MPIA training power point

1. 1
The Maryland Public Information Act
Edward B. Lattner
Office of the County Attorney

2. 2
Introduction
 Don’t Confuse With FOIA
 FOIA applies only to federal agencies
 State and local governments not subject to FOIA

3. 3
Scope
 Public bodies and officials covered.
 Includes instrumentalities of government
(Revenue Authority, maybe Bethesda Urban
Partnership).
 Public Records Defined
 Original or any copy of any documentary material
made or received in connection with the
transaction of public business.

4. 4
General Rule: Public Access
 A custodian shall permit a person to inspect a public
record at any reasonable time
 Broad access
 MPIA generally construed in favor of permitting inspection
 exceptions narrowly construed
 Reason for request is irrelevant (cf. fee waiver issue
- whether public benefit v. private/commercial
interest).
 Identity of requestor irrelevant (cf. person in interest)

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Privacy: Required and Permissible Denials
 Broad Public Access, But MPIA Also
Functions As A Privacy Act.
 Important difference from FOIA.
 MPIA has required denials (§§ 10-616 and
10-617) and permissible denials (§ 10-618).
 Person In Interest. Generally person in
interest (person who is subject of the record)
can inspect his or her own records (personnel
records).

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Required Denials
 Custodian must not disclose certain specific
types of records and certain specific types of
information.

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Required Denials: specific records
 Specific records (§ 10-616)
 adoption and welfare records
 personnel records
 letters of reference
 retirement records
 student records
 library circulation records
 MVA records
 arrest warrants
 Police reports sought for marketing legal services
 miscellaneous records

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Required Denials: specific information
 Specific information (§ 10-617)
 medical, psychological, or social information
 confidential commercial or financial information
(salary of public employee excepted)
 public employee’s home address or telephone
number
 an individual’s finances
 occupational and professional licensing records
 investigatory procurement information
 miscellaneous information

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Permissible Denials
 Custodian may withhold the following if
disclosure would be contrary to the public
interest (§ 10-618)

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Permissible Denials: executive privilege
 Inter and intra agency memoranda and
letters.
 applies to records containing confidential
opinions, deliberations, advice or
recommendations made to a public employee.
 exemption is intended to preserve free and frank
discussion and the internal deliberative process.
 doesn’t apply to purely factual data.

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Permissible Denials: investigative records
 MPIA allows custodian to deny inspection of
investigatory file compiled for law enforcement
purpose
 but person in interest (subject of the complaint) can
inspect investigatory file, subject to various
exceptions, such as . . .
 custodian can deny inspection by person in interest to
extent would interfere with valid and proper law
enforcement proceeding, but that’s only while the issue is
pending
 custodian can deny inspection by person in interest to
extent inspection would disclose identity of confidential
source, even after investigation is closed, if information
given under express or implied assurance of confidentiality.

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Temporary Denial
 If official custodian believes disclosure of
record that must otherwise disclose would do
“substantial injury to the public interest,”
custodian may temporarily deny and apply to
circuit court within 10 working days for an
order permitting denial.

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Other Laws
 Other Law May Make Record Privileged Or
Confidential.
 MPIA recognizes that custodian must deny
inspection where record is privileged or
confidential by other law (attorney client privilege)
or inspection contrary to state or federal law
(federal Buckley Amendment re: student records)
 Other Law May Compel Disclosure.
 Federal court order
 Court subpoena

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Procedure
 Necessity Of Written Request
 Generally custodian should make records
available without written request
 Custodian must require written request if
 reasonably believe MPIA will require denial
 written request will materially assist Department in
responding
 request may involve substantial cost or time in making
records available

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Don’t Create Records
 MPIA does not require custodian to create records;
only allow inspection of existing records
 Custodian not required to reprogram its computers
(creation of new instructions to the database to access
linked data) or aggregate computerized data files to satisfy
request.
 It’s not “reprogramming” if clerical employee with standard
computer skills could generate report by following pre-
existing instructions.
 Example:
 List of all dog owners in 20850 zip code
 May not be categorized by zip code
 Applicant can inspect all dog owner records and copy
selected records

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Response
 If you’re not the custodian – notify within 10
work days and direct to proper custodian, if
known.
 If custodian, deny of provide within 30 days.
 Scope of search. Custodian must conduct
search reasonably calculated to uncover all
relevant documents.

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Response: Denial
 If denied, within 10 working days of denial,
custodian must give applicant written
statement of reasons for denial, legal
authority for denial, and appeal rights.
 county attorney’s office must review denial before
sent to applicant.
 must give all reasons that support denial;
otherwise could be limited on appeal
 2 year statute of limitations to challenge in court
CJ § 5-110

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Response: Redaction and Extension
 Redaction and Severability. Custodian must
permit inspection of any part of the record
that is subject to inspection and is reasonably
severable.
 Time Extension. Custodian may extend any
time limit 30 days with applicant’s consent.
 Good idea – keep requestor informed of progress
of request.

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Fees – search, preparation and copying
 Government can recoup its actual costs for search,
preparation, and copying.
 Copies. $.15/page; more for large size or certified
copy; no charge if total copying charge less than
$1.00.
 Search and Preparation.
 First two hours are free
 After that, may charge actual cost for search and
preparation (e.g., cost of outside contractor or hourly rate of
employee assigned to do work)

20. Electronic Records
 Must provide record in a searchable and analyzable electronic
format upon request if it is in that format, subject to mandatory
and permissive redactions.
 Don’t have to give electronic copy if it “would jeopardize or
compromise the security or integrity of the original record or of
any proprietary software in which it is maintained.”
 Government can remove all metadata, regardless of whether
metadata could otherwise be redacted.
 can remove metadata by using software program, or convert
into a different searchable and analyzable format.
 Effective 10/1/11 (sunsets 9/30/13) but maybe extended (HB 70).
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Fee Waiver
 Official custodian can waive or reduce fee
upon request.
 Custodian must consider:
 Public interest v. personal or commercial interest
 Ability of applicant to pay

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Notification of those potentially affected
 Notification. Custodian may notify person
who could be adversely affected by
disclosure and solicit their views on
disclosure
 Opportunity To File “Reverse MPIA Action.” If
custodian decides to disclose contrary to that
person’s request, custodian may first provide
that person opportunity to file appropriate
action to prevent disclosure.

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Judicial Review
 Requestor may bring suit within 2 years to challenge
denial.
 Government has burden of sustaining decision to
deny.
 Court can order government to disclose.
 Government liable for actual damages if finds by
clear and convincing evidence that custodian
willfully and knowingly failed to disclose.
 Court can assess attorney’s fees if plaintiff
substantially prevails.

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Civil liability for unlawful disclosure
 A public employee who willfully and
knowingly discloses records in violation of
MPIA is liable for actual and punitive
damages. Plaintiff must prove by clear and
convincing evidence.

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When to call county attorney
 Problem. Whenever there’s a question about
construction of MPIA.
 Litigation. If custodian knows the applicant is a party
(or acting on behalf of a party) in litigation with the
County or a County employee
 Litigants must discovery documents following procedural
rules governing court cases
 We want to know what they’re seeking; maybe
objectionable’
 Denial. If you’re going to deny access to portion or
entire record, must first consult County Attorney.
 Temporary Denial.

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Other resources
 Attorney General’s Public Information Act
Manual
http://www.oag.state.md.us/publications.htm