November 19, 2021
In the fight for police accountability, advocates use public information laws to try to shine a light on police misconduct. But government agencies frequently thwart these efforts by refusing to comply with requests for records under the Maryland Public Information Act (MPIA). This October, the Baltimore Action Legal Team (BALT) and allies, including the Public Justice Center, scored a victory for government transparency with a Court of Special Appeals ruling that requires the Baltimore City State’s Attorney’s Office (SAO) to release its “Do Not Call” list of police with known credibility issues. The Court’s opinion agrees with a PJC amicus brief, written by 2020-21 Murnaghan Fellow Olivia Sedwick, that called for strong enforcement of the MPIA.
Questions about the “Do Not Call” list emerged a couple years ago when in public statements about the Gun Trace Task Force scandal*, Baltimore City State’s Attorney Marilyn Mosby referred to the existence of a list of 305 officers with credibility issues that the office avoids calling to testify in prosecutions. In subsequent weeks, BALT filed three MPIA requests to examine the list and related materials. The SAO denied the requests under the MPIA exemptions for “personnel records” and “attorney work product”. The SAO also denied BALT’s request for a fee waiver, telling BALT that its requests would require 438 hours of clerical and attorney time, resulting in fees of over $18,000 to get the requested public records.
In March 2020, BALT sued the SAO over its refusal to provide the records. The Circuit Court ruled in favor of the SAO, agreeing that release of the records would amount to releasing protected personnel records and/or attorney work-product, even though the judge readily acknowledged the public interest in the records. BALT challenged the ruling, appealing the case to the Court of Special Appeals.
In support of BALT’s appeal, PJC Murnaghan Fellow Olivia Sedwick authored an amicus brief in June 2021 on behalf of a coalition of partners, including the Maryland Office of the Public Defender, Common Cause Maryland, the University of Baltimore School of Law Civil Advocacy Clinic, the Clinical Law Program at the University of Maryland Carey School of Law, and the MDDC Press Association. The brief discussed the legislative history of the MPIA, beginning with the history and purpose of the federal Freedom of Information Act (FOIA) and explaining how the MPIA is the state equivalent of FOIA. Then the brief explained that exemptions under FOIA and the MPIA are intended to be construed narrowly, but Maryland courts and government agencies have betrayed that intention, construing the exemptions far too broadly. The brief highlighted recent amendments to the MPIA that narrow the definition of the “personnel records” exemption and reinforce the understanding that MPIA exemptions need to be interpreted in the way that favors disclosure of public records. Finally, the brief discussed the Maryland Office of the Attorney General’s preliminary and final reports on the MPIA and how state agencies fail, more often than not, to comply with the spirit and the letter of the MPIA.
On October 14, 2021, the Court of Special Appeals reversed the lower court’s decision, ruling that the SAO must release the “Do Not Call” list. The opinion is a resounding victory. First, the Court held that sharing the list does not require release of “personnel records”: the SAO generated the list, not the employer (the police department), and only the names of the officers are recorded, not “whatever an officer did to call into question their credibility.” Second, the Court held that the list was not attorney work-product “prepared because of the prospect of litigation,” lest essentially everything the SAO do be covered by that exception, stating that “[The list] was created regardless of whether any specific officer was going to testify in a particular case.” Finally, the Court held that the fee waiver denials were arbitrary and capricious; the justifications that the SAO put forward – that the request was too burdensome, that BALT was financially capable of covering the fees, and that its requests would not benefit public understanding of the SAO’s operations – were either unfounded or insufficient. We are now supporting BALT’s motion to have the Court’s opinion reported so that it can be used as legal precedent in support of Marylanders’ rights to access public government information.
Despite the strong ruling, the fight to enforce BALT’s MPIA requests isn’t over yet. The list that the SAO released on October 29 only contains 91 names, two-thirds of which are retired officers and many whose misdeeds were already public knowledge. In statements to the press, BALT attorneys contend that this list is not the list that was litigated over and is insufficient to satisfy the SAO’s obligations. BALT will continue to press for the release of the full “Do Not Call” list.
* The Gun Trace Task Force was an elite plainclothes unit of the Baltimore City Police Department whose members used their authority to conduct illegal searches, rob residents, sell drugs, plant BB guns as fake evidence when they shot unarmed people, and make false overtime claims. They targeted people they knew would be disbelieved, raking in hundreds of thousands of dollars through their crimes. Ultimately, eight officers were indicted and convicted of racketeering in a federal investigation.