Public Information ActUnits or Instrumentalities – Whether Government created Advisory Committees are Subject to the Public Information Act

100 [106 Op. Att’y
PUBLIC INFORMATION ACT
UNITS OR INSTRUMENTALITIES – WHETHER GOVERNMENT-
CREATED ADVISORY COMMITTEES ARE SUBJECT TO THE
PUBLIC INFORMATION ACT
September 28, 2021
The Honorable Paula Fudge
Chair, Town of Chevy Chase View Council
You have asked for our opinion on the applicability of the
Maryland Public Information Act (the “PIA”) to government-
created advisory committees, such as the Stormwater Management
Committee that was formed by the Town of Chevy Chase View
(the “Town”) to, among other things, help identify problems
associated with stormwater runoff in the Town and submit a report
and recommendation on those issues to the Town Council. The
PIA applies to all “public records” in the custody of any “unit” or
“instrumentality of the State or of a political subdivision” of the
State. Md. Code Ann., Gen. Prov. (“GP”) § 4-101(j). Thus, your
question is essentially whether a government-created advisory
committee qualifies as a unit or instrumentality of the relevant State
or local government for purposes of the PIA.
Although the decision as to whether an entity is subject to the
PIA must be made on a case-by-case basis in light of the totality of
the circumstances, an advisory committee that has been created by
a State or local government to provide recommendations to the
government about the government’s public functions will very
likely be a “unit” or “instrumentality” of that government. That is
especially true when the government also controls the membership
of the committee, has control over at least some other aspects of
the committee’s operations, and provides staff or other resources to
the committee. Applying that standard to your specific question,
the Town’s Stormwater Management Committee (the
“Committee”) is unquestionably a “unit or instrumentality” of the
Town under the PIA. Although it is our understanding that the
Committee was recently dissolved once its work was completed,
the Committee was created by the Town to provide advice about
the Town’s public functions, its membership was controlled by the
Town, its actions remained subject to significant control by the
Town, and its administrative support came from the Town.
Gen. 100] 101
I
Background
A. The Public Information Act
The PIA “rests on the principle that ‘[a]ll persons are entitled
to have access to information about the affairs of government and
the official acts of public officials and employees.’” 97 Opinions
of the Attorney General 95, 97 (2012) (quoting what is now GP § 4-
103(a)). Consistent with that principle, the statute governs access
to all “public records,” which are defined in relevant part as “any
documentary material . . . 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.” GP § 4-101(j) (emphasis added). 1 The PIA thus applies
to any “unit or instrumentality” of the State or of a political
subdivision of the State, unless that unit or instrumentality has been
exempted by other law. See, e.g., Napata v. University of Md. Med.
Sys. Corp., 417 Md. 724, 733-40 (2011) (concluding that the
University of Maryland Medical System (“UMMS”) was a “unit or
instrumentality” under the PIA but was nonetheless exempt from
the PIA because of a separate provision in the UMMS statute).
B. The Town of Chevy Chase View’s Stormwater Management
Committee
Based on the information you have provided, the Town’s
Stormwater Management Committee was created in September of
2020 by formal action of the Town Council to “help identify and
assess short and long-term problems associated with stormwater
runoff in the Town, help discern the scope and nature of the
problems, analyze the efficacy, costs, and benefits of possible
solutions, and submit a report and recommendation to the Council.”
Council of Chevy Chase View, Minutes of Work Session on
Stormwater Management Committee (Sept. 24, 2020) (“September
Council Minutes”). The Council adopted a charter to govern the
structure and functions of the Committee. Id. at 2; see also Town
of Chevy Chase View, Stormwater Management Committee
Charter (Sept. 24, 2020) (“Committee Charter”). According to that
charter, the Committee was supposed to “remain in existence until
1
As of October 1, 2021, this definition will be codified at GP § 4-
101(k). See 2021 Md. Laws, ch. 62. Here, we will use the current
citation, even though it is only current for a few more days.
102 [106 Op. Att’y
it submits its report to the Council, not to exceed one year, but may
be continued by the Council.” Committee Charter at 1.
The Committee was to be composed of between five and nine
members, appointed by the Town Council. September Council
Minutes at 1-2; Committee Charter at 1. The members were
“residents of the Town, who ha[d] an interest, time and/or special
knowledge and skills to work on” the Committee. Committee
Charter at 1. The members all served at the pleasure of the Town
Council, and “[a]ny change to the composition of the Committee
[had to] be approved by the Council.” Id. In addition to these
regular members, the Committee also had “one Council Member
liaison and one Council Member alternate,” who were not voting
members, except that the liaison could “vote in order to break a tie
vote.” Id.
The duties of the Committee were set forth in the
Committee’s charter, as enacted by the Town Council. Those
duties were:
1. To inventory the stormwater drainage
facilities in the Town, and to help determine
ownership and maintenance responsibilities.
2. To assist with an assessment of stormwater
management problems and issues, assist with
communications necessary to engage Town
residents and produce one or more reports
cataloging this effort. These report(s) [were
required to] include, at a minimum, those
issues where Montgomery County is
responsible for solutions, where the Town is
responsible for solutions, where private
residents are responsible for solutions, and
where integrated solutions are required.
3. To prioritize potential actions to solve the
problems defined in item 2.
4. To recommend any changes in Town
ordinances which may be beneficial in
preventing, reducing or eliminating the
negative impact from stormwater runoff.
5. To prepare a final report including the
Committee’s work and recommendations, to
be given to the Council.
Id. at 1-2.
Gen. 100] 103
The Town also provided administrative support to the
Committee. For example, the Town Manager was to “support the
operations of the Committee and assist with the publication of
meeting agendas and minutes, once they have been prepared by the
Committee,” and “[a]dditional assistance from the Town Manager”
could be “sought by the Committee with the approval of the
Council liaison.” Id. at 2. The Committee could also submit a
request to the Town Council for assistance by consultants, who
would presumably have been paid by the Town. Id. at 1. In
addition, with the approval of a majority of both the Committee and
the Town Council, the Committee was permitted to “contact and
communicate with County and State officials, Town residents, and
others.” Id. at 2.
Finally, the Town Council explicitly addressed the manner in
which the Committee was to hold meetings and manage its records.
As to meetings, the Committee’s charter provided that it “should
meet regularly and at least once a month” and that the meetings
were to “be conducted in compliance with the Maryland Open
Meetings Act.” Id. Similarly, as to records, the charter required
that the Town Manager “be copied on all correspondence to and
from the Committee in order to maintain the public record” and
mandated that the “[r]ecords of the Committee shall be retained in
accordance with the Maryland Public Information Act.” Id.
The Committee presented its final report and
recommendations to the Town Council on July 27, 2021. See
Council of Chevy Chase View, Work Session, Presentation of
Stormwater Management Committee Final Report (July 27, 2021).
Although not reflected in the minutes of the Council’s July 27
meeting, we understand that the Committee was apparently
dissolved following its final presentation, consistent with the
expectation articulated in the Committee’s charter that it would
remain in existence until it submitted its report to the Town
Council. See Committee Charter at 1; Town of Chevy Chase View,
Town Committees, http://chevychaseview.org/wp/government/town-
committees/ (last visited Sept. 10, 2021).
II
Analysis
You have asked for guidance about when an advisory
committee, such as the Town’s Stormwater Management
Committee, qualifies as a “unit” or “instrumentality” of the State
or of a political subdivision for purposes of the PIA. Apparently,
104 [106 Op. Att’y
at least one member of the Committee has expressed doubts that
the PIA applies to the Committee’s records because the Committee
did not itself perform any regulatory functions or itself exercise any
government power.
We start, as always, with the language of the statute. See, e.g.,
Baltimore City Det. Ctr. v. Foy, 461 Md. 627, 637 (2018). The PIA
applies to any “unit” or “instrumentality of the State or of a political
subdivision” of the State. GP § 4-101(j). That language is
intentionally expansive. It covers not just all “unit[s]” of State or
local government but also any “instrumentality” of the State or of
a political subdivision, unless specifically exempted by other law.
The word “instrumentality,” in turn, is ordinarily understood to
mean “[a] thing used to achieve an end or purpose” or “[a] means
or agency through which a function of another entity is
accomplished, such as a branch of a governing body.” City of
Baltimore Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 333
(2006) (quoting Black’s Law Dictionary 814 (8th ed. 2004)); see
also id. (noting that “instrumentality” can also mean a thing that
serves as “a means, agent, or tool” (quoting Merriam Webster’s
Collegiate Dictionary 607 (10th ed. 1998))).
The language thus suggests that the PIA was intended to have
broad reach. In fact, the PIA itself provides that its language must
generally “be construed in favor of allowing inspection of a public
record.” GP § 4-103(b). And because the General Assembly has
explicitly said that the provisions of the statute “must be liberally
construed . . . in order to effectuate the [PIA’s] broad remedial
purpose” of ensuring public access to information about the affairs
of government, City of Baltimore Dev. Corp., 395 Md. at 333(internal quotation marks omitted), the Court of Appeals has
interpreted the already broad language of the PIA’s scope provision
especially broadly “in favor of inclusion,” A.S. Abell Publ’g Co. v.
Mezzanote, 297 Md. 26, 32 (1983).
Given the PIA’s expansive language and the broad remedial
purposes behind the statute, it is ordinarily the case that an entity
created by the government will be subject to the PIA. The more
difficult questions tend to arise when the government either creates
an entity with significant private characteristics or imbues an
ostensibly private entity with significant governmental
characteristics. In such cases involving entities that are quasi-
governmental (or, put another way, quasi-private) in nature, the
Maryland courts have explained that “there is no single test for
determining whether an entity is a unit or instrumentality” under
the PIA and that, instead, “[a]ll aspects of the interrelationship
Gen. 100] 105
between the [government] and the . . . entity must be examined in
order to determine its status.” Napata, 417 Md. at 733; see also
Letter from Robert N. McDonald, Chief Counsel for Opinions &
Advice, to Sen. Joan Carter Conway (Oct. 4, 2007) (“Conway
Letter”). 2
There are thus a number of factors that courts will examine to
determine whether an entity qualifies as a “unit or instrumentality”
of the government for purposes of the PIA. One important factor,
as indicated above, is whether the entity has been created by the
government. See, e.g., A.S. Abell Publ’g Co., 297 Md. at 35. 3
Another is whether the entity serves a “public purpose,” Napata,
417 Md. at 737, or performs a “traditionally governmental
function[],” City of Baltimore Dev. Corp., 395 Md. at 335. Also
relevant is the extent to which the entity is subject to government
control, which could include whether the government appoints (or
has the power to remove) the members of the entity’s governing
board, see, e.g., Andy’s Ice Cream, Inc. v. City of Salisbury, 125
2
In some cases, the General Assembly will specifically say that a
particular entity is or is not an “instrumentality of the State.” See, e.g.,
Hum. Servs. § 11-202(c) (specifically providing that the Maryland Legal
Services Corporation is not a unit or instrumentality of the State). In
those cases, the General Assembly’s characterization will ordinarily
govern. Conway Letter at 2. It is also possible for an entity to be
governmental in nature for some purposes (or under some statutes) and
not for other purposes (or under other statutes). See, e.g., 98 Opinions of
the Attorney General 114, 128-29 (2013). Here, we are merely focused
on whether an entity would be a “unit” or “instrumentality” of the State
under the PIA, a context in which the relevant terms have been construed
especially broadly because of the “statutory mandate that the Public
Information Act be liberally construed in order to effectuate its broad
remedial purpose.” A.S. Abell Publ’g Co., 297 Md. at 39.
3
But that factor is by no means dispositive. See City of Baltimore
Dev. Corp., 395 Md. at 335-36 (finding the Baltimore City Development
Corporation to be an instrumentality of Baltimore City even though it
was not created by law); Letter from Bonnie Kirkland, Assistant
Attorney General, to Senator Roy P. Dyson, at 1, 3-4 (Nov. 3, 2008)
(advising that the St. Mary’s Nursing Center was likely subject to the
PIA even though it was not created by the government and had been
incorporated as a private non-profit entity); cf. 63 Opinions of the
Attorney General 106, 109 (1978) (finding Washington College to be a
“private” institution, even though it was originally chartered by the
General Assembly, for purposes of certain provisions in the Maryland
Constitution).
106 [106 Op. Att’y
Md. App. 125, 141 (1999); retains the power to dissolve the entity,
see, e.g., Napata, 417 Md. at 737; or otherwise controls at least
some aspects of the entity’s operations, see, e.g., A.S. Abell Publ’g
Co., 297 Md. at 38 (noting that the entity’s “plan of operation . . .
[was] subject to [the government’s] approval and amendment”);
Andy’s Ice Cream, 125 Md. App. at 141 (relying on the fact that
the Mayor and City Council of Salisbury had veto power over many
of the relevant entity’s decisions). Finally, other factors can
include whether the government provides funding, staffing, or
other resources to the entity, see, e.g., City of Baltimore Dev. Corp.,
395 Md. at 335; 4 has ex officio representation on the entity’s board,
see, e.g., Moberly v. Herboldsheimer, 276 Md. 211, 215, 222-25
(1975); or has granted special tax exemptions or liability
protections to the entity akin to the kind often afforded to
governmental bodies, see, e.g., A.S. Abell Publ’g Co., 297 Md. at
38.
The most important factors in determining whether a quasi-
governmental entity is subject to the PIA are usually “the degree to
which the entity is controlled by the State or local government and
the extent to which the entity performs what would otherwise be
governmental functions.” Conway Letter at 2. But the government
need not have “complete control” over “all aspects of [the] entity’s
operation” for the entity to qualify as a government “instrumentality.”
Napata, 417 Md. at 734. The ultimate emphasis is “on the overall
relationship between the entity and the State government or
political subdivision[,] always remembering that the Legislature
intended this statute to have a broad reach.” City of Baltimore Dev.
Corp., 395 Md. at 335 n.26. We thus consider all of the relevant
factors in light of the totality of the circumstances. See, e.g.,
Napata, 417 Md. at 739-40 (concluding that UMMS was an
instrumentality of the State, though exempt from the PIA under
another statute); City of Baltimore Dev. Corp., 395 Md. at 336(finding the Baltimore Development Corporation to be subject to
the PIA); A.S. Abell Publ’g Co., 297 Md. at 39 (finding the
Maryland Insurance Guaranty Administration subject to the PIA);
Moberly, 276 Md. at 225 (finding the Board of Governors of the
Memorial Hospital of Cumberland subject to the PIA); Andy’s Ice
Cream, 125 Md. App. at 141-42 (finding the Salisbury Zoo
Commission subject to the PIA).
4
The mere receipt of public funds, however, does not necessarily turn
a private entity into a governmental one. See, e.g., Md. Op. Att’y Gen.
No. 96-011 (Feb. 29, 1996) (unpublished); Letter from Kathryn M.
Rowe, Assistant Attorney General, to Del. Kevin Kelly, at 1-2 (Aug. 3,
2006) (concluding that a local volunteer fire department was likely not
subject to the PIA even though it received public funding).
Gen. 100] 107
Those same factors may still be relevant in determining
whether other types of entities are units or instrumentalities of the
government under the PIA, even if they are entities that one would
ordinarily think of as “governmental,” rather than as quasi-
governmental or quasi-private. See 86 Opinions of the Attorney
General 94, 106 (2001) (concluding that a proposed police citizen
review board would be subject to the PIA, because it would be
“created pursuant to a City ordinance, it would perform a public
function related to oversight of the City police department, and its
budget and staff would be subject to the control of the City”). But
when the entity in question cannot be characterized as quasi-
governmental or quasi-private, the factors will generally be much
easier to apply and even more likely to lead to a conclusion that an
entity created by the government is a unit or instrumentality of the
government. After all, the point of the factors is to gauge whether
the “overall relationship” between the entity and the government is
close enough to justify treating the entity as a unit or
instrumentality of the government, City of Baltimore Dev. Corp.,
395 Md. at 335 n.26—a relationship that will ordinarily be easy to
see when the government-created entity does not have any
significant private characteristics. And an entity that is created by
the government to help the government perform its public functions
(and that does not have any characteristics of a private entity)
would also seem to be an “instrumentality” of the government
under the ordinary understanding of that term, that is, “[a] means
or agency through which” the government’s “function[s]” are
“accomplished.” Id. at 333.
Applying those factors, then, an advisory committee is very
likely to be a “unit or instrumentality” under the PIA when it is
created by the government to assist the government in performing
its public functions. Although those two factors alone might be
sufficient to answer the question in many cases, the advisory
committee’s status as a “unit or instrumentality” of the government
will be especially clear when the government also controls the
membership of the committee, maintains control over at least some
of the committee’s operations, can terminate or dissolve the
committee, and provides funding or other kinds of support to the
committee. That type of government-created advisory committee
is a “unit or instrumentality” of government under the ordinary
meaning of that phrase, see id., and the broad remedial purposes
behind the PIA reinforce that the records of such an advisory
committee—which will presumably play an integral role in
government decision-making—should be subject to public
108 [106 Op. Att’y
inspection, at least to the extent otherwise permitted by law. 5 That
conclusion is also consistent with prior advice from our Office, in
which we concluded that an advisory board that had been created
to help make decisions about the placement of speed cameras in
Montgomery County was an instrumentality of the County for
purposes of the PIA. See Letter from Kathryn M. Rowe, Assistant
Attorney General, to Del. Alfred C. Carr (June 2, 2009). 6
Although an advisory committee might not itself exercise any
regulatory power or provide any government services, that does not
mean it is not a “unit or instrumentality” of the government under
the PIA. It is true that our Office has said that one of the most
important factors in determining whether a quasi-governmental
entity is subject to the PIA is if “the entity performs what would
otherwise be governmental functions.” Conway Letter at 2. But
the question there involved whether entities with significant private
characteristics were nonetheless instrumentalities of the government,
not whether a government-created advisory committee would be.
In this context, when an advisory committee has been created by
the government to help that government exercise its functions, the
relationship between the advisory committee and the government
will typically be clearer. And, in any event, we do not read the
reference to “governmental functions” in our prior advice to
necessarily be limited solely to those functions that involve the
actual exercise of governmental power. Rather, in articulating the
relevant factor, the Court of Appeals has focused not just on
whether the entity serves a “traditionally governmental function[],”
City of Baltimore Dev. Corp., 395 Md. at 335, but also on whether
it serves a “public purpose,” e.g., Napata, 417 Md. at 737. Of
5
Of course, some of the records held by an advisory committee will
be protected from disclosure by various exemptions codified in the PIA,
such as the deliberative process privilege. See, e.g., GP § 4-344. And
communications between individual members of the committee that do
not involve the “transaction of public business”—such as emails that are
personal in nature—would not be within the scope of the PIA. See GP
§ 4-101(j) (defining those “public record[s]” subject to the PIA). But
that does not mean that the committee, as a whole, is exempt from the
PIA.
6
Although it was not clear from that advice letter whether the County
government had created the advisory board at issue, the board was
indeed created by an employee within the Montgomery County Police
Department. See 9 OMCB Opinions 279, 280 (2015) (explaining the
history of the advisory board in concluding that the advisory board was
not a “public body” under the specific definition of that term in the Open
Meetings Act, which differs from the meaning of “unit or
instrumentality” in the PIA).
Gen. 100] 109
course, providing advice or recommendations to the government is
not an exclusively public purpose. Private groups also make
recommendations to the government all the time. But when the
recommendations come from an entity that has been created by the
government specifically to advise that government about the
exercise of its functions, that advisory role becomes integral to the
exercise of those governmental functions and, at the very least,
serves a public purpose.
That is not to say that any group providing recommendations
to the government automatically becomes a “unit or instrumentality”
of the government subject to the PIA. When, for example, a clearly
private entity (like the Chamber of Commerce or the American
Civil Liberties Union) submits a recommendation to the government,
that does not transform the entity into an instrumentality of the
government. Or when citizens have organically come together on
their own to form an advocacy group, the group is unlikely to be an
instrumentality of the government, even if the government later
asks for its advice (unless there are other indicia that suggest the
government intended to turn the group into an instrumentality of
the government). 7 We cannot address every hypothetical situation
that might arise; whether the PIA applies to any particular entity
has always been dictated by a multi-factor analysis and a good dose
of common sense. But we suspect that an entity created by the
government to provide that government with advice about how to
exercise its public functions will, as a general rule, be a “unit or
instrumentality” of the government under the PIA.
Based on that understanding, the Town’s Stormwater
Management Committee is unquestionably a “unit or
instrumentality” of the Town. The Committee was created by the
Town to study “stormwater management problems” within the
Town and to provide recommendations to the Town about how to
solve those problems, see Committee Charter at 1-2—matters that
are clearly within the Town’s public functions. The Town also
controlled the membership of the Committee (by appointing its
members and even retaining the power to remove those members
7
Similarly, if a government official or employee asks individual
members of the public for advice and then those individual people
decide, by themselves, to discuss the matters with one another, that does
not mean the government has created an advisory committee as we have
been using that term here. Rather, we are focused here on government
advisory committees that have been intentionally created to serve as
such.
110 [106 Op. Att’y
at will), id. at 1; had ex officio representation on the Committee,
id. at 1; provided administrative staffing and support to the
Committee, id. at 1-2; and maintained approval authority over
when the Committee could “contact and communicate with County
and State officials, Town residents, and others,” id. at 2. The Town
also retained the ability to dissolve the Committee, which was
made clear when the Committee was apparently dissolved upon
submission of its final report, as contemplated by the charter that
created the Committee in the first place. See Committee Charter
at 1. Although the Committee did not itself exercise governmental
power, it was a tool that the Town created to help the Town perform
its public functions regarding stormwater management and to
achieve its governmental purposes. The Committee’s “public
records” are thus subject to the PIA. GP § 4-101(j).
III
Conclusion
In sum, a government-created advisory committee, like the
Town’s Stormwater Management Committee, is very likely to be
subject to the PIA when created by the government to advise the
government as to its public functions, although the decision as to
any particular committee must ultimately be made on a case-by-
case basis. Other factors, such as whether the government
maintains control over the membership of the committee and over
other aspects of the committee’s operations, may also be relevant
to the determination. But even if an advisory committee does not
itself exercise the sovereign power of the government, it can still
be a “unit or instrumentality” of the government for purposes of the
PIA.
Brian E. Frosh
Attorney General of Maryland
Patrick B. Hughes
Chief Counsel,
Opinions & Advice