Glass v. Anne Arundel Co. , 453 Md. 201 ( 2017 )

Gary Alan Glass v. Anne Arundel County, Maryland, et al.
No. 20, September Term 2016
Public Information Act – Custodian of Records. When a government agency stores
records with another entity – for example, when it stores digital records such as emails with
another government agency – but retains control (albeit not physical custody) of those
records, the agency remains responsible for responding to requests for access to those
records under the Public Information Act (“PIA”). The agency’s custodian of such records
must carry out the responsibilities of a custodian of records under the PIA. Maryland Code,
General Provision Article, §4-201 et seq.
Public Information Act – Reasonableness of Search. In responding to a PIA request, an
agency must undertake a reasonable search in a good faith effort to locate all records
responsive to the request. The reasonableness of the search is not measured by whether it
captures every potentially responsive record. Rather, the adequacy of a search is to be
assessed in light of all the relevant circumstances, including the nature of the request and
the willingness of the requestor to focus the request on likely sources of responsive records.
Maryland Code, General Provisions Article, §4-201 et seq.
Public Information Act – Liability for Damages – Knowing and Willful Violation.
There was not clear and convincing evidence that an agency knowingly and willfully
violated the PIA when it conducted a search of archived email in response to a broadly
worded PIA request, reported the results of that search to the requestor, estimated the fees
for review of the emails for privileged material (under alternative ways of proceeding with
the review) prior to inspection by the requestor, and requested direction from the requestor.
Maryland Code, General Provisions Article, §4-362(d).
Public Information Act – Personnel Records Exception – Police Internal Affairs Files.
Records related to an investigation of alleged employee misconduct, such as records
gathered as part of an investigation by the internal affairs division of a police department,
fall within the “personnel records” exception of the PIA if the records are part of an
investigation of a specific identifiable employee, whether or not the records name that
employee. The exception applies even if a broadly-worded PIA request that encompasses
such records does not directly request the records of the internal affairs investigation.
Maryland Code, General Provisions Article, §4-311.
Public Information Act – Injunctive Relief. When an agency has conducted a reasonable
search in response to a PIA request, a circuit court may decline to require a follow-up
search even if it is later determined that the search failed to locate a particular record.
Maryland Code, General Provisions Article, §4-362(c)(3).
Circuit Court for Anne Arundel County
Case No. 02-C-12-170607
Argument: October 13, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 20
September Term, 2016
GARY ALAN GLASS
V.
ANNE ARUNDEL COUNTY,
MARYLAND, ET AL.
_____________________________________
Barbera, C.J.,
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Opinion by McDonald, J.
Watts, J., concurs.
______________________________________
Filed: May 25, 2017
This case began with what Petitioner’s counsel characterized at trial as an episode
of “road rage” between a motorist and an off-duty police officer in September 2010. Who
was at fault we do not know and need not determine. An investigation into the officer’s
conduct apparently exonerated the officer; a traffic citation issued to the motorist resulted
in an acquittal.
The matter did not end there. It has achieved an afterlife in several judicial and
other forums over the past six years. This appeal stems from one of several public records
requests under the Maryland Public Information Act (“PIA”) made by the motorist,
Petitioner Gary A. Glass, to the Police Department of Respondent Anne Arundel County.
The response to that request was coordinated by Respondent Christine Ryder, the Police
Department’s records manager.
The records requests submitted by Mr. Glass to the Police Department initially
targeted the traffic stop and the internal affairs file created by the Police Department in
response to complaints by Mr. Glass about the officer, but later encompassed “any and all”
records related to Mr. Glass. Dissatisfied with the handling of his requests, Mr. Glass filed
at least two lawsuits under the PIA against the County. The lawsuits have resulted in
numerous rulings since 2011 by at least five judges of the Circuit Court for Anne Arundel
County, made against the backdrop of three contemporaneous decisions by this Court
concerning the limits on public access to police internal affairs files under the PIA.
As a result of the rulings in the Circuit Court, Mr. Glass obtained a number of
records that the County had not found in its initial searches in response to his requests or
had initially withheld as privileged. Following a bench trial about whether the County had
committed “knowing and willful” violations of the PIA, the Circuit Court held that the
County had done so in two respects, but declined to award Mr. Glass the injunctive relief
or damages he sought. The Court of Special Appeals disagreed with the Circuit Court in
part and held that there was not clear and convincing evidence of any such violations; it
agreed with the Circuit Court that Mr. Glass was not entitled to the relief he sought.
The alleged violations of the PIA turn on whether the County conducted reasonable
searches in response to the PIA requests made by Mr. Glass, whether the County actually
denied him access to responsive, non-privileged records, and whether a particular privilege
(for personnel records) was properly asserted by the County with respect to certain records.
For the reasons explained below, we reach the same result as the Court of Special Appeals.
I
Background
A. The Maryland Public Information Act
1. General Right of Access to Public Records
The Maryland Public Information Act is currently codified at Maryland Code,
General Provisions (“GP”), §4-101 et seq.1 The statute is similar, although not identical,
1
At the time that Mr. Glass made the records requests that are the subject of this
case, the PIA was codified at Maryland Code, State Government Article (“SG”), §10-611
et seq. In 2014, as part of code revision, the PIA was recodified as part of the new General
2
to the federal Freedom of Information Act (“FOIA”).2 This Court has frequently relied on
case law under FOIA in deciding similar issues under the PIA. See, e.g., Fioretti v.
Maryland State Board of Dental Examiners, 351 Md. 66, 76 (1998).
Based 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,”3
the statute provides members of the public with a right to inspect and copy public records,
subject to certain exceptions. “Public record” is defined broadly as documentary material
that is made or received by a unit of State or local government “in connection with the
transaction of public business.” GP §4-101(j). The statute lists a number of examples of
the myriad forms that a public record may take in addition to paper documents, including
digital or electronic versions. Id. For example, email messages sent in connection with
public business have long been considered to fall within the definition. See 81 Opinions
of the Attorney General 140, 144 (1996).
The PIA spells out a general process for a person to request and obtain access to a
public record (or, if access is denied, learn the reason why). GP §4-201 et seq. The statute
is to be construed “in favor of allowing inspection of a public record, with the least cost
Provisions Article. Chapter 94, §2, Laws of Maryland 2014. In this opinion we shall refer
to the provisions of the PIA by their current codification, unless otherwise noted.
2
5 U.S.C. §552.
3
GP §4-103(a).
3
and least delay” to the requestor, unless “an unwarranted invasion of … privacy” would
result with respect to a particular person to whom the record pertains. GP §4-103(b).
2. Exceptions to Disclosure Obligation
While the PIA creates a general right of access to public records, it also sets forth
numerous exceptions to that general rule. The exceptions fall into four basic categories.
(1) Disclosure Controlled by Other Law. The PIA generally defers to the dictates
of other laws that control disclosure of a particular public record. Thus, if another law –
e.g., constitutional provision, statute, common law privilege – forbids disclosure of a
record, or gives the agency discretion not to disclose the record, that other law controls
disclosure of the record. See GP §4-301.4 For example, a record of a communication
covered by attorney-client privilege would not be disclosed in response to a PIA request,
unless the client waived the privilege. GP §4-301(1).
(2) Mandatory Exceptions. The PIA itself forbids disclosure of certain specified
categories of records. See GP §4-304 et seq. Similarly, 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. See GP §4-328 et seq. These exceptions to the PIA’s
4
The PIA also defers to “other law” to the extent that other law makes a record
available to public inspection, even if the PIA would allow an agency to withhold the
record. Each of the categories of exceptions to disclosure created by the PIA is qualified
by the phrase “[u]nless otherwise provided by law…” See GP §§4-304, 4-328, 4-343.
Thus, if other law provides for disclosure of a particular record, that mandate trumps the
specific exceptions to disclosure set forth in the PIA.
4
general rule of disclosure are often called mandatory exceptions. An example of a
mandatory exception for entire records, pertinent to this case, is the exception for personnel
records of public employees. GP §4-311.5 An example of a mandatory exception for
information (that may be only a portion of a record) is the exception for confidential
commercial information. GP §4-335.6
(3) Discretionary Exceptions. The PIA specifies other categories of records or
information that an agency may withhold from public inspection if it believes that
disclosure “would be contrary to the public interest.” GP §4-343 et seq. For example, a
custodian may deny inspection of interagency or intra-agency letters and memoranda that
contain pre-decisional deliberations. GP §4-344. Another example is a record of an
investigation conducted by police or prosecutors as well as “an investigatory file compiled
for any other law enforcement, judicial, correctional, or prosecution purpose.” GP §4-
351(a).7 These exceptions to the PIA’s general rule in favor of disclosure are often referred
to as discretionary exceptions. They 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
5
A personnel record is disclosable to “the person in interest” – i.e., the employee –
and to an official who supervises the employee. GP §4-311(b).
6
See, e.g., Amster v. Baker, ___ Md. ___ (2017).
7
An agency may deny inspection of investigatory records to a “person in interest”
only if certain specified harms might result from inspection – for example, interference
with a law enforcement proceeding. GP §4-351(b).
5
judgment whether the statutory standard for withholding a record – that is, disclosure
“would be contrary to the public interest” – is met.
(4) Catch-all Exception by Court Order. Finally, even when disclosure of a record
is not controlled by other law or precluded by one of the PIA’s mandatory or discretionary
exceptions, an agency may – subject to certain procedural requirements – temporarily deny
inspection of the record if the official custodian believes that inspection would cause
“substantial injury to the public interest.” GP §4-358(a). The agency must promptly seek
a court order in order to continue to withhold the record. See Glenn v. Department of
Health and Mental Hygiene, 446 Md. 378 (2016).
3. The Role of the Custodian of Records
The PIA assigns important responsibilities in responding to PIA requests to a
“custodian” of records. The statute defines “custodian” as “any ... authorized individual
who has physical custody and control of a public record.” GP §4-101(d)(2). As is evident,
an agency may have many custodians of its records. A custodian of records has the
responsibility for responding to a PIA request by either allowing inspection of the requested
records or asserting the appropriate exceptions. See GP §4-201 et seq., §4-301 et seq.
Certain special responsibilities are assigned to the “official custodian,” defined as
an “officer or employee [of the agency] who is responsible for keeping a public record,
whether or not the officer or employee has physical custody and control of the public
record.” GP §4-101(f). Some decisions are reserved to the official custodian, such as
designating records to be disclosed without a written request and deciding when to seek a
6
court order under the catch-all exception. GP §§4-201(c), 4-358. An official custodian is
also responsible for “adopting reasonable rules or regulations that ... govern timely
production and inspection of a public record.” GP §4-201(b).
In practice, an agency may designate one of its employees, perhaps called a records
manager or PIA coordinator, to receive PIA requests and coordinate searches and responses
to such requests rather than have each individual custodian (which may include most
employees) respond piecemeal to records requests. In responding to a PIA request, a
designated custodian generally must enlist the assistance of others who actually hold the
records. However, a custodian to whom a PIA request is directed remains responsible for
ensuring that the request is appropriately addressed. Ireland v. Shearin, 417 Md. 401, 409-
10 (2010); ACLU Foundation of Maryland v. Leopold, 223 Md. App. 97, 125 (2015) (the
official custodian may not “kick the PIA responsibility down the chain of command”).
4. The Process for Requesting Access to Records
A person who wishes to inspect or copy public records typically submits a written
request to the appropriate custodian of records. GP §4-202.8 In responding to a PIA
request, the agency is to conduct a search for responsive records. As is the case under the
FOIA, the adequacy of the agency’s search is measured by whether it is reasonably
8
If the application is directed to the wrong government official or employee – i.e.,
one who is not a custodian of the requested records – that individual must notify the
requestor immediately and, if possible, direct the requestor to the appropriate custodian.
GP §4-202(c).
7
calculated to uncover responsive records, not by whether it locates every possible
responsive record. See Ethyl Corp. v. EPA, 25 F.3d 1241, 1246-47 (4th Cir. 1994).
The custodian is to grant or deny the request to inspect the records within 30 days.
If the request is granted, the records are to be made available immediately or after a
reasonable time necessary to retrieve them. GP §4-203. If the request is denied in whole
or in part, the custodian is to provide a written explanation of that decision that includes
the reasons for the denial, the legal authority supporting the denial, and notice of how the
requestor may seek review of that decision. Id. This means that the custodian must specify
which exceptions to the general rule of disclosure apply to any records that are being
withheld from the requestor. If a particular exception applies to only part of a record, the
custodian is to allow inspection of those parts of the record that are open to inspection. GP
§4-203(c)(1)(ii).
5. Fees
An agency may charge a reasonable fee for fulfilling a PIA request, including the
costs of searching for records responsive to the request, reviewing those records for
material that falls within an exception to the PIA’s general rule of disclosure, and making
copies of the records. GP §4-206.9 The fee assessed to the requestor must bear a reasonable
relationship “to the recovery of actual costs incurred by a governmental unit” for the search,
9
The statute provides that an agency may not charge for the first two hours of search
and review time. GP §4-206(c).
8
preparation, and reproduction of requested public records. Id. The fee may be waived if
the custodian decides that it is in the public interest to do so. Id. Following the practice of
federal agencies under FOIA, agencies sometimes require pre-payment of fees or a
commitment to pay fees when the cost of processing a PIA request is likely to be
substantial. See Office of the Attorney General, Maryland Public Information Act Manual
(14th ed. 2015) (“PIA Manual”) at 7-2; Ireland v. Shearin, 417 Md. 401, 412 n.8 (2010).
6. Judicial Review
If an agency denies a request to inspect or copy a public record, the requestor may
seek judicial review of that decision in a circuit court. GP §4-362(a).10 In such an action,
the agency has the burden of sustaining its decision. GP §4-362(b). To facilitate its review,
the circuit court may require the agency to submit a listing of the withheld records and the
basis for withholding each record, sometimes referred to as a “Vaughn index.” Cranford
10
If the agency is subject to the State Administrative Procedure Act, a requestor
also has the option to first seek administrative review of a custodian’s decision to deny
access to records. GP §4-361.
Subsequent to the events that underlie this appeal, the General Assembly created
two other administrative vehicles for resolving disputes over PIA requests. The position
of Public Access Ombudsman was established to mediate disputes over access to public
records. GP §4-1B-01 et seq. In addition, the State Public Information Act Compliance
Board is now available to decide a complaint that a custodian is charging an unreasonable
fee. GP §4-1A-01 et seq. The law creating both of these administrative review options
became effective on October 1, 2015, several months after litigation concluded in the
Circuit Court below. See Chapters 135, 136, Laws of Maryland 2015.
9
v. Montgomery County, 300 Md. 759, 778-79 (1984).11 The court also may choose to
review the withheld records directly and order the agency to submit them for in camera
inspection. GP §4-362(c)(2).
The circuit court may order injunctive relief against the agency – for example, order
the agency to produce a record that was withheld from the requestor. GP §4-362(c)(3). At
the time of the trial of this case, a court could also award actual damages against the agency
if the court found by “clear and convincing evidence” that the agency “knowingly and
willfully” failed to disclose a record in accordance with the PIA. GP §4-362(d).12 If the
requestor substantially prevails in the action, the court may assess reasonable attorney’s
fees and costs against the agency. GP §4-362(f).13
B. Factual Background and Procedural History
The record, as best we can determine,14 reveals the following.
11
A “Vaughn index” is a “list of documents in [the government’s] possession, setting
forth the date, author, general subject matter, and claim of privilege for each document
claimed to be exempt from [disclosure].” Office of State Prosecutor v. Judicial Watch, 356
Md. 118, 122 n.1 (1999). The name is derived from Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973).
12
The PIA has since been amended to also provide for an award of “statutory
damages” up to $1,000. In addition, the “clear and convincing evidence” standard was
dropped from the statute. Chapters 135, 136, Laws of Maryland 2015.
13
If the court finds that the agency’s custodian of records acted “arbitrarily or
capriciously” in withholding records, it is to send a certified copy of that finding to the
appointing authority of the custodian for possible disciplinary action. GP §4-362(e).
14
As the Court of Special Appeals noted in its opinion in this case, the Record
Extract in this case lacks key documents pertinent to the issues on appeal and “spans over
10
1. The Traffic Stop
The bare essentials of the precipitating event – a traffic stop – are undisputed. While
driving on September 14, 2010, Mr. Glass was stopped and detained by Officer Mark
Collier of the Anne Arundel County Police Department, who was off duty at that time.
Officer Collier issued a traffic citation to Mr. Glass for following too closely. As a result
of that encounter, Mr. Glass immediately filed a complaint against Officer Collier with the
Police Department. The Police Department’s Internal Affairs Division launched an
investigation. The incident also resulted in several successive PIA requests by Mr. Glass
to the Police Department. At least two of those PIA requests spawned lawsuits.15
500 pages, has no table of contents, and follows no logical order.” The copy of the Record
Extract provided to us is missing random pages and fails to include the Circuit Court docket
entries, as required by Maryland Rule 8-501(c). Other items from the record that should
appear in the Record Extract are contained in two lengthy appendices to the briefs filed in
the Court of Special Appeals. This is a litigant living dangerously, flirting with dismissal
of the appeal under Maryland Rule 8-602(a)(8).
15
We were informed at oral argument that Mr. Glass has actually instituted seven
related lawsuits under the PIA. Mr. Glass also commenced other litigation against the
County and Officer Collier related to the traffic stop. See, e.g., Glass v. Anne Arundel
County, 38 F. Supp. 3d 705 (D. Md. 2014) (granting partial summary judgment in favor of
Officer Collier with respect to Mr. Glass’ claims under 18 U.S.C. §1983); Glass v. Anne
Arundel County, 2017 WL 203379 (4th Cir. 2017) (dismissing Mr. Glass’ appeal of trial
court’s award of judgment as a matter of law in favor of Officer Collier). At the trial of
this case, Mr. Glass testified that he had also filed complaints with the Attorney Grievance
Commission concerning an Assistant County Attorney and an Assistant State’s Attorney
involved in these cases and a complaint with the Commission on Judicial Disabilities
concerning one of the judges in his cases.
11
2. 2011 PIA Request
On March 18, 2011, Mr. Glass submitted a PIA request to the Police Department,
seeking “all records” from the date of the traffic stop to the date of the request “that refer
to or pertain to Gary A. Glass ... ” (“2011 PIA Request”).16 He specifically sought Officer
Collier’s “logbook and notes,” records of calls made to and from Officer Collier’s cell
phone, and, most importantly for our purposes, “all internal affairs files on [the]
investigation into Mark Collier’s conduct” during the traffic stop (“IA File”).
Apparently, some of the records described in the 2011 PIA Request did not exist
and some had already been provided to Mr. Glass. In a letter to Mr. Glass dated April 14,
2011, Brenda D. Fraser, the Acting Records Manager for the Police Department, explained
that his request for Officer Collier’s IA File was being denied under the personnel records
exception in the PIA. She noted that, because the IA File was created as part of an
investigation of alleged employee misconduct, it was deemed a personnel record. Citing
the statutory exception for personnel records, she informed Mr. Glass that the file could
not be disclosed under the PIA without a court order. Finally, she advised Mr. Glass of his
right, pursuant to the PIA, to seek judicial review of the denial of access.
16
Mr. Glass had made an earlier PIA request shortly after the incident. The Police
Department had provided certain records responsive to that request, but had denied his
request for a copy of a recorded interview of him in connection with his internal affairs
complaint. That PIA request is not at issue in this appeal.
12
3. 2011 PIA Lawsuit
A few weeks later, on May 4, 2011, Mr. Glass filed suit against the County in the
Circuit Court for Anne Arundel County, naming the County, the Police Department, the
Police Chief, and the County Attorney as defendants and alleging violations of the PIA.
On December 22, 2011, the Circuit Court granted summary judgment in favor of the
defendants and explained its reasoning in a written opinion. The court upheld the Police
Department’s decision to withhold Officer Collier’s IA File, citing the personnel records
exception and relying on this Court’s then-recent decision in Montgomery County v.
Shropshire, 420 Md. 362 (2011).17 The court rejected Mr. Glass’ unsupported contentions
that the Police Department had not been truthful in reporting the results of its search for
records in response to his request. Mr. Glass appealed and the Court of Special Appeals
affirmed the Circuit Court’s decision in an unreported opinion on May 28, 2013. This
Court denied his petition for a writ of certiorari. 435 Md. 268 (2013).
4. Disposition of the Traffic Citation
In the meantime, the traffic citation that Officer Collier had issued to Mr. Glass had
been litigated in the District Court of Maryland sitting in Anne Arundel County. Mr. Glass
was acquitted at the trial of that case in November 2011. The details of that case are not
germane to the issues before us. However, we note that, as part of discovery in that case,
Mr. Glass obtained some of the requested records from the IA File after an in camera
17
See Part II.B.3 of this opinion below for a description of the Shropshire case.
13
review of the file by the District Court judge under a procedure that treated that file as an
otherwise privileged personnel record.18
5. 2012 PIA Request
On February 22, 2012 – two months after the Circuit Court had upheld the Police
Department’s withholding of the IA File, but before the resolution of the appeal of that
decision – Mr. Glass submitted another PIA request to the Police Department (“2012 PIA
Request”). This time, Mr. Glass requested “[a]ny and all records of the police department
. . . on Gary A. Glass” without any temporal limitation19 and without specifically requesting
the IA File. Mr. Glass indicated on the form that he was willing to pay fees in connection
with the request “with prior notification.”
In response, Christine Ryder, the Police Records Manager, surveyed everyone in
the Police Department by email. She responded to Mr. Glass in a letter dated March 21,
2012. First, Ms. Ryder alluded to a conversation between Mr. Glass and an Assistant
County Attorney and stated that she would “not address grants and denials previously
made.” Ms. Ryder then listed a number of records that were responsive to the 2012 PIA
18
See Baltimore City Police Department v. State, 158 Md. App. 274 (2004)
(describing procedure for in camera review of law enforcement officer’s personnel file to
determine what, if any, portion of it should be made available to a defendant in a criminal
case).
19
According to Mr. Glass’ testimony at trial, he personally delivered the request to
the Police Department. When a clerk asked if he was looking for records within a specific
date range, he declined to provide one.
14
Request.20 Of the listed records, Ms. Ryder indicated that the Police Department would
withhold one file consisting of five confidential attorney-client communications –
described as a “PIA file maintained by the department’s Records Manager” – based on the
exception for records covered by attorney-client privilege. She stated that the Police
Department would provide copies of the other responsive records, totaling 46 pages, upon
the payment by Mr. Glass of $11.50 in accordance with the Police Department’s fee
schedule.
In her letter, Ms. Ryder also informed Mr. Glass that she had asked the County’s
Office of Information Technology (“OIT”) to search for archived email that might be
responsive to his request for Police Department records, but she had not yet received the
results of that inquiry. (Although not part of her letter, testimony at the trial indicated that
the Police Department’s policy at that time was to store emails on the department’s
computers for 90 days, after which they were archived with OIT.)
Ms. Ryder also noted that the Police Department might have other records
responsive to his request that were not indexed under his name and therefore had not been
located. She solicited his assistance in providing any information that would help locate
such records. Finally, she advised Mr. Glass that he could seek judicial review under the
PIA of the denial of the records covered by attorney-client privilege.
20
Officer Collier’s IA File was not included in this list, presumably because it had
been a subject of the 2011 PIA Request and therefore fell within the category of “grants
and denials previously made.”
15
On March 28, 2012, Mr. Glass responded to Ms. Ryder’s letter. He provided the
names of 11 members of the Police Department whom he believed could have records “that
pertain to me or to the incident on September 14, 2010 involving Officer Mark Collier and
myself.” The list included Officer Collier, the Police Chief, and members of the
department’s Internal Affairs Division, among others. Mr. Glass also listed the names of
three commanders of various units of the department whom he believed could help locate
electronic communications involving the other employees.
Ms. Ryder contacted each of the individuals named in Mr. Glass’ letter who still
worked for the Police Department to double check whether they had records pertaining to
Mr. Glass. In a response to Mr. Glass dated May 9, 2012, Ms. Ryder stated that her further
inquiry based on the names Mr. Glass had listed had turned up one additional record (a
“stored communication log”) that she provided to Mr. Glass at no charge.
In that letter Ms. Ryder also reported the results of the search for archived email
conducted by OIT. She stated that a search using the keyword “Glass” produced
approximately 7,500 emails, and a second search using the keyword phrase “Gary Glass”
narrowed that result to approximately 1,000 emails. She stated that the individual emails,
however, would need to be inspected for attorney-client privilege before release. Ms.
Ryder estimated that it would take 250 hours to review 7,500 emails, which she estimated
would result in a fee of $4,960 for the search and review time. Alternatively, she estimated
that it would take 33 hours to review 1,000 emails, which would result in an estimated fee
of $620. She asked Mr. Glass to let her know how he wished her to proceed. Although
16
the letter itself did not request pre-payment of the estimated fee as a condition of
proceeding with a review of the emails for privileged material, it is apparently undisputed
that, if Mr. Glass had asked Ms. Ryder to proceed with one of the two options she offered,
the County would have required pre-payment to undertake the review.
Mr. Glass did not respond directly to Ms. Ryder’s request for further direction, but
two weeks later sent a letter dated May 23, 2012 to the County Attorney, complaining that
Ms. Ryder’s response did not comply with the PIA. Among other things, Mr. Glass stated
his view that many of the 1,000 archived emails that contained the phrase “Gary Glass”
were likely created by Ms. Ryder herself when she broadcast his 2012 PIA Request to the
entire Police Department in her effort to find records responsive to that request. Mr. Glass
expressed the view that OIT ought to be able to segregate such emails and thereby reduce
the need to review them for privileged material. More broadly, he asserted that “[t]here is
no reason why there would be attorney-client privilege in any of those records of Ms.
Ryder’s search.” He asked the County Attorney to advise Ms. Ryder to conduct the search
and review of the emails as Mr. Glass suggested and provide a new estimate of the number
of emails requiring review for attorney-client privilege. He also requested that the County
waive any fees related to his request. The County Attorney replied in a brief letter dated
May 31, 2012 that opined, without elaboration, that Ms. Ryder’s response to Mr. Glass’s
PIA request had been a “reasonable response . . . consistent with state law.”
17
6. 2012 PIA Lawsuit
Mr. Glass apparently decided not to proceed further with Ms. Ryder or the County
Attorney and, instead, a couple weeks later, on June 19, 2012, filed another lawsuit against
the County under the PIA in the Circuit Court for Anne Arundel County.21 In the
complaint, Mr. Glass made various general allegations that the County had violated the
PIA in its response to his 2012 PIA Request, including failing to conduct a search
reasonably calculated to discover responsive records, failing to comply with time
limitations, charging an unreasonable fee, and failing to grant him a fee waiver. The
specific factual allegations of the complaint focused on his traffic encounter with Officer
Collier and the suggestion by Mr. Glass that the search of archived emails be conducted in
a way that avoided emails seeking responses to his prior PIA requests. He asked the Circuit
Court to order the County to produce a Vaughn index of the archived emails containing the
phrase “Gary Glass,” to isolate those emails related to attorney-client communications and
Ms. Ryder’s search in response to Mr. Glass’s PIA requests, and to release all other emails
to Mr. Glass. He also asked the court to order the County to waive any fees associated
with its response to his PIA request and to pay him actual damages for its failure to provide
the records. Finally, he asked for an award of attorney’s fees and costs.
21
Mr. Glass also named Ms. Ryder and the Police Chief as defendants. The County
Attorney’s Office appeared on behalf of all of the defendants, filing an answer on behalf
of the County and Ms. Ryder and a motion to dismiss on behalf of the Police Chief; the
motion to dismiss the Police Chief was granted on September 26, 2012. In this opinion we
shall refer to the defendants collectively as the County.
18
7. 2013 PIA Request, Second IA Complaint, and Amended Court Complaint
While he was litigating the County’s response to the 2012 PIA Request in the Circuit
Court and its response to the 2011 PIA Request in the Court of Special Appeals, Mr. Glass
submitted another PIA request to the County Executive and Police Chief on February 20,
2013 (“2013 PIA Request”). The 2013 PIA Request sought any records pertaining to him
in the custody of the Police Department that were compiled from February 23, 2012 – the
day after his 2012 PIA Request – to the date of 2013 PIA Request. In the 2013 PIA
Request, he gave some direction to the County on how to conduct the search for records.
Among other things, he stressed that he wanted only pre-existing records, not records
created as part of the searches in response to his prior PIA requests, specified certain
regional and national law enforcement databases he wished to be searched, and requested
a waiver of any fees.
In a letter dated March 7, 2013, Ms. Ryder advised Mr. Glass that she had forwarded
his latest request to OIT to conduct an additional search for archived emails, reported that
no responsive records were found in searches of certain County databases, stated that she
was unable to do a keyword search of one electronic database but offered to undertake a
manual search, and advised Mr. Glass to submit separate record requests to State and
federal agencies with respect to other databases not under the County’s control. She
estimated the fee for the manual search of the remaining database to be $2,560, declined to
waive that fee, but suggested that Mr. Glass could refine the date ranges and individual
users to be searched on that database in order to reduce the cost of the search.
19
Mr. Glass promptly amended the complaint in his 2012 PIA Lawsuit to assert that
the County’s response to his 2013 PIA Request violated the PIA. The amended complaint
also noted that he had made a second complaint to the Police Department concerning
Officer Collier’s conduct after the trial of his traffic case in the District Court. In the
amended complaint he asserted that the County had failed to disclose or properly claim an
exception with respect to the IA File as it pertained to his second complaint against Officer
Collier.22
8. Circuit Court Rulings in 2012 PIA Lawsuit
After filing the 2012 PIA Lawsuit, Mr. Glass pursued discovery against the County
in that case and filed numerous motions over the next two years, which were decided by
various judges of the Circuit Court. We focus here on the proceedings and rulings pertinent
to the particular issues before us.
Archived emails
As a result of discovery in the case, Mr. Glass learned that the results of the initial
archived email search by OIT were contained on a USB memory stick. On December 12,
2012, he asked the Circuit Court to compel the County to produce the USB memory stick
in the 2012 PIA Lawsuit under the civil discovery rules. On January 18, 2013, the Circuit
22
Later in 2013, Mr. Glass sought leave to file a second amended complaint in the
2012 PIA Lawsuit that named an officer of the Internal Affairs Division as a defendant and
that included various allegations related to the investigation of his IA complaints. On
December 20, 2013, the Circuit Court denied leave to file that amended complaint.
20
Court granted Mr. Glass’ motion and ordered the County to produce all non-privileged
documents contained on the USB memory stick within 10 days, and a privilege log as to
any emails that the County withheld. Although the Circuit Court did not purport to be
resolving the merits of the 2012 PIA Lawsuit with respect to the emails, the effect of this
order was to grant Mr. Glass some of the relief that he sought – i.e., it compelled the County
to carry out the proposal made in Ms. Ryder’s May 9, 2012 letter without requiring Mr.
Glass to pay the fees associated with the review of the emails, thus effectively granting him
the email production and fee waiver he had sought in his complaint.
During February 2013, the County undertook a review of the emails on the USB
memory stick and eventually provided Mr. Glass with thousands of emails from the USB
memory stick, but withheld some emails under a claim of privilege. Apparently, all of the
emails on the USB memory stick bore dates after November 2011. Shortly thereafter, Mr.
Glass filed a number of motions, among which was a request that the Circuit Court award
him summary judgment on the ground that the County had violated the PIA in its search
for and disclosure of emails. After considering an opposing memorandum and affidavit
filed by the County, a second judge of the Circuit Court denied that motion.
On August 15, 2013, Mr. Glass again moved for partial summary judgment as to
whether the County had violated the PIA with respect to disclosure of emails dated prior
to November 2011. At a hearing on January 23, 2014, a third judge of the Circuit Court
21
held that the County23 had violated the PIA and awarded partial summary judgment in favor
of Mr. Glass on that motion. The Circuit Court did not provide an oral or written opinion
explaining its reasoning.24 It ordered the County to produce to Mr. Glass within 30 days
all emails for the period from September 14, 2010 through November 2011 that related to
the traffic stop or that pertained to Mr. Glass, except for any emails that fell within an
exception to the PIA’s general principle of disclosure, and ordered the County to identify
any pertinent exception.
Further sparring ensued in the Circuit Court concerning the adequacy of the
County’s subsequent email searches, and the court ordered the County to perform certain
23
In its brief, in which it takes some pains at various points to distinguish “the
Custodian” from “the County,” the County states that the Circuit Court found that “the
Custodian” – Ms. Ryder – had violated the PIA. In fact, the court order referred to “the
Defendants” and, in any event, Ms. Ryder acted on behalf of the County.
24
At the time it entered the order in Mr. Glass’ favor, the judge appeared to treat the
motion for partial summary judgment as unopposed after she had decided to exclude an
affidavit of Ms. Ryder submitted by the County. The judge excluded the affidavit because,
although Ms. Ryder made it under penalties of perjury and recounted her own actions in
response to the PIA requests, the introductory clause of the affidavit recited that it was
“true to the best of my information, knowledge, and belief.” See County Commissioners
of Caroline County v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 101-04 (2000)
(affidavits related to summary judgment motion should be based on personal knowledge).
As noted above, a different judge of the Circuit Court had earlier denied a similar summary
judgment motion by Mr. Glass after the County opposed that motion based on the same
affidavit. Although the merits of excluding the Ryder affidavit are not before us, we note
that affidavits concerning records searches in FOIA cases are often made by the agency
employee who supervised the search, even if that individual did not conduct all aspects of
the search. See, e.g., Carney v. Department of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (in
the context of a summary judgment motion in a FOIA case, “there is no need for the agency
to supply affidavits from each individual who participated in the actual search”).
22
searches based on specific key words, which led to the discovery of additional responsive
archived emails, some of which the County withheld as privileged. The court also
conducted an in camera review of the emails listed on the privilege log and ordered that
some of them should be provided to Mr. Glass. Although the court had initially granted
partial summary judgment in favor of Mr. Glass and ordered the additional searches and
disclosures, it ultimately declined to order any additional searches and made an explicit
finding at a hearing on April 22, 2014 that the County’s searches for archived emails had
been reasonable.
A bench trial was held in January 2015 before a fourth judge of the Circuit Court.
The issues at trial concerned whether the violations of the PIA by the County previously
determined by the Circuit Court were knowing and willful, and would thus entitle Mr.
Glass to an award of actual damages under GP §4-362(d). Mr. Glass also sought to have
the Circuit Court order the County undertake additional searches as a remedy, as well as to
pay his attorney’s fees and costs. At the conclusion of the trial, the judge stated that she
intended to focus on whether the PIA violations that were the subject of the earlier
summary judgment were knowing and willful, and that she would not revisit the basis on
which such violations were determined.25
25
The trial judge stated that “I’m presuming that [the judge who awarded summary
judgment] made all relevant factual findings as to what aspects of the Public Information
Act were violated so that we don’t have to in any way address that.” As noted earlier, at
23
In a memorandum opinion issued on April 8, 2015, the Circuit Court concluded that
the County knowingly and willfully violated the PIA in failing to conduct an adequate
search for the emails requested by Mr. Glass. The court based that conclusion on the fact
that the County had not retrieved emails for dates prior to November 2011 until it did so in
response to orders issued during litigation of the 2012 PIA Lawsuit.
Officer Collier’s IA File
In the complaint that initiated his 2012 PIA lawsuit, Mr. Glass had not alleged that
the County had violated the PIA by failing to disclose Officer Collier’s IA File in response
to his 2012 PIA Request. This is not surprising as the IA File was the subject of his 2011
PIA Request and of the previous lawsuit he had filed based on that request. As recounted
above, the Circuit Court had upheld the County’s denial of the IA file – a decision that was
ultimately affirmed by the Court of Special Appeals in May 2013.
After the Circuit Court had held that the County had properly withheld the IA File
in response to the 2011 PIA Request, but before the Court of Special Appeals had affirmed
that decision, Mr. Glass amended his complaint in the 2012 PIA Lawsuit. The amendments
added allegations related to his second internal affairs complaint about Officer Collier and
asked the Court to order the County to provide a Vaughn index of materials in the IA File.
In a motion for summary judgment filed the same day, Mr. Glass argued that the County
the time the court awarded summary judgment in favor of Mr. Glass with respect to the
archived emails and IA File, it did not make fact findings or explain its reasoning.
24
violated the PIA when it did not address the IA File in its response to his 2012 PIA Request.
Noting that the Circuit Court’s ruling against Mr. Glass with respect to his 2011 PIA
Request for the contents of the IA File was on appeal, the County assured the Circuit Court
that, if the Court of Special Appeals eventually directed the County to release the IA File,
it would do so.
As noted above, Mr. Glass had obtained some documents from the IA File when the
District Court conducted an in camera review of that file in connection with the District
Court trial of his traffic citation.
On June 19, 2013, in response to a motion by Mr. Glass in the 2012 PIA Lawsuit,
the Circuit Court ordered the County to provide Mr. Glass with a Vaughn index of records
placed in the IA File subsequent to the ruling in the 2011 PIA Lawsuit.26 At a hearing on
January 23, 2014, before a different judge of the Circuit Court, the court granted Mr. Glass’
request for reconsideration and ordered the County to also provide a Vaughn index of
material placed in the IA File prior to the ruling in the 2011 PIA Lawsuit. At the same
time, the court awarded partial summary judgment in favor of Mr. Glass with respect to
the IA File, declared that the County had violated the PIA by failing to provide severable
materials from that file, ordered the County to release such materials, and ordered the
26
The Circuit Court did not provide an opinion explaining its reasoning. It appears
to have regarded the December 2011 ruling in the 2011 PIA Lawsuit that the IA File was
a personnel record as res judicata as to records in the file at that time, but not as to records
subsequently placed in the IA File.
25
County to waive any fees. The Circuit Court instructed the County to make “necessary
redactions of the names and identifying information of personnel and witnesses, and
redactions of information that is attorney-client privileged or attorney work product.” The
court did not provide an opinion, either oral or written, explaining the reasoning for its
ruling.27 It is notable that, in requesting that ruling, Mr. Glass relied on this Court’s then-
recent decision in Maryland State Police v. NAACP Branches, 430 Md. 179 (2013), which
concerned a PIA request for severable portions of complaints made to the Maryland State
Police about troopers. In doing so, he pointed out that the Circuit Court’s prior ruling
denying him access to the IA File had preceded NAACP Branches.28
Following the bench trial in January 2015 before a different judge of the Circuit
Court, the court elaborated on the issues concerning the IA File in its memorandum
opinion. In its opinion, the Circuit Court concluded that the County did not knowingly and
willfully violate the PIA when it withheld records from the IA File because the County did
so in the belief that the IA File was a personnel record and that the PIA forbade disclosure
of its contents. The Circuit Court noted that, when Ms. Ryder initially responded to the
2012 Request, the Circuit Court had already upheld the County’s decision to deny access
27
As with Mr. Glass’ partial summary judgment motion regarding archived email,
it appears from the transcript that the court treated this motion as unopposed, in light of its
exclusion of an affidavit submitted by the County as part of the County’s opposition to the
motion. See footnote 24 above.
28
See Part II.B.3 of this opinion below for a description of the NAACP Branches
opinion.
26
to the IA File in response to the 2011 PIA Request. The court noted that the court’s order
in January 2014 requiring release of severable material was likely based on its
understanding of the effect of the NAACP Branches decision, which had been issued after
the County’s response to the 2012 PIA Request. Accordingly, the Circuit Court reasoned,
there was not clear and convincing evidence that the County violated a known legal duty
under the PIA when it withheld the IA File.
Records from Police Chief’s Office
As noted above, Mr. Glass responded to Ms. Ryder’s suggestion that he provide
guidance on where she might find records responsive to his 2012 PIA Request by listing
11 members of the Police Department whom he believed had records responsive to that
request. Among those individuals was the then-incumbent Police Chief.
On October 30, 2014, Mr. Glass moved for partial summary judgment on the basis
that the County had failed to disclose records from the Police Chief’s office. Mr. Glass
pointed to a letter sent on August 25, 2011 by the Police Chief to the State’s Attorney,
requesting assignment of a prosecutor with respect to Mr. Glass’ traffic citation concerning
the September 14, 2010 traffic stop.29 Mr. Glass pointed out that this letter likely still
29
Mr. Glass apparently obtained a copy of this letter from the State’s Attorney’s
Office. In the letter, the Police Chief refers to the fact that Mr. Glass had subpoenaed
various County officials and police employees to appear at the trial of the traffic case, that
the legal issues had exceeded the capability of the officer who had issued the citation, and
that, at a motions hearing in the case, the trial judge had requested the participation of an
Assistant State’s Attorney at the trial.
27
existed at the time of his 2012 PIA Request and that, because it referenced Mr. Glass, was
responsive to that request, but had not been provided by the County in response to that
request.
Mr. Glass also relied on a discovery deposition of Ms. Ryder. In that deposition,
she stated that she was aware that most of the Police Chief’s records were indexed
chronologically rather than by name, but admitted that she had not given the Police Chief’s
assistant any guidance on what time frames to search and that, to her knowledge, the Police
Chief’s assistant did not perform any additional searches of records in the Police Chief’s
office.
Opposing this motion, the County pointed to two emails. In the first, dated March
6, 2012, Ms. Ryder asked the Police Chief’s assistant about obtaining, in response to the
2012 PIA Request, (1) any correspondence sent by Mr. Glass to the Police Chief and (2)
any notes of calls made by Mr. Glass to the Police Chief’s office. In the second email,
dated April 10, 2012, the Police Chief told his assistant (apparently in response to an
inquiry about records responsive to the 2012 PIA Request), that he personally did not
possess any responsive records, but inquired whether she knew “of any records in our
files.” This evidence, the County argued, showed that summary judgment was
inappropriate. On January 18, 2015, the Circuit Court denied the motion.
At the bench trial held the following week, Ms. Ryder again testified about her
efforts to obtain any responsive records located in the Police Chief’s office. She described
how the Police Chief’s assistant told her that, because of the predominantly chronological
28
filing system, it would take “forever” to complete a search of those files without a specific
date range and offered to search further, if a date range were specified.
In its memorandum opinion following the bench trial, the Circuit Court found that
the County’s efforts to obtain responsive records from the Police Chief’s office beyond the
search of records filed by name were inadequate, and that this constituted a knowing and
willful violation of the PIA. The Circuit Court reasoned that Ms. Ryder knew that the files
in the Police Chief’s office were organized chronologically, but that she had failed to
provide the Police Chief’s secretary with “a relevant date range” and the search was thus
limited to a few records filed by name.
Remedial Search Issue
As noted earlier, at the bench trial in January 2015, Mr. Glass asked the Circuit
Court to award him damages, to order the County to conduct “remedial searches,” and to
award him attorney’s fees and costs. With respect to his request for remedial searches, Mr.
Glass asked the court to order the County to conduct a search of all of its computer files,
including back up tapes, as well as all word processing files, among other things.
The Circuit Court found that Mr. Glass had not established actual damages and
declined to award any.30 Nor did the court order any additional searches by the County. It
deferred assessment of attorney’s fees and costs to a later hearing.
30
Mr. Glass had claimed that the County’s response to the 2012 PIA Request had
caused him severe emotional injury, stress, anxiety, sleep disruption, weight gain, loss of
potential income, and damage to personal relationships. The court found that he had not
29
9. Second Appeal to the Court of Special Appeals
Mr. Glass appealed the Circuit Court’s decision, raising a number of issues about
the conduct of the trial, the Circuit Court’s findings, and the remedies he believed it should
have ordered. Mr. Glass challenged, among other things, the Circuit Court’s conclusion
that the County’s refusal to disclose records from the IA File was not a knowing and willful
violation of the PIA. The County cross-appealed, challenging the Circuit Court’s
conclusions that the County had knowingly and willfully violated the PIA with respect to
its searches for archived emails dated prior to November 2011 and for records in the Police
Chief’s office. In its cross-appeal, the County also argued that the County had not violated
the PIA when it had declined to provide records from Officer Collier’s IA File.
In an unreported opinion issued on March 9, 2016, the Court of Special Appeals
affirmed a number of decisions of the Circuit Court related to the trial, but concluded that
the Circuit Court had erred in holding that the County had knowingly and willfully violated
the PIA. As a result, it considered the issues concerning remedies for such violations to be
moot. The court also held that the Circuit Court was not clearly erroneous when it declined
to order injunctive relief in the form of follow-up or “remedial” searches.
Mr. Glass petitioned this Court for a writ of certiorari, which we granted.
established a credible link between his alleged damages and the County’s response to the
PIA request. The damages issue is not before us in this appeal.
30
II
Discussion
In some respects, there is less at stake here than appears at first glance. In a typical
case of judicial review of an agency response to a PIA request, the court must resolve
whether the requestor gets access to the records in question. In this case, Mr. Glass has
had access, for the most part, to many of the records he sought. Rather, the chief issue
before us is whether there is clear and convincing evidence that the County’s response to
his 2012 PIA Request was a knowing and willful violation of the PIA and whether Mr.
Glass is entitled to the “remedial searches” that he seeks.31 Mr. Glass argues that the Court
of Special Appeals erred in answering those questions “no” and focuses on the County’s
search as to three categories of records – the archived emails, the IA File, and records in
the Police Chief’s office.
We agree with the Court of Special Appeals that the record in this case does not
disclose evidence of a violation of the PIA, much less clear and convincing evidence of a
knowing and willful one. Moreover, we agree with the Circuit Court and the Court of
Special Appeals that Mr. Glass is not entitled to injunctive relief in the form of follow-up
or “remedial” searches.
31
As noted above, the issue of whether the Circuit Court should have awarded
damages is not before us.
31
A. Standard of Review
As recounted above, the Circuit Court awarded summary judgment in favor of Mr.
Glass with respect to certain categories of records. Given that summary judgment turns on
a determination of law rather than fact, we review such a determination without deference
to the Circuit Court. Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598 (2013).
The bench trial conducted by the Circuit Court concerned whether those violations could
be characterized as “knowing and willful” and, if so, whether Mr. Glass was entitled to
damages and an order directing further record searches by the County. When a matter is
tried by a court without a jury, an appellate court reviews the case on both the law and the
evidence. Maryland Rule 8-131(c). The trial court’s judgment on the evidence is not to
be set aside unless clearly erroneous. Id. However, no deference is owed to its assessment
of the law. Tribbitt v. State, 403 Md. 638, 644 (2008).
B. Whether the County Violated the PIA
1. The Requirement of a Reasonable Search
Much of this case turns on the adequacy of the County’s response to the 2012 PIA
Request, particularly the breadth of its search for certain records. We begin with a few
words on what kind of search the PIA requires.
An agency that receives a PIA request must conduct a search in good faith that is
reasonably designed to capture all responsive records. In cases under FOIA, the federal
courts have characterized such a search as “a good faith effort to conduct a search for the
32
requested records, using methods that can be reasonably expected to produce the
information requested.” Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir.
1990). This does not mean that the agency must robotically examine every record in its
possession, running up an extravagant fee and diverting public resources in furtherance of
a futile effort; rather, the search should be focused on where responsive records are likely
to be found.
The reasonableness of an agency’s search is to be measured prospectively by how
the agency designed the effort to find responsive records, not retrospectively by its success
in locating every responsive record. A search may be reasonable and adequate without
being perfect. See, e.g., Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th Cir. 1994) (whether
search is reasonable is not assessed by “whether every single potentially responsive
document has been unearthed”).
It is often true that a requestor is at a disadvantage in formulating a PIA request
because the requestor does not know what records the agency keeps or how it keeps them.
It is part of every agency’s mission to be as transparent as the State’s sunshine laws,
including the PIA, require it to be. A public records request is not an occasion for a game
of hide and seek. For that reason, if possible, an agency should in good faith provide some
reasonable assistance to the requestor in refining the request for the records the requestor
seeks. Of course, nothing requires the requestor to accept such assistance.
It is also sometimes the case that a requestor, suspicious of the particular agency or
of government in general, submits a broadly-worded request, intending to afford the agency
33
no excuse for not producing for the records the requestor really wants. Literal compliance
with such a request, however, would often require such a diversion of resources and agency
time as to amount to a huge expense. In practice, a productive response to a PIA request
is often an iterative process in which the agency reports on the type and scope of the files
it holds that may include responsive records, and the requestor refines the request to reduce
the labor (and expense) of searching those records. When the requestor and agency work
together, the process approximates the purpose and policy of the PIA. When they do not,
what results is the requestor insisting on what, to the agency, is an unbounded and
unreasonable search and the agency insisting on what, to the requestor, is an unbounded
and unreasonable fee.
In the end, what the PIA requires is a reasonable search designed to locate all
records responsive to the particular PIA request, not a perfect search that leaves no stone
unturned. Reasonableness must be measured against the specificity of the request and the
willingness of the requestor to focus a request to improve the efficiency of the search. An
agency is not expected to divert its resources to an exhaustive search in response to a
broadly worded request that the requester refuses to focus and at an expense that will not
be recovered.
2. The Archived Emails
As noted above, the Circuit Court concluded, in its memorandum opinion following
the January 2015 trial, that the County had knowingly and willfully violated the PIA with
respect to the archived emails by failing to adequately search for and provide emails for
34
the period prior to November 2011 until it carried out additional searches in response to
court orders during the litigation. On appeal, the Court of Special Appeals reversed that
holding and concluded that the county had not violated the PIA on the alternative grounds
that: (1) because the archived emails were stored with OIT, those emails were no longer
“within the custody and control” of Ms. Ryder and the Police Department, and (2) Ms.
Ryder had never actually denied access to any archived emails to Mr. Glass, but rather had
requested direction from him as to which emails to review and a fee for that review and
production.
We agree with the Court of Special Appeals on the bottom line, but disagree with
part of its reasoning. In our view, the archived emails remained “within the custody and
control” of Ms. Ryder and the Police Department even after they were stored with OIT.
Therefore, under the PIA, Ms. Ryder had an obligation to produce the archived emails in
response to the 2012 PIA Request to the extent they were subject to inspection under the
PIA. However, we agree with the Court of Specials Appeals that there was no denial of
access to the emails – as opposed to a dispute over the conditions of access – that amounted
to a violation of the County’s obligations under the statute.
Who is the Custodian of the Archived Emails?
The County does not dispute that Ms. Ryder, as the records manager for the Police
Department, was the designated custodian of its records for purposes of responding to the
2012 PIA Request. However, it refers to the Police Department’s archived email as
“discarded records” now in the custody of another agency. The County argues that Ms.
35
Ryder was not a custodian of the archived emails stored at OIT and that her efforts with
respect to the emails were undertaken merely as a courtesy to Mr. Glass.
Ms. Ryder’s own actions belie that argument. In her initial response to the 2012
PIA Request, she advised Mr. Glass that she had asked OIT to search archived emails as
part of the Police Department’s response to his request. Her follow-up letter reported the
results of that search and estimated the fees for the Police Department to review the emails
for privileged material. In neither instance did she assert that the records belonged to OIT
as opposed to the Police Department, nor did she re-direct Mr. Glass’ request to OIT, as
she would be required to do under GP §4-202(c) if someone at OIT were the appropriate
custodian. In short, Ms. Ryder acted as the PIA requires a custodian of these records to
act: she timely responded to the PIA request, took responsibility for reviewing the records
and asserting exceptions, and estimated a fee for that review.
There is no question that Ms. Ryder and the Police Department were limited
somewhat in their ability to access the archived emails. Although the archived emails were
not in Ms. Ryder’s immediate physical custody and she needed the assistance of another
County department – OIT – to access them, this apparently was no high hurdle. The OIT
employee who performed the archived email search testified that “basically everybody in
the County” stored electronic records and information with OIT and that requests for
searches of archived email by County agencies were not unusual. Moreover, nothing
indicates that OIT had the authority or – more importantly – the ability to make decisions
concerning inspection of the records. As noted above, the PIA requires custodians to
36
withhold certain categories of records, decide whether privileges apply and should be
asserted, and make decisions as to whether some types of records should be withheld in the
public interest. The County does not assert that OIT can make those decisions as to
archived emails of the Police Department, nor is it self-evident that an agency primarily
responsible for information technology would be able to do so.
A custodian is not relieved of responsibilities under the PIA merely because the
requested records are not at the custodian’s fingertips. Ireland, 417 Md. at 409-10. Indeed,
the Maryland Attorney General has advised that “an agency’s records remain ‘public
records’ even if the agency outsources the task of maintaining them to a private contractor.”
PIA Manual at 1-6 to 1-7; cf. Pleasant v. Pleasant, 97 Md. App. 711, 732 (1993) (noting,
in the discovery context, that “control is not synonymous with possession, but refers to the
right, authority, or ability to obtain upon demand”) (internal quotation marks and citations
omitted).
The County’s characterization of the archived emails as “discarded” appears to
equate OIT to the County dump. But a more apt analogy would be a County warehouse.
While a requestor might submit a PIA request to the supervisor of a County warehouse for
access to records stored at the warehouse, inevitably that request would be forwarded to,
and handled by, a custodian at the agency to whom the records belonged. The same holds
true for records stored electronically.32
32
This does not mean that an agency is required to hire a computer expert and
conduct a forensic examination of its information systems to recover deleted electronic
37
In our view, Ms. Ryder was an appropriate custodian of the archived emails. The
Police Department created those emails and apparently retained the ability to access them
at OIT. When responding to the 2012 PIA request as the Police Department’s designated
custodian, Ms. Ryder treated them the same way she treated the files physically stored at
the Police Department. And, finally, Ms. Ryder and other officials at the Police
Department were responsible for making decisions about whether to release or withhold
records.
Was Access Denied to Responsive Emails Not Protected by Privilege?
While Ms. Ryder was the designated custodian of the Police Department with
responsibility for responding to the 2012 PIA Request concerning the archived emails
stored with OIT, we agree with the Court of Special Appeals that there was “no actual
withholding in the first place.”
When Ms. Ryder reported the results of the archived email search, she provided Mr.
Glass with an estimate of the fees for alternative approaches to reviewing those emails and
records that may be contained in computer backup files in order to respond to a PIA request.
Cf. CareToLive v. FDA, 631 F.3d 336, 342-44 (6th Cir. 2011) (because FOIA requires only
a reasonable search, agency was not required to hire information technology expert to
attempt to recover deleted electronic document). All that the PIA requires is a reasonable
search under the circumstances. If the agency is able – and does – access the particular
records for its own purposes without extraordinary expense, it is not unreasonable for the
agency to cause a similar search of those records when such a search is likely to yield
records responsive to a particular PIA request.
38
sought further direction from him. This was consistent with the provision of the PIA that
allows a custodian to charge a reasonable fee for search and review costs related to
fulfilling a PIA request. GP §4-206(b). The only actual denial of access to any requested
records appeared in Ms. Ryder’s initial response and concerned other records for which
she asserted attorney-client privilege. She assumed that some of the emails located by OIT
might also be privileged, but told Mr. Glass that the emails had to be reviewed to determine
if that was so. It was not farfetched for Ms. Ryder to be concerned that emails including
the phrase “Gary Glass” might be covered by attorney-client privilege as the County
remained in litigation with him over its response to his 2011 PIA Request at the time he
made his 2012 PIA Request.
Mr. Glass responded by writing to the County Attorney, accusing Ms. Ryder of
violating the PIA and asserting that there was no need for the County to review the emails
for privileged material because “[t]here is no reason why there would be an attorney-client
privilege in any of those records of Ms. Ryder’s search.” The County Attorney opined that
Ms. Ryder had acted consistently with the PIA.
Ms. Ryder did not “deny inspection” of the archived emails in her response to the
2012 PIA Request; Mr. Glass was just dissatisfied with the estimated fee.33 It is undisputed
that, as Ms. Ryder testified at trial, at the time the 2012 PIA Lawsuit was filed, she had not
33
We note that, under current law (effective October 1, 2015), Mr. Glass would
have the option to contest Ms. Ryder’s estimated fee with the State Public Information Act
Compliance Board. GP §4-1A-01 et seq.
39
yet reviewed the emails because Mr. Glass had not yet agreed to pay for that review. She
stated that “it’s standard practice when there is a request and the records are so many that
I won’t be able to perform the other functions of my job, it is … the department’s and my
policy that you have to pay the County for that time.” At the time she responded to the
2012 PIA Request, she was not yet aware of gaps in the search results and whether there
was privileged material among the emails that had been located. Although there may have
been other ways to slice and dice the emails, as Mr. Glass suggested, to reduce the time
spent on review and the concomitant cost, that is not the basis on which the Circuit Court
ordered production of the emails during the litigation.
In January 2013, a judge of the Circuit Court ordered the County to produce the
emails on the USB memory stick and a privilege log without payment of a fee in what that
judge apparently viewed as resolution of a discovery dispute, not of the merits of the PIA
case.34 In April 2013, a different judge of the Circuit Court denied Mr. Glass’ motion for
summary judgment as to whether the County violated the PIA because its initial search for
emails did not uncover any dated prior to November 22, 2011. The next year, in January
and April 2014, a third judge of the Circuit Court awarded partial summary judgment
34
A discovery order in a PIA lawsuit ordering production of records sought in the
underlying PIA request is dubious at best, given that disclosure of the records goes to the
merits of the lawsuit. See, e.g., Lane v. Department of Interior, 523 F.3d 1128, 1135 (9th
Cir. 2008) (discovery properly denied in FOIA lawsuit when plaintiff was requesting in
discovery “the very information that is the subject of the FOIA complaint”). However, that
issue is not before us in this case.
40
concerning disclosure of additional archived emails – without explaining the rationale for
that decision – but also made an explicit finding that the searches conducted by the County
of the archived emails had been reasonable.35
In January 2015, when a fourth judge of the Circuit Court conducted the trial of this
case, that judge assumed that the earlier rulings had resolved the question of whether a
violation had occurred and focused on the issue of whether the County had acted knowingly
and willfully, such that Mr. Glass would be eligible for an award of damages. In
concluding that the County had acted knowingly and willfully, the court based its decision
on its conclusion that the County had “fail[ed] to remedy the subsequent search after [the]
court order in 2013.”
The 2013 court order that the Circuit Court referenced was not a ruling on the merits
of the County’s response to Mr. Glass’ 2012 PIA Request, but rather was a discovery order
concerning the USB memory stick. Compliance with that discovery order did not require
the County to undertake further searches. While it may be true that the OIT’s initial search
contained on the USB memory stick did not locate all emails responsive to the 2012 PIA
35
The basis of the Circuit Court’s 2014 order awarding summary judgment as to a
violation of the statute with respect to the archived emails thus is not clear, particularly
given its explicit finding that the County’s email searches were reasonable. As noted
earlier, it may be that the court regarded the summary judgment motion as unopposed, once
it excluded Ms. Ryder’s affidavit on technical grounds. However, exclusion of a party’s
affidavit by itself would not necessarily entitle the opposing party to summary judgment.
See Ashton v. Brown, 339 Md. 70, 79 (1995) (even if relevant facts are undisputed, a grant
of summary judgment is improper if those facts are susceptible to inferences supporting
the position of the party opposing summary judgment).
41
Request, that hardly supports a finding of a knowing and willful violation at the time Ms.
Ryder responded to the 2012 PIA Request. Ms. Ryder had not yet commenced reviewing
the contents of the USB memory stick and was awaiting further direction from Mr. Glass
when he filed the 2012 PIA Lawsuit asserting that she had knowingly and willfully violated
the statute.36 We do not know what would have happened if Mr. Glass had continued to
negotiate the scope of search, – e.g., whether the Ms. Ryder would have asked for a further
search by OIT and would have found earlier emails in a timely manner.
3. Officer Collier’s IA File
Officer Collier’s IA File was a major focus of the 2011 PIA Request and ultimately
became a major focus of the 2012 PIA Request. In wrestling with the question whether
Mr. Glass was entitled to materials from that file, the Circuit Court issued a series of
rulings, which at times appear to be contradictory. Part of the credit for this is attributable
to Mr. Glass’ submission of successive and overlapping PIA requests and part is
36
Mr. Glass argues that the County was obligated to continue to search for records
responsive to his 2012 PIA Request after he had filed suit, even though he had not
committed to pay the fee related to that search and review, and cites several FOIA cases.
See Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 357, 364 (4th Cir. 2009);
Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986); PETA v. BIA, 800 F. Supp. 2d 173,
180 (D.D.C. 2011). However, those cases do not hold that an agency is obliged to continue
a search after suit has been filed, but rather stand for the proposition that a post-litigation
search by an agency may cure perceived inadequacies in a search conducted prior to the
filing of suit. Notably, in the instant case, the judge who granted summary judgment in
Mr. Glass’ favor with respect to the archived emails ultimately declined to order further
searches, explicitly finding that the County’s searches had been reasonable.
42
attributable to the Circuit Court’s effort to keep up with a contemporaneous series of
decisions by this Court concerning the personnel records exception and police IA files.
To place the Circuit Court rulings in context we start with the recent case law
concerning the PIA and IA files.
IA Files under the PIA
As noted earlier, among the mandatory exceptions to the PIA’s general rule of
disclosure is one for “a personnel record of an individual.” GP §4-311. The Legislature
has not defined the phrase “personnel record” in the PIA, although it has included a non-
exhaustive list of examples – “an application, a performance rating, or scholastic
achievement information.” GP §4-311(a). This Court has concluded that the phrase
encompasses records “that directly pertain to employment and an employee’s ability to
perform a job.” Kirwan v. The Diamondback, 352 Md. 74, 82-84 (1998). Thus, for
purposes of the PIA, “personnel record of an individual” includes any record that relates to
a particular employee’s “hiring, discipline, promotion, dismissal, or any matter involving
his status as an employee.” Id. The concept has been further elaborated in case law as to
particular records.
In 2011, this Court considered whether records of an internal affairs investigation
of a police department fell within the personnel records exception. Montgomery County v.
Shropshire, 420 Md. 362 (2011). The Court held that “internal affairs records … related
to employee discipline” of a specific, identifiable police officer are within the personnel
records exception, even if the investigation cleared the officer of wrongdoing. 420 Md. at
43
381. This is because of the “significant public interest in maintaining confidentiality, both
in fairness to the investigated officers and cooperating witnesses.” Id.
Subsequently, the Court recognized an exception to this holding, when the requested
records, even if ultimately destined to become part of an internal affairs file, could not be
associated with the investigation of a particular employee. Maryland Department of State
Police v. Maryland State Conference of NAACP Branches, 430 Md. 179 (2013). In that
case, a requestor made a PIA request for various records of the State Police that related to
that agency’s compliance with a federal consent decree. The State Police produced many
of the records requested, but declined to produce records related to complaints of racial
profiling by troopers, citing the personnel records exception. The circuit court ordered that
the complaints and related records should be disclosed with redaction of the names and any
identification numbers of individual troopers. Id. at 185. This Court held that the redaction
of the identifying information would remove the records from the category of “personnel
record of an individual” because there would be no identifiable “individual” related to the
redacted records. Id. at 195. The Court also relied on the direction in the PIA to permit
inspection of any part of the record that is subject to inspection and is reasonably
severable.37 Id. It noted that this language “authorizes redactions so that the applicant can
At the time of the NAACP Branches decision, the phrase “reasonably severable”
37
appeared in SG §10-614(b)(3)(iii), which was later recodified in GP §4-203(c)(3).
Although the recodification initially retained the “reasonably severable” language, the
General Assembly eventually deleted those words from the provision. Chapters 135, 136,
Laws of Maryland 2015. The law now requires a custodian to allow inspection only “of
44
receive portions of an exempt record which are severable and the receipt of which does not
violate the substance of the exemption.” Id.
In Shropshire, the Court had anticipated the NAACP Branches decision and
distinguished the type of PIA request made in the latter case from the one before it. The
Court noted that the IA records sought in Shropshire pertained specifically to an internal
investigation of the actions of two named officers concerning their investigation of a motor
vehicle accident and allegations of misconduct made against those specific officers. By
contrast, the request in NAACP Branches sought information concerning complaints stored
in the aggregate and, via redaction, without reference to any particular employee. 420 Md.
at 382-83.
In a decision issued after the Circuit Court rulings in this case, this Court recently
confirmed that NAACP Branches does not provide a rationale for disclosing records from
an IA file that is readily identified to a specific officer. Maryland State Police v. Dashiell,
443 Md. 435 (2015). In that case, the requestor sought records pertaining to an internal
investigation conducted by the Maryland State Police arising out of a complaint she had
lodged against a specific officer – i.e., the request encompassed the IA file of that officer.
(The State Police had previously informed the requestor that her complaint had been
sustained and that the officer had been disciplined.) The State Police denied access to any
any part of the record that is subject to inspection.” This change took effect on October 1,
2015.
45
of the records of the internal affairs investigation, asserting the personnel records
exception.
This Court held that the PIA did not allow disclosure of those records in response
to a PIA request, because records related to employee discipline fell within the rubric of
“personnel records.” The Court reasoned that NAACP Branches was “inapposite, because
the instant records, even were redaction possible (which is highly unlikely), would be
related to a specific identified individual.” 443 Md. at 458-59 (parentheses in original).
The Court specifically rejected a suggestion that the circuit court should have conducted
an in camera review and redacted identifying information, noting that the requested records
remained personnel records under the PIA and “in camera review cannot alter that
decision, nor may redaction be effective under the circumstances.” Id. at 460. In short,
because the requested records were from the IA file of a specifically-identified officer, the
agency was authorized – indeed, was required – to withhold them in their entirety.
Personnel Record Exception Applied to Officer Collier’s IA File
Mr. Glass explicitly requested Officer Collier’s IA File in his 2011 PIA Request and
litigated the issue of its availability under the PIA to the Court of Special Appeals. That
court took into consideration both Shropshire and NAACP Branches and upheld the
County’s decision to deny inspection of that file.
The 2012 PIA Request, which Mr. Glass submitted within two months after he was
rebuffed by the Circuit Court in his initial attempt to obtain the IA File, was more broadly
worded than the 2011 PIA Request. To the extent that it encompassed Officer Collier’s IA
46
File, the result should be no different from the result with respect to the earlier, more
specific request. Indeed, Ms. Ryder, the custodian of police records, signaled this result
when she indicated in her initial response that she would not duplicate “grants and denials
previously made.”
In 2014, the Circuit Court awarded summary judgment in favor of Mr. Glass and
ordered the County first to provide Vaughn indexes of the contents of the IA File and later
to provide Mr. Glass with severable portions of the IA File. Although the Circuit Court
did not elaborate its reasoning for its departure from its decision in the 2011 PIA Lawsuit,
it presumably was based on its understanding of the intervening NAACP Branches
decision. After the January 2015 trial, the Circuit Court concluded that any such violation
was not knowing and willful because the law on IA files was in flux at the time the County
withheld those records and the County was acting on its understanding of the law.
Mr. Glass contends that his 2012 PIA Request literally sought records about himself
and did not specifically request an IA file, that the rationale of NAACP Branches controls,
and that he accordingly has a right to redacted versions of any records in Officer Collier’s
IA File that also pertain to himself. He relies on the reference to “severable” parts of
records in GP §4-203 and argues that the PIA requires the Police Department to remove
any “identifying information” related to Officer Collier from records in Officer Collier’s
IA File, some of which would concern the complainant (i.e., Mr. Glass), and release the
redacted records to Mr. Glass.
47
Because of the history of the IA complaints and litigation by Mr. Glass, however,
the origin of those records would be obvious and, therefore, disclosure would “violate the
substance of the [personnel records exception],” NAACP Branches, 430 Md. at 195, which
is intended to preserve the “significant public interest in maintaining confidentiality” of
internal affairs investigations, Shropshire, 420 Md. at 381. There is no contention that any
other IA File would contain documents related to Mr. Glass apart from the file created as
a result of his complaints against Officer Collier. Lest there be any doubt that Mr. Glass
was seeking the IA File that had been denied earlier, when Mr. Glass sought summary
judgment in this case in March 2013, he once again requested Officer Collier’s file by name
when he complained about not receiving “responsive records that are related to the Internal
Affairs investigation of Plaintiff’s complaints against Collier.” Therefore, the County was
legally correct in withholding those records both when Mr. Glass originally submitted the
2012 PIA Request and when he requested them specifically in his motion for summary
judgment.
Unlike the redacted records in NAACP Branches, anything released from Officer
Collier’s IA File in the instant case would be a “personnel record of an individual,” GP §4-
311 (emphasis added) – namely, Officer Collier – and would not be “reasonably severable”
in a manner “which does not violate the substance of the [personnel records] exemption,”
NAACP Branches, 430 Md. at 195. Like the requested records in Dashiell, “the instant
records, even were redaction possible . . ., would be related to a specific identified
individual,” Dashiell, 443 Md. at 458-59 (emphasis added) – and “redaction [cannot] be
48
effective under the circumstances, id. at 460. Therefore, it was not a violation of the PIA
for the Police Department to withhold records from Officer Collier’s IA File.
It appears that Mr. Glass has likely obtained more from the IA File than a requestor
would normally be entitled to under the PIA. He apparently received portions of the file
as discovery during the litigation of his traffic case after an in camera review in the District
Court. And the Circuit Court later granted him access to redacted documents on January
23, 2014, before the Dashiell decision was issued. In his brief, Mr. Glass asserts that,
because the County has complied with that order, the question whether it was required to
disclose parts of the IA File is moot.
Mr. Glass also asserts before us that many of the items in the IA File were not part
of the internal affairs investigation of Officer Collier. Rather, he says, those records were
assembled after (according to Mr. Glass) the Department had concluded its investigation
of his complaint in October 2010 and were used by the Police Department for the defense
of Officer Collier in a federal lawsuit brought by Mr. Glass. The County disputes Mr.
Glass’ conclusion that the IA investigation ended in October 2010, notes that Mr. Glass
filed a second IA complaint against Officer Collier, and points to testimony that
information bearing on the credibility of a complainant is typically part of an IA
investigation, particularly of an incident to which the officer and the complainant are the
only witnesses.
This is not to say that an agency may evade the requirements of the PIA by placing
records in IA files that do not belong there. But none of the judges of the Circuit Court
49
who considered Mr. Glass’ various motions and contentions concerning the IA File made
a finding that the Police Department had placed records in the IA File for purposes
unrelated to its investigation of Mr. Glass’ complaints, and we are not equipped to do so
as an appellate court.
Our holding – that an IA file can be withheld in its entirety, without the need for a
severability review38 – applies only when a PIA request is directed to a specifically-
identified IA file – that is, “a personnel record of an individual.” GP §4-311(a) (emphasis
added). Because Mr. Glass’s request was functionally a request for the IA file of a specific,
identifiable individual (Officer Collier), the County was required to withhold it in its
entirety.39 We thus agree with the Court of Special Appeals that the County did not violate
the PIA in responding to Mr. Glass’ 2012 PIA Request as it related to the IA File. A fortiori,
38
The County argues that the Legislature’s 2015 revision of GP §4-203(c) to
eliminate the phrase “reasonably severable” from the statute reveals a legislative intent to
narrow an agency’s disclosure obligation under the PIA. It is not obvious why this would
be so, as the revised statute now requires a custodian to “allow inspection of any part of
the record that is subject to inspection.” Indeed, the Attorney General’s Office has taken
the position that the amendment broadened a custodian’s obligation to disclose records.
Office of the Attorney General of Maryland, “Summary of New PIA Provisions Effective
October 1, 2015,” Office of the Attorney General of Maryland, “Summary of New PIA
Provisions Effective October 1, 2015,” http://www.marylandattorneygeneral.gov/Open
Gov%20Documents/Summary_PIA_Provisions.pdf [https://perma.cc/S2MT-MNLY] (last
visited April 27, 2017). We need not resolve this question in this case, as the revised statute
was not in effect at the time of the 2012 PIA Request or at the time of the County’s response
to it.
39
The fact that a particular record is included in an IA File does not exempt it from
disclosure in response to a PIA request if the record is responsive to the request and exists
elsewhere in the agency’s records where it would not be privileged.
50
the County did not knowingly and willfully violate the PIA in initially withholding records
from the IA File.
4. Search of Records of the Police Chief
Finally, Mr. Glass focuses on the County’s records search as it related to the office
of the former Police Chief. The Circuit Court concluded that, because Ms. Ryder was
aware that the Police Chief’s assistant used a chronological filing system, the County
knowingly and willfully violated the PIA when Ms. Ryder did not instruct the Police
Chief’s secretary to focus the search on a particular date interval after an initial search of
the Police Chief’s records had not yielded any responsive records. The Circuit Court did
not award Mr. Glass any relief as a result of this conclusion. Before us, Mr. Glass argues
that the County’s search of the Police Chief’s office was not reasonable and that, as a result,
the Circuit Court should have ordered the County to undertake a broad series of follow-up
searches of the entire agency pursuant to GP §4-362(c)(3).
The 2012 PIA Request was broadly worded. It sought “any and all” records
concerning Mr. Glass in any form possessed by the Police Department or by any employee
of the Police Department. It was unbounded by date. In her initial search in response to
that request, Ms. Ryder had no reason to direct any other custodian of Police Department
records, such as the Police Chief’s assistant, to focus on records for any particular time
period. Mr. Glass himself testified at trial that, when asked for clarification when he
initially submitted the request, he said that he wanted any records pertaining to him since
his birth. Thus, the fact that Ms. Ryder knew that some of the Police Chief’s records were
51
kept chronologically was irrelevant. In his letter in reply to Ms. Ryder’s response to the
2012 PIA Request, Mr. Glass named the Police Chief as one of the Police Department
employees who might have responsive records and spotlighted his traffic stop by Officer
Collier (which occurred on September 14, 2010). But, even then, Mr. Glass did not limit
his request to any particular interval.
Mr. Glass has pointed to the fact that the search did not uncover a letter from the
Police Chief to the State’s Attorney dated August 25, 2011 requesting assignment of an
Assistant State’s Attorney to Mr. Glass’ traffic case. (Mr. Glass apparently obtained the
letter as a result of a PIA request to the State’s Attorney’s Office concerning his traffic
case.) However, Mr. Glass’ 2012 PIA Request provided no specific time references for a
records search and the only date provided in his reply to Ms. Ryder’s request for further
direction was the date of the traffic stop – September 14, 2010.40 Mr. Glass does not
indicate how the fact that the Police Chief’s general correspondence records were kept
40
The Circuit Court reached its conclusion that the County had knowingly and
willfully violated the PIA with respect to this aspect of its search in part because Ms. Ryder
had not informed the Police Chief’s assistant of a relevant date range. The court may have
confused the 2012 PIA Request, which contained no date range, with the 2011 PIA Request
or the 2013 PIA Request, both of which had date ranges. However, neither of those date
ranges (September 14, 2010 through March 18, 2011, and February 23, 2012 through
February 20, 2013, respectively) would have captured the letter dated August 25, 2011
(assuming that it was in fact filed chronologically).
52
chronologically would have led Ms. Ryder – or the Police Chief’s assistant – to that letter,
given the breadth of his request.
We agree with the Court of Special Appeals that the record concerning the search
with respect to the Police Chief’s office does not support a finding by clear and convincing
evidence of a knowing and willful violation of the PIA. Nor is it a basis for ordering
injunctive relief under GP §4-362(c)(3).
III
Conclusion
For the reasons explained above, we hold:
1 – The records manager of the Police Department was an appropriate custodian for
a PIA request that encompassed archived emails of the Police Department stored with OIT
when the Police Department itself accessed those records for its own purposes, and the
records manager retained responsibility for asserting privileges and other exceptions to
disclosure under the PIA with respect to those records.
2 – There was not clear and convincing evidence that the County knowingly and
willfully violated the PIA in its response to the 2012 PIA Request with respect to the
archived emails, the IA File, or the search of the Police Chief’s records.
53
3 – The search of the Police Chief’s office was reasonable in light of the nature of
the PIA request and the failure to locate one record that might have been located there did
not require the Circuit Court to order follow-up searches of the entire Police Department.
JUDGMENT OF THE COURT OF SPECIAL APPEALS
AFFIRMED. COSTS TO BE PAID BY PETITIONER.
54
Circuit Court for Anne Arundel County
Case No. 02-C-12-170607
Argued: October 13, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 20
September Term, 2016
______________________________________
GARY ALAN GLASS
v.
ANNE ARUNDEL COUNTY, MARYLAND,
ET AL.
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Concurring Opinion by Watts, J.
______________________________________
Filed: May 25, 2017
Respectfully, I concur. I agree with the outcome of the case and that the majority
opinion accurately discusses and applies this Court’s holding in Md. Dep’t of State Police
v. Dashiell, 443 Md. 435, 117 A.3d 1 (2015). See Maj. Slip Op. at 45-46, 48-49. However,
consistent with my dissent in Dashiell, id. at 464, 117 A.3d at 18 (Watts, J., dissenting), I
would hold that, where an investigation against a law enforcement officer is completed and
results in a sustained complaint, the record of the discipline imposed is not exempt from
disclosure under the Maryland Public Information Act under its personnel records
exemption. Indeed, in such circumstances, “the discipline that the law enforcement agency
decides to administer to the officer does not directly pertain to employment or the officer’s
ability to perform his or her job[,]” but instead “is an action of—and thus reflects the
judgment of—the law enforcement agency, not the officer.” Id. at 467, 117 A.3d at 20
(Watts, J., dissenting). As such,
a record of discipline based on a sustained complaint against a law
enforcement officer is not a personnel record; instead, it is among the very
types of document[s] that the Public Information Act is designed to make
available to the public: a document that reflects how a public agency
responds to an employee’s proven misconduct.
Id. at 467, 117 A.3d at 20 (Watts, J., dissenting) (footnote omitted).
In this case, because the record does not reflect that a completed investigation into
Officer Collier’s conduct resulted in a sustained complaint pursuant to which the Anne
Arundel County Police Department imposed discipline against Officer Collier, I agree with
the result reached by the majority opinion.
For the above reasons, respectfully, I concur.