to Ms. Lamson’s MCFRS representation and/ or agency assignment, duties,
and/ or responsibilities;
14. Requests, discussions and/ or inquiries to conduct electronic surveillance
and/or tracking on Lamson or other OCA staff members;
15. Any and all data gathered as a result of conducting electronic surveillance
and/or tracking of Lamson or other OCA staff members; and
2
16. Communications with any other agency concerning Bernadette Lamson or
any person including, but not limited to, the Board of Investment Trustees,
Montgomery County Department of Corrections and Rehabilitation,
Montgomery County Revenue Authority, Montgomery County Fire and
Rescue Service, Montgomery County Office of Human Resources, and
retirement agency.
On January 27, 2016, Respondent provided several responses to the MPIA request.
Regarding request number one, Respondent asserted that:
First, while an employee such as Ms. Lamson may review her own personnel
file under [Gen. Prov.] § 4-311[2], supervisory notes are not a part of an
employee’s personnel file under the County’s personnel regulations. MCPR
§ 4-8[3] (“Supervisory notes are not considered official employee records and
are not subject to review by the employee or others.”).
Second, supervisory notes constitute “interagency or intra-agency letters or
memoranda” under [Gen. Prov.] § 4-344 and are also shielded from
disclosure by executive privilege and the Morgan doctrine.[ ] These notes
contain the mental impressions and reveal the internal deliberations of the
writer, Ms. Lamson’s supervisor. Inquiry into the mental processes of an
2
Gen. Prov. § 4-311 provides:
(a) Subject to subsection (b) of this section, a custodian shall deny
inspection of a personnel record of an individual, including an
application, a performance rating, or scholastic achievement
information.
***
(b) A custodian shall allow inspection by:
(1) the person in interest; or
(2) an elected or appointed official who supervises the work of the
individual.
3
The Montgomery County Personnel Regulations provide:
A supervisor may maintain informal notes regarding performance or other
information about an employee under the supervision of that supervisor.
Supervisory notes are not considered official employee records and are not
subject to review by the employee or others.
Montgomery County, Md. Personnel Regulation § 4-8 (2001).
3
administrative decision maker would be contrary to the public interest and
inimical to the integrity of the supervisory process.
Respondent concluded by stating that the supervisory notes constitute attorney work
product. Regarding the second request, Respondent reiterated the rationale advanced in
request one. Regarding the remaining requests, Respondent either provided the
documentation or denied the existence of the document.
Thereafter, Petitioner filed a Complaint on February 24, 2016 in the Circuit Court
for Montgomery County, alleging that Respondent violated the MPIA, and requested that
the court order the disclosure of all relevant documents. In response, Respondent asserted
that both sets of notes were not personnel records and were privileged or confidential by
law, privileged attorney-client documents, attorney work product, or not subject to
disclosure because of executive privilege. Thereafter, Respondent filed a Motion to
Dismiss, or alternatively, a Motion for Summary Judgment. On May 10, 2016, Petitioner
filed a Motion for a Vaughn index,4 seeking judicial review of the requested documents.
Respondent proposed instead that the court conduct an in camera review, contending that
a Vaughn index was only appropriate when the documents are voluminous and suggested
that an in camera review was more practical. On June 22, 2016, the trial court considered
4
The term “Vaughn index” originates from the case of Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973). This process requires the party in possession of a disputed document
to submit a list of documents in possession, setting forth the date, author, general subject
matter and claim of privilege for each document claimed to be exempt from discovery. A
discussion of this term occurs in detail, infra.
4
arguments and issued an oral ruling granting the Respondent’s Motion to Dismiss. The
court stated:
I find that all of these notes kept by Ms. Kinch that have been, the way it’s
been argued to me and briefed to me, are not public records and that they’re
supervisory notes. And they are not included in a personnel file. And they
are exempted under the Montgomery County Code, which talks about
supervisory notes that are excluded. And they’re not governmental.
I don’t want to get to the slope that you guys keep talking about being
slippery. I just don’t think that, I think a supervisor should be able to keep
private notes under the law, and that’s what we have here, and not explain to
the whole world every time he or she does as to what’s in them. And I use
the example that if, in fact, she confides in someone, whether it be a friend
or whether it be a relative or even whether it be another employee, does that
have to be disclosed? In other words, if the [Petitioner] says under Freedom
of Information, have you ever made any derogatory statements to any
personnel members for the Montgomery County? If she had to reveal that or
he at any time, that[sic], I believe, would be an abomination of this rule. I
don’t believe the Legislature intended it to be that way. I think the
Legislature intended that what’s in your personnel file, and we all know what
that means, don’t put that in my personnel file or put that in my personnel
file, things that are going to go with you, be used to evaluate you, and that
work product or mental impressions or discussions or thought processes or
even discussions among other supervisors are not intended under this act the
way I see it.
As a result, the trial court concluded that an in camera review was not required, because
the notes were not considered personnel records pursuant to Montgomery County
Personnel Regulation § 4-8 (2001). Thereafter, Petitioner noted a timely appeal to the
Court of Special Appeals.
The Court of Special Appeals issued its unreported opinion on August 25, 2017.
See Lamson v. Montgomery Cty., No. 892, Sept. Term 2016, (Md. Ct. Spec. App. Aug. 25,
2017), 2017 WL 3668171, cert. granted, 456 Md. 523, 175 A.3d 151 (2017). The Court
rephrased the questions presented by Petitioner and addressed two primary issues. The
5
first issue addressed arguments relating to the trial court’s review of the responses to her
MPIA request. The second issue related to the finding that the personnel notes fell outside
the parameters of an MPIA request. The Court began by outlining the purpose of the
MPIA, noting that the Act was created to grant access to sensitive information pursuant to
several statutory limitations, such as where federal or state law prohibits it, or where the
disclosure of information runs contrary to the public interest. See Glenn v. Maryland Dep’t
of Health & Mental Hygiene, 446 Md. 378, 384, 132 A.3d 245, 249 (2016). Next, the
Court observed that the MPIA generally allows individuals to obtain private records about
themselves, including personnel records and that such records should be provided, in the
absence an adequate justification.
Turning to the merits of the appeal, the Court of Special Appeals determined that
Respondent sufficiently responded to requests three through sixteen, and that Petitioner did
not allege sufficient facts to support challenges to those responses. Regarding requests one
and two, the Court found that the “supervisory notes do not fit within the definition of
excludable ‘supervisory notes’ under the Montgomery County Personnel Regulations, and
that the trial court abused its discretion by failing to review them in camera to determine
whether non-disclosure was justified on other grounds.” Lamson, 2017 WL 3668171, at
*5. In reaching this conclusion, the Court noted that the MPIA preempts any county
regulation imposed under Montgomery County Personnel Regulations and determined that
county regulations could not preclude disclosure of Petitioner’s personnel records. As
such, county regulations could not be used to justify the denial of an MPIA request.
6
Regarding the notes contained in Ms. Kinch’s private journal, the Court determined that
they were not subject to disclosure because they were made by Ms. Kinch in an unofficial
capacity and kept outside of Petitioner’s personnel folder. As such, the Court determined
that they were not public in nature and thus, not subject to disclosure. Following this
decision, Petitioner filed for certiorari, which we granted. 456 Md. 523, 175 A.3d 151
(2017).
STANDARD OF REVIEW
“Judicial review of an agency’s decision on MPIA requests is authorized by Gen.
Prov. § 4-362, which permits a person who is denied inspection of a public record to
challenge the denial by filing a complaint in the circuit court.” Action Comm. for Transit,
Inc. v. Town of Chevy Chase, 229 Md. App. 540, 558, 145 A.3d 640, 650 (2016). “The
standard of review for a trial court’s decision on a government’s response to an MPIA
request is ‘whether that court had an adequate factual basis for the decision it rendered and
whether the decision the court reached was clearly erroneous.’” Id. We have defined the
clearly erroneous standard by stating, “[i]f any competent material evidence exists in
support of the trial court’s factual findings, those findings cannot be held to be clearly
erroneous.” Webb v. Nowak, 433 Md. 666, 678, 72 A.3d 587, 594 (2013). However, “[t]o
the extent the [c]ircuit [c]ourt’s exercise of discretion is based on an interpretation of law,
that aspect of the ruling below is reviewed de novo….” Lamone v. Schlakman, 451 Md.
468, 479, 153 A.3d 144, 151 (2017). Moreover, the Circuit Court for Montgomery County
granted Respondent’s Motion to Dismiss. “We review the grant of a [M]otion to [D]ismiss
7
de novo.” Reichs Ford Rd. Joint Venture v. State Roads Commission of the State Highway
Administration, 388 Md. 500, 509, 880 A.2d 307, 312 (2005). In determining whether the
decision of a lower court was legally correct, we give no deference to the trial court findings
and review the decision under a de novo standard of review. See Walter v. Gunter, 367
Md. 386, 392, 788 A.2d 609, 612 (2002). See also Breslin v. Powell, 421 Md. 266, 277,
26 A.3d 878, 885 (2011). As a result, we shall review the merits of this matter de novo to
determine whether the MPIA was properly interpreted and the grant of the motion to
dismiss was legally correct.
DISCUSSION
The Purpose of the MPIA
The MPIA creates an affirmative right for all persons granting “access to
information about the affairs of government and the official acts of public officials and
employees.” Gen. Prov. § 4-103. See also Glass v. Anne Arundel Cty., 453 Md. 201, 207-
08, 160 A.3d 658, 661-62 (2017). We have explained this right, stating that the MPIA
“was created to ‘provide the public the right to inspect the records of the State government
or of a political subdivision within the State.’” Glenn, 446 Md. at 384, 132 A.3d at 249.
Additionally, we noted that public policy creates “a general presumption in favor of
disclosure of government or public documents.” Id. at 385, 132 A.3d at 249. See also
Maryland Dep’t of State Police v. Maryland State Conference of NAACP Branches, 430
Md. 179, 190, 59 A.3d 1037, 1043 (2013). However, in Glass, we outlined the numerous
exceptions to disclosure contained in the MPIA and classified them into four categories.
8
The first category prevents the disclosure of documents controlled by other laws. Glass,
453 Md. at 209, 160 A.3d at 662. Where a law controls disclosure of a particular document,
Gen. Prov. § 4-301 prevents disclosure of the document. Id. The second category identifies
documents or information that an agency may not disclose, also known as “mandatory
exceptions.” Id. The mandatory exceptions prevent the disclosure of documents or
information and require the custodian of records to deny a request for those records or
information outright. Moreover, “the statute forbids an agency from disclosing certain
types of information that may appear in a record, even if other parts of the record are open
to inspection.” Id. at 209, 160 A.3d at 662–63. See also Gen. Prov. § 4–328 et seq. The
third category of exceptions consists of “discretionary exceptions.” Id. This category
describes the exceptions in the MPIA that require a custodian of record to decide whether
disclosure of the record or information would be contrary to the public interest. The
discretionary exceptions “are ‘discretionary’ not in the sense that the agency may withhold
or disclose as it pleases, but in the sense that the agency must make a judgment whether
the statutory standard for withholding a record—that is, disclosure ‘would be contrary to
the public interest’—is met. Id. at 210, 160 A.3d at 663. Finally, the MPIA permits an
agency to refuse disclosure subject to several enumerated limits. This “catch-all exception”
permits the temporary denial of inspection of records not otherwise exempt from
disclosure, if the custodian believes that inspection would cause substantial injury to the
public interest and the agency obtains a court order within 10 days. Id.
9
One of the mandatory exceptions is set forth in Gen. Prov. § 4-311 and controls the
disclosure of personnel records and requires that the custodian of personnel records “deny
inspection of a personnel record of an individual, including an application, a performance
rating, or scholastic achievement information.” The provision also contains a requirement
that the custodian permit inspection of the record when requested by the “person of
interest” or a supervisor of the person in interest. Id. A “person of interest” is defined as
“a person or governmental unit that is the subject of a public record or a designee of the
person or governmental unit[.]” Gen. Prov. § 4-101(g). A “person of interest” may have
a broader right of access to a record than other persons that may pursue the right to inspect
a record. This provision is in contrast to the provisions governing general records subject
to disclosure and explicitly mandates that the records be kept private, unless requested by
the person in interest or a supervisor of such a person. To be clear, while personnel records
are a sub-category of “public records,” they are largely exempt from disclosure. See Gen.
Prov. § 4-304 (stating, “a custodian shall deny inspection of a public record, as provided
in this part”). As such, where there is an assertion that the records at issue may constitute
personnel records there must be an inquiry into the nature of the records to determine which
rules govern their disclosure. To pursue that examination we must first define both types
of records.
The MPIA broadly defines a “public record” as any document that “is made by a
unit or an instrumentality of the State or of a political subdivision or received by the unit
or instrumentality in connection with the transaction of public business[.]” Gen. Prov. §
10
4-101(j)(1)(i). It includes any copy of a public record, including written documents,
photographs, and drawings in both printed and electronically stored formats. This
definition is in line with the purpose of the MPIA generally. Because the MPIA is designed
to grant access to documents regarding the affairs of government and the official acts of
public officials, it follows that the definition of a public record should be broad enough to
cover a wide range of document types. One type of public record is a personnel record.
These records, which are not explicitly defined by the MPIA, have been addressed by the
Court in Kirwan v. The Diamondback, which discussed the definition of a personnel record
in some detail. 352 Md. 74, 721 A.2d 196 (1998). The Kirwan Court noted that Gen. Prov.
§ 4-311 provides examples of the types of records that constitute personnel records. Gen.
Prov. § 4-311(a) states, “[s]ubject to subsection (b) of this section, a custodian shall deny
inspection of a personnel record of an individual, including an application, a performance
rating, or scholastic achievement information. (Emphasis added). Gen. Prov. § 4-311.
The Kirwan Court then explained that this enumerated list describes what the General
Assembly intended to constitute a personnel record. Kirwan, 352 Md. at 82, 721 A.2d at
200. The Court went on to state that a personnel record consists of “those documents that
directly pertain to employment and an employee’s ability to perform a job.” Id. at 83, 721
A.2d at 200. Further, the Kirwan Court indicated:
[T]he General Assembly intended that any record identifying an employee
would be exempt from disclosure as a personnel record. Instead, the General
Assembly likely intended that the term ‘personnel records’ retain its common
sense meaning. This is indicated by the list following the prohibition on the
release of the personnel records.
11
Id. at 84, 721 A.2d at 200. (Emphasis in original). With these definitions in mind, we must
now determine how they influence the review of a denied MPIA request.
Review of a denied MPIA request
Judicial review of a denied MPIA request is authorized by Gen. Prov. § 4-362. The
provision states that, “whenever a person or governmental unit is denied inspection of a
public record or is not provided with a copy, printout, or photograph of a public record as
requested, the person or governmental unit may file a complaint with the circuit court.”
Gen. Prov. § 4-362(a)(1). This subtitle also contains several prescriptions that govern the
review of a denied request. Specifically, the provision instructs an aggrieved party on the
proper venue for filing a complaint, articulates the limits of the reviewing court, and most
importantly describes the methods that a court may use in evaluating the sufficiency of a
denial of an MPIA. See Gen. Prov. § 4-362(c)(1), (2) and (3).
In reviewing the Motion to Dismiss, we first examine the procedure employed by
the Circuit Court for Montgomery County. The trial court determined that the notes were
not subject to review because such disclosure was precluded by Montgomery County
Personnel Regulation § 4-8. We agree with the finding of the Court of Special Appeals
and determine that Montgomery County Regulations cannot be invoked to prevent
disclosure of records. In reaching this conclusion, we are reminded of our decision in
Police Patrol Sec. Sys., Inc. v. Prince George’s Cty., 378 Md. 702, 711, 838 A.2d 1191,
1196 (2003) (hereinafter “Police Patrol”). In Police Patrol, we considered the relationship
between local ordinances and the prescriptions of the MPIA and determined that “a county
12
charter is subordinate to the public general laws of Maryland.” Id. at 712, 838 A.2d at
1197. We went on to state that “[a] local government ordinance or charter that conflicts
with a public general law enacted by the General Assembly is preempted and thus is
invalid.” Id. In the case at bar, the trial court permitted the invocation of Montgomery
County Personnel Regulation § 4-8 to prevent the disclosure of Petitioner’s personnel
records in contravention of the MPIA. Montgomery County Personnel Regulation § 4-8
categorially precludes the disclosure of records that are permitted under the MPIA. As
such, the regulation conflicts with the express language of the MPIA. Pursuant to Police
Patrol, we must find the regulation invalid as it impermissibly limits the application of a
state law enacted by General Assembly.
Thereafter, the Court of Special Appeals made two determinations relative to the
notes at issue. Regarding the notes that were removed from Petitioner’s physical personnel
file, the Court determined that an additional review of the notes was required so that the
trial court could properly evaluate Respondent’s denial of the MPIA request. Specifically,
the Court noted that the trial court’s reliance on Montgomery County regulations left “no
independent basis for the court to review the notes in camera or to require an index.”
Lamson, 2017 WL 3668171, at *6. The Court went on to determine that its analysis of the
records reopened the question and required further proceedings. We agree. However,
regarding the second set of notes, i.e., the notes contained in Ms. Kinch’s personal journal,
we reach a different conclusion. The Court of Special Appeals determined that the second
set of notes were outside the definition of a personnel record because they were contained
13
in a personal journal that was never a part of Petitioner’s personnel file and were intended
to be private. However, the mere physical location of a record is not necessarily dispositive
of its characterization. It is equally possible that the notes contain entries that relate to
Petitioner’s employment and or the devaluation of her performance rating. In either
instance, there is uncertainty regarding the nature of the records at issue and must be
resolved by closely examining the notes at issue, as well as the exceptions offered thereto.
The plain language of Gen. Prov. § 4-362 permits the trial court to conduct an in
camera review of disputed materials to determine whether they are subject to disclosure.
The subtitle provides “[t]he court may examine the public record in camera to determine
whether any part of the public record may be withheld under this title.” Gen. Prov. § 4-
362(c)(2). In order for a trial court to accomplish this goal, they must be satisfied that the
agency rationale offered in denying a MPIA request is fully supported. With this idea in
mind, we turn to our discussion in Cranford v. Montgomery Cty., 300 Md. 759, 481 A.2d
221 (1984). In Cranford, we examined a trial court’s ability to conduct an inquiry into the
denial of an MPIA request and evaluated what is necessary for the proper denial of a MPIA
request. This case also provides an apt summation of the methods of evaluation and
informs our decision today. At issue in Cranford was a Sentinel Newspaper request for
documents relating to a construction project in Montgomery County Government Center.
Id. at 763, 481 A.2d at 223. In reviewing the merits of the request, we articulated several
holdings that are relevant to the instant dispute. The Court noted competing interests that
are inherent in a MPIA request, which place at issue one party’s statutory right to disclosure
14
and another party’s assertion of an exception that prevents disclosure. Id. at 777, 481 A.2d
at 230. In addressing this tension, the Court noted that
The [MPIA] imposes the burden on the records custodian to make a careful
and thoughtful examination of each document which fairly falls within the
scope of the request in order for the custodian initially to determine whether
the document or any severable portion of the document meets all of the
elements of an exemption.
Id. at 777, 481 A.2d at 230. The Court explained this requirement and stated that “[t]he
General Assembly did not intend for custodians broadly to claim [exceptions] and thereby
routinely to pass to the courts the task of performing in camera inspections.” With this in
mind, the Court established a rule that provides the trial court with discretion in reviewing
disputed documents. The Court determined that, “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
[exceptions].” Id. at 779, 481 A.2d at 231.
To make a “responsible determination” the trial court must make two initial
findings. First, the court must determine whether the documents at issue are a public
“record.” This requires that the court examine whether the notes “were made in connection
with public business” as required by Gen. Prov. § 4-101. If the notes are not public
“record,” then the MPIA does not apply and the records are not required to be disclosed
under the MPIA. If the notes are a public record then the trial court must determine what
type of public records are at issue. This second level of inquiry seeks to classify the records
in a manner that permits the court to apply the appropriate MPIA provisions while
15
reviewing the denied request. This is particularly important in this case because Petitioner
has asserted that the records are personnel records, which are generally subject to
disclosure when requested by the person of interest. See Gen. Prov. § 4-311(b). In
classifying the documents a second time, the trial court must determine whether the
agency’s rationale for denying the request is sufficient. See Cranford, 300 Md. at 780, 481
A.2d at 231 (reaffirming that the burden rests with the agency to demonstrate that an
exception justifies non-disclosure). The second step in making a “reasonable
determination” requires that the trial court review the exceptions made by the agency to
determine whether they are justified. With this step, the trial court must determine whether
the exceptions offered by the agency sufficiently prevent the disclosure of the record.
To make the required determinations, the trial court must apply one of the following
methods in evaluating an MPIA request. The first method is a Vaughn index, which
originates from the case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). This method
has also been described as “a system of itemizing and indexing that correlates each of the
government’s justifications for its refusal to disclose the documents with the actual portions
of the documents at issue.” Lewis v. I.R.S., 823 F.2d 375, 377 n.3 (9th Cir. 1987). We
described this method in Office of State Prosecutor v. Judicial Watch, Inc., 356 Md. 118,
121, 737 A.2d 592, 594 (1999). There we indicated that a Vaughn index “required the
responding party to provide a list of documents in possession, setting forth the date, author,
general subject matter and claim of privilege for each document claimed to be exempt from
16
discovery.” Id. n.1, 737 A.2d at 593 n.1 The Cranford Court addressed this method and
determined that it is a viable alternative to an in camera review.
The second method that can be employed is the submission of testimony or
affidavits, which detail the nature of the denial and establish the basis for the denial. See
Maryland Gen. Prov. § 4-362. In describing this method, the Cranford Court determined
that the agency must demonstrate that the exception applies and may do so by offering
evidence by way of testimony or affidavits from the custodian of record. Cranford, 300
Md. at 779, 481 A.2d at 231.
The final method permits the trial court to conduct an in camera review to evaluate
the merits of an agency denial of an MPIA request. This method is enumerated in Maryland
Gen. Prov. § 4-362 and is appropriate where the submission of other evidence is not
sufficient to evaluate a denial of an MPIA request. This method is also appropriate where
the documents at issue are not voluminous. See Cranford, 300 Md. at 779, 481 A.2d at
231.
Regarding the three methods, the Cranford Court determined that the agency carries
the burden to justify disclosure because of the Court’s refusal to accept conclusory
statements in support of “generalized allegations of [exceptions].” Cranford, 300 Md. at
778, 481 A.2d at 230. The Court also stated that there is an “emphasis on an explanation
which presents enough detail to make understandable the issues involved in the claim of
[exception] without presenting so much detail as to compromise the privileged material…”
Id., 481 A.2d at 230-31. In reaching this conclusion, the Cranford Court reasoned that
17
there may not always be a need to conduct in camera review. As such, the Court
enumerated factors for a trial court to consider when deciding which method to apply. The
factors include judicial economy, the conclusory nature of the agency affidavits, bad faith
on the part of the agency, disputes concerning the contents of the document, whether the
agency has proposed in camera inspection, and the strength of the public interest in
disclosure. Cranford, at 779, 481 A.2d at 231.
In applying the Cranford factors to the case at bar, in camera review may be the
preferable method to review the disputed notes. The first factor, judicial economy, is best
served by conducting in camera review because the documents at issue are not voluminous.
The second factor, which examines the conclusory nature of the exceptions offered,
requires the trial court to evaluate the exceptions and the rationale offered in support
thereof. Where the trial court determines that the exceptions offered are general in nature,
Cranford requires additional inquiry into the exceptions offered. Respondent’s primary
assertion is that the journal notes are privileged attorney-client documents. However, the
trial court did not evaluate the veracity of the assertion. Because the assertion is general in
nature, the trial court must conduct a review that reflects an evaluation of the assertion.
Finally, the last relevant factor considers the fact that the agency suggested in camera. In
the instant case, Respondent, in responding to Petitioner’s request for a Vaughn index,
stated that an in camera review “is available” although Respondent disputed its necessity.
Nonetheless, the trial court should consider Respondent’s statement when deciding the
method of review for the disputed notes.
18
CONCLUSION
Where there has been a denial of a proper MPIA request the proponent of the request
is entitled to judicial review to evaluate the sufficiency of the denial. Further, the trial court
in reviewing the denial must be satisfied that the rationale offered by the agency supports
the denial of the request. To make this determination, the trial court may require the
presentation of evidence such as testimony or affidavits, order a Vaughn index, or conduct
an in camera review. While the trial court is free to employ the method it deems
appropriate under the circumstances there must be a showing that all the requirements of
the asserted exception have been met. Based on an application of the Cranford factors it
appears that in camera review will likely be the appropriate method for review of the
disputed notes. However, regardless of the method applied, the trial court must not permit
Respondent to make generalized allegations and must require that Respondent offer an
explanation that reasonably demonstrates that the exceptions are applicable. In the case at
bar, the trial court granted Respondent’s Motion to Dismiss erroneously. As discussed
supra reliance on Montgomery County Regulations will not support the denial of a valid
MPIA request. Because the trial court ruled on these grounds, the record is devoid of any
evidence that suggests an inquiry was made into the exceptions offered by Respondent. As
such, the trial court did not sufficiently review the denial of Petitioner’s MPIA request.
Therefore, we must vacate the judgment of the Court of Special Appeals and remand the
case to the circuit court for further proceedings consistent with this opinion.
19
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS VACATED.
CASE REMANDED TO THAT
COURT WITH INSTRUCTIONS TO
VACATE THE JUDGMENT OF THE
CIRCUIT COURT FOR
MONTGOMERY COUNTY AND
REMAND TO THAT COURT FOR
FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION. COSTS TO BE PAID BY
THE RESPONDENT.
20
Circuit Court for Montgomery County
Case No. 415227-V
Argued: May 7, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 67
September Term, 2018
______________________________________
BERNADETTE FOWLER LAMSON
v.
MONTGOMERY COUNTY, MARYLAND
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Concurring Opinion by Watts, J.
______________________________________
Filed: July 31, 2018
Respectfully, I concur. I agree with the majority opinion’s holding remanding the
case for further proceedings, but I would remand the case to the Court of Special Appeals
with instructions to vacate the judgment of the Circuit Court for Montgomery County and
order the circuit court to conduct an in camera review of the notes contained in Petitioner’s
supervisor’s journal. The majority opinion remands the case for the circuit court to choose
the method of addressing potential disclosure of the notes in the supervisor’s journal,
stating that “the [circuit] court may require the presentation of evidence such as testimony
or affidavits, order a Vaughn index, or conduct an in camera review.” Maj. Slip Op. at 19.
Indeed, the majority opinion states that, although the circuit “court is free to employ the
method it deems appropriate under the circumstances[,]” “it appears that in camera review
will likely be the appropriate method for review of the disputed notes.” Maj. Slip Op. at
19. In its opinion, the Court of Special Appeals authorized the in camera review of the
supervisory notes contained in Petitioner’s supervisory file. See Lamson v. Montgomery
Cty., 2017 WL 3668171, at *6-*7 (Md. Ct. Spec. App. Aug. 25, 2017). And, I would
expressly conclude that an in camera review is likewise warranted of the notes contained
in Petitioner’s supervisor’s journal as well.
For the above reasons, respectfully, I concur.