Dashiell v. Maryland State Police Department

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1078

September Term, 2011

TELETA S. DASHIELL

v.

MARYLAND STATE POLICE
DEPARTMENT

Woodward,
Hotten,
Sharer, J. Frederick
(Retired, Specially Assigned),

JJ.

Opinion by Woodward, J.

Filed: October 8, 2014
 The instant appeal arises from an order granting summary judgment by the Circuit

Court for Baltimore County. Appellant, Teleta S. Dashiell, filed a declaratory judgment

action under the Maryland Public Information Act (“MPIA” or “the Act”), seeking to

establish that certain internal affairs records prepared and stored by appellee, the Maryland

State Police (the “MSP”), were not exempt from disclosure.

On November 5, 2009, appellant filed a complaint with the MSP against Sergeant

John Maiello, alleging that Sergeant Maiello had made racially derogatory remarks while

leaving a message on her voicemail two days earlier. Following an internal affairs

investigation, appellant was notified on February 17, 2010, that her allegations were

“confirmed” and that “appropriate disciplinary action was taken against Sergeant Maiello and

documented in his personnel file.”

After her subsequent MPIA request was denied by the MSP, appellant filed her

declaratory judgment action in the circuit court. On June 24, 2011, following a motions

hearing, the court ruled that all of the records sought by appellant were exempt from

disclosure as “personnel records” under Section 10-616(i) of the Act. This appeal followed.

On appeal, appellant raises three questions, which we have rephrased:

1. Did the trial court err in granting summary judgment in
favor of the MSP after finding that the documents sought by
appellant under the Maryland Public Information Act were
exempt from disclosure?

2. Did the trial court err by not ordering the MSP to produce
those portions of the withheld documents that are
“reasonably severable”?

3. Did the trial court err by allowing MSP to withhold
 documents under the Maryland Public Information Act
without first conducting an independent review of, or
permitting discovery of, the documents?

For the reasons set forth below, we will vacate the judgment of the circuit court and remand

this case to that court for further proceedings.

BACKGROUND

On November 3, 2009, during the investigation of a case to which he was assigned,

Sergeant Maiello made a telephone call to appellant, who was a potential witness. Unable

to reach her, Sergeant Maiello left a voicemail message on appellant’s telephone, asking her

to call him back. Without realizing that he had not hung up the phone, Sergeant Maiello

made racially disparaging remarks about appellant that were recorded on her voicemail

system.1 After listening to the voicemail, appellant contacted the Princess Anne police

barracks and, subsequently, came in to give a statement and file a complaint against Sergeant

Maiello.

On February 17, 2010, appellant received correspondence from Captain Kristina

Nelson of the Criminal Investigation Division, which explained that, following an internal

investigation, appellant’s complaint had been “sustained” and that “appropriate disciplinary

action was taken against Sergeant Maiello and documented in his personnel file.”

Approximately one month later, on March 2, 2010, appellant, assisted by the American Civil

1
According to the transcript of the message, Sergeant Maiello said, “Why, that’s what
I think about it, and I need to hear shit like that . . . that’s when I say to myself, ‘oh my God
. . . I’m listening to some God dang n*****’s voicemail play for twenty minutes.’”

2
Liberties Union of Maryland (“ACLU”), filed a request for disclosure of records under the

MPIA. Md. Code (1984, 2009 Repl. Vol.), §§ 10-611 to -630 of the State Government

Article (“SG”). In the records request, appellant sought

[t]he internal investigation conducted by the Maryland State Police
pursuant to the complaint lodged against Sergeant John Maiello by
[appellant] on November 5, 2009, and closed the second week of
February, 2010, relating to the offensive voicemail message left on
[appellant’s] cell phone on November 3, 2009, including, but not
limited to:
a. Any documents, including video and/or
audio recordings, obtained during the
investigation;
b. Any documents, including video and/or
audio recordings, created during the
investigation;
c. Incident reports;
d. Witness statements;
e. Charging documents;
f. Complaint control card;
g. Results of internal investigation; and
h. Results of the review of findings of the
internal investigation.

On April 15, 2010, Internal Affairs Section Commander John Greene denied

appellant’s request in its entirety. In a response letter to the ACLU, Commander Greene

explained:

MSP is denying [the] request for records for the following reasons:

• The Law Enforcement Officers’ Bill of
Rights (LEOBR) prohibits disclosure of
internal investigation reports outside the
context of that law.

3
 • Records of an individual employee’s
conduct related to a specific incident are
personnel records and are not disclosable
under the [MPIA].

• The records you requested are intra-agency
memoranda and letters and it would not be
in the public interest to inhibit candor in the
decision making process.

• The records you requested are investigatory
records and it would not be in the public
interest to inhibit the candor of witnesses or
to invade the personal privacy of individuals
involved in the investigation.

Appellant disputed the MSP’s decision to withhold the documents in their entirety,

arguing in a June 7, 2010 letter that she was “entitled to review” the investigative file

generated by her complaint. Appellant then requested that the MSP be required “to provide

any reasonably ‘severable portion’ of the records sought.” Appellant also “request[ed] a

detailed index of the investigative file that includes a summary of each document, and states

the particular exemption that the MSP claims for each document” within thirty days of the

letter. The MSP denied this request, stating that “the nature of these records and the various

bases upon which [the] MSP was compelled to deny the request makes it clear that no portion

of the requested record is reasonably severable,” and that the MSP was not required to

provide a detailed index because in its April 15 response, the MSP “sufficiently described

the contents of the records to justify denial of access to the records without the need” for any

such index.

4
 In the face of these denied requests, on October 27, 2010, appellant filed a complaint

in the circuit court seeking (1) a declaratory judgment that the MSP violated the MPIA, (2)

an order permitting her to inspect and copy the records she sought, and (3) an award of

attorney’s fees and costs. Before the beginning of discovery, the MSP moved to dismiss, or,

in the alternative, for summary judgment. The circuit court held a hearing on June 24, 2011,

at the conclusion of which the court orally granted the MSP’s motion for summary judgment.

The circuit court explained its ruling as follows:

This is a case where [appellant] filed suit against [the MSP] alleging
violation of the Maryland Public Information Act. Suit was filed on
October 27, 2010. Prior to filing suit, [appellant] inquired of [the
MSP] as to what actions they had taken regarding this incident. The
[MSP] w[as] required to respond on February 17, 2010.

[MSP employee] Captain Kristina Nelson sent a letter to
[appellant] stating–I’m not quoting–in response to her inquiry there
was an investigative file created regarding [appellant’s] complaint.
Second, that [the MSP] confirmed [appellant’s] allegations, and third,
that appropriate disciplinary action was taken against Sergeant
Maiello, and documented in his personnel file as stated in the letter of
February 17, 2010.

Shortly thereafter, March 2, 2010, [appellant], through her
counsel, requested, one–facts gathered during the investigation itself,
[] an Internal Affairs Investigation. Two–witnesses’ statements,
[incident] reports, documents obtained or created during the
investigation, and again, an Internal Affairs Investigation, the results
of the Internal Affairs Investigation, and five [sic] - the results of the
review findings of the Internal Investigation. That’s what counsel is
asking for. Basically, that’s what the suit is asking for. All [ ] of
these items are contained in the man’s personnel file.

The law is very clear. The personnel record is confidential.
The only exceptions that I see in the case law involve criminal cases,

5
 such as Robinson v. State, 354 Md. 287, Baltimore City Police v.
State, 158 Md. App. 27[4]. These Internal Affairs Investigation
records are clearly personnel records under Section 10-616, the State
Government section of the annotated code.

It clearly states they shall deny–unless you got a criminal case
involving constitutional issues usually related to the Sixth or
Fourteenth Amendment. There’s no question in my mind based upon
[appellant’s] attorney’s requests they are looking for a result of an
internal investigation by the [MSP], and everything they are looking
for is personnel records which are confidential and are protected.
Therefore, I’m granting the motion for summary judgment.

On June 28, 2011, the court entered a written order incorporating its ruling granting summary

judgment.

This timely appeal followed thereafter. Additional facts will be added as necessary

to elucidate our discussion.

DISCUSSION

The Court of Appeals set out the appellate standard of review for a grant of summary

judgment in Tyler v. City of College Park:

Whether a circuit court’s grant of summary judgment is proper
in a particular case is a question of law, subject to a non-deferential
review on appeal. As such, in reviewing a grant of summary
judgment, we review independently the record to determine whether
the parties generated a dispute of material fact and, if not, whether the
moving party was entitled to judgment as a matter of law. We review
the record in the light most favorable to the non-moving party and
construe any reasonable inferences that may be drawn from the
well-plead facts against the moving party.

415 Md. 475, 498 (2010) (citations omitted). Ordinarily, we “consider only the grounds upon

which the trial court relied in granting summary judgment.” Ross v. State Bd. of Elections,

6
387 Md. 649, 667 (2005) (internal quotation marks omitted).

In the MPIA, the General Assembly codified a general right to public information.

See SG §§ 10-611 to -630. Both on its face and as established by case law, the Act “shall

be construed in favor of permitting inspection of a public record.” Id. § 10-612(b); see

Kirwan v. Diamondback, 352 Md. 74, 81 (1998) (noting that the Act “must be liberally

construed in order to effectuate the Public Information Act’s broad remedial purpose”)

(citations and internal quotation marks omitted). “[T]he provisions of the Public Information

Act reflect the legislative intent that citizens of the State of Maryland be accorded wide-

ranging access to public information concerning the operation of their government.” Id. at

81 (citations and internal quotation marks omitted).

Of course, there are exceptions (in the form of exemptions) to the general rule

favoring disclosure. The presumption of public access does not apply in limited situations

where “an unwarranted invasion of the privacy of a person in interest would result.” SG

§ 10-612(b). As a public agency, the MSP has the burden of sustaining its decision to deny

the inspection of a public record. Id. § 10-623(b)(2)(i); see also Fioretti v. Bd. of Dental

Exam’rs, 351 Md. 66, 78 (1998). The agency may not assert a generic “unwarranted invasion

of privacy” or “personal information” exemption to disclosure; only the codified exemptions,

where applicable, are a valid basis for withholding public records. Office of the Governor

v. Washington Post Co., 360 Md. 520, 554 (2000).

Sections 10-615 through 10-618 of the Act provide the four statutory categories of

7
exemptions. Sections 10-615, 10-616, and 10-617 each set forth “required denials” stating

that, for all public records that fall into those categories, the records custodian “shall deny

inspection” (emphasis added). Section 10-618 sets forth “permissible denials” that vest

discretion in the custodian to deny inspection “if [the] custodian believes that inspection of

a part of a public record by the applicant would be contrary to the public interest.” In sum,

“if any exemption under §§ 10-615, 10-616, or 10-617 is applicable to a particular record,

then it must be withheld. Moreover, if the record is exempt under the provisions of

§ 10-618(a) . . . , then it may be withheld at the discretion of the custodian.” Office of

Attorney General v. Gallagher, 359 Md. 341, 354-55 (2000). Furthermore, the exemption

provisions are not mutually exclusive; that is, documents for which disclosure may be

permitted under one section must still be withheld if covered by another mandatory

exemption. Id. at 354.

When faced with an MPIA dispute, a trial court “must interpret the [Act’s] exemptions

narrowly.” Fioretti, 351 Md. at 77. “The Public Information Act’s strong preference for

public access to government documents must be considered whenever a court is applying the

particular provisions of the statute.” Md. Dep’t of State Police v. Md. State Conference of

NAACP Branches, 430 Md. 179, 191 (2013).

The public records at issue in the present case concern an internal affairs investigation

into appellant’s allegations that Sergeant Maiello, one of the MSP’s officers, made racially

insensitive and derogatory remarks to appellant in a voicemail left on appellant’s phone. The

8
Court of Appeals recently explained:

An internal investigation is initiated by a “complaint” or
“allegation of misconduct made against an employee of the
department.” The Director of the Internal Affairs Division reviews
the complaint and determines whether it merits further investigation.
If it does, the Director then assigns the complaint to an investigator,
typically a commanding officer, tasked with gathering “all available
documentary evidence” and compiling an “Internal Investigative
Report,” which contains the allegations, a written report of any
information uncovered by the investigation, and a list of all those
contacted or interviewed.

Montgomery Cnty. v. Shropshire, 420 Md. 362, 374 (2011).

According to the MSP’s Administrative Manual, complaints are documented by a

police employee on a “Form 176,” which is entitled “Complaint Against Personnel.” Md.

State Police Admin. Manual, ch. 5, § V(D)(3)(b) (rev. Aug. 20, 2004) (“the MSP Manual”).

Form 176 is then submitted to the Internal Affairs Section (“the IAS”), which opens a new

case file for that complaint and assigns a tracking number to that file. Id. §§ III(E)(1),(F)(1),

V(E)(4). The commander of the employee against whom the complaint is filed then confers

with the IAS Commander, who has the authority to decide who investigates the complaint

(either the IAS or a “local investigator”). Id. § V(E)(4). Whoever is assigned to investigate

the complaint must interview the complainant and witnesses, interrogate the employee(s),

explore all leads, examine all physical evidence, and provide an investigative report. Id.

§ V(H)(1). Once completed, an investigation case file will contain the following:

a. Complaint Against Personnel Report, Form 176
b. Report of Investigation
(1) Follow[ing] the detailed report format in

9
 Chapter 3 [of the MSP Manual] to ensure
the uniformity of internal investigation
reports.
c. Appendices
(1) Statement of complainant, if different
from that of the victim.
(2) Statement of victim, if different from that
of complainant.
(3) Statement of witnesses.
(4) Notification of Complaint, Form 178, if
applicable.
(5) D etailed report from accused
em ployee(s) and/or interrogation
transcript.
(6) Order to Submit to Interrogation, Form
178A, if applicable.
(7) Explanation of Miranda Rights[,] Form
180, if applicable.
(8) Other statements or detailed reports.
(9) Additional exhibits–e.g., photographs,
diagrams, charts, etc.

Id. § V(H)(10).

After the investigation is completed, a complaint may be “sustained,” “not sustained,”

“exonerated,” or “unfounded.” Mayor of Balt. v. Md. Comm. Against Gun Ban, 329 Md. 78,

85 (1993) (“Gun Ban II”). If the complaint is sustained, the officer may be subject to

disciplinary action. Offenses subjecting an officer(s) to discipline are classified internally

into five categories, “A” through “E,” with Category A offenses being the least severe, and

Category E offenses considered the most severe. The discipline assessed ranges from formal

counseling to reassignment for Category A offenses, to demotion or termination for Category

E offenses. MSP Manual, ch. 5, § XIII. An officer against whom discipline is assessed may

10
appeal to the Internal Investigative Review Panel. Shropshire, 420 Md. at 374. Furthermore,

where the complaint is sustained, “a notice to this effect is also placed in the officer’s

personnel file.” Final Rep., Governor’s Info. Pracs. Comm’n 307 (1982).

We now turn to evaluate whether appellant has a right to inspect the records that she

seeks under the MPIA. As explained above, the MSP issued a categorical, “blanket denial”

of appellant’s records request pertaining to the investigation of the incident involving

Sergeant Maiello and appellant. The MSP stated four separate bases for its denial–namely,

that the records were: (1) personnel records; (2) records for which disclosure would violate

the Law Enforcement Officers’ Bill of Rights (“the LEOBR”) ; (3) intra-agency memoranda

and letters; and/or (4) investigatory records. The circuit court ultimately concluded that all

of the records were “personnel records” without analyzing the MSP’s other bases. Because

we determine, as will be discussed infra, that the court’s judgment must be vacated and the

case remanded for further proceedings, our discussion will include all of the MSP’s bases for

the guidance of the trial court upon remand. See Md. Rule 8-131(a).

A. Is Appellant a “Person in Interest”?

We begin our analysis by evaluating whether appellant, as the complainant in the

instant case, is a “person in interest” under the MPIA. Appellant contends that she is a

“person in interest” as defined by the MPIA. The MSP disagrees. We concur with the MSP.

The significance of this initial determination is that the agency must make a

heightened showing in order to deny inspection to a “person in interest” relative to a member

11
of the general public. Compare SG § 10-616(i)(1) (requiring denial of inspection of

personnel records) with SG § 10-616(i)(2) (requiring granting of inspection to “the person

in interest”). See also Gun Ban II, 329 Md. at 96-97 (explaining that denying inspection

under SG § 10-618(f)(2) to “the person in interest” is only permissible based on seven

enumerated circumstances, whereas § 10-618(f)(1) only requires showing that “inspection

would be contrary to the public interest”).

As defined by SG § 10-611(e)(1), a “person in interest” is “a person or governmental

unit that is the subject of a public record,” or that person’s designee. In Gun Ban II, the

Maryland Committee Against the Gun Ban (“the Committee”), a political committee, sought

records of the Internal Investigation Division (IID) of the Baltimore City Police Department

based on an investigation into two officers’ alleged use of excessive force and other

misconduct. 329 Md. at 84. In addition to considering the text of the Act, the Court of

Appeals quoted at length from the legislative history of the Act, including the 1975 Senate

Committee Report, which stated that the Senate Committee “‘deemed it both necessary and

preferable to provide for some type of outside vigilance wherein citizens are afforded the

right to view those materials in the possession of law enforcement agencies respecting them

personally.’” Id. at 94 (quoting Report to the Senate of Maryland, Senate Investigating

Committee Established Pursuant to Senate Resolutions 1 and 151 of the 1975 Maryland

General Assembly (1975)). Reversing our decision and affirming the trial court, the Court

held that the Committee was not a “person in interest,” because it was “not ‘the subject of’

12
the IID report.” Id. at 90 (quoting SG § 10-611(e)). The Court reasoned that “[t]he fact that

individual persons who were working toward the goal of the Committee, either as volunteers,

paid employees, or independent contractors, interfaced with the police officers who thereby

became subjects of the investigation is insufficient to make the Committee a ‘person in

interest.’” Id. at 91.

We followed the Court of Appeals’ guidance the following year in Briscoe v. Mayor

of Baltimore, 100 Md. App. 124 (1994). The appellant in Briscoe, like appellant in the case

sub judice, was a complainant who accused two police officers of excessive force and

misconduct, and was the person who prompted an internal police investigation. Ultimately,

the police department concluded that the allegations were not sustained. Id. at 126. After

noting that the Court of Appeals “left open the question of whether a complaining victim or

witness may be considered the subject of an investigation” in Gun Ban II, we quoted the

Court of Appeals’ statement that “‘[t]he Act’s history covering reports of police

investigations also makes clear that the ‘person in interest’ referred to in § 10-618(f)(2) is the

person who is investigated.’” Id. at 130 (quoting Gun Ban II, 329 Md. at 92). Applying that

reasoning, we concluded that the “appellant is not the person who was investigated and thus

not a person in interest under the Act.” Briscoe, 100 Md. App. at 130.2

2
The only issue before this Court in Briscoe was whether the appellant was a “person
in interest” within the meaning of SG § 10-611(e)(1) of the MPIA. Briscoe v. Mayor of
Balt., 100 Md. App. 124, 130 (1994). The appellant was a complaining witness with respect
to the same investigative records that were at issue in Mayor of Baltimore v. Maryland
(continued...)

13
 Appellant argues that we should distinguish Briscoe, because the allegations of

misconduct in Briscoe were not sustained, while appellant’s allegations in the instant case

were sustained. Such distinction, in our view, has no bearing on whether a complainant is

or is not a “person in interest.” A “person in interest” relates to the status of an individual,

not to the veracity of the allegations of misconduct.3 Like the appellant in Briscoe, appellant

here is the complainant who triggered the investigation by the MSP, and not the subject of

the investigation itself. Sergeant Maiello was the subject of the investigation, and thus a

“person in interest.” Briscoe compels the conclusion that appellant is not a “person in

interest.”

B. Applicability of the LEOBR

The MSP argues that, because of the LEOBR, it was required to refuse inspection as

2
(...continued)
Committee Against Gun Ban, 329 Md. 78 (1993) (“Gun Ban II”). Briscoe, 100 Md. App. at
126. In Gun Ban II, the Court of Appeals held that the Maryland Committee Against the Gun
Ban was not a “person in interest” under the MPIA, that the records of an internal affairs
investigation by the Baltimore City Police Department were “records of investigations
conducted by . . . a police department” within the meaning of SG § 10-618(f)(l)(i), and that
the disclosure of such records was permissibly denied by the custodian under SG § 10-
618(a). 329 Md. at 81, 90, 99. The Court left open the question of whether a complaining
victim or witness may be a “person in interest, see id. at 90, which question was decided by
this Court in Briscoe, 100 Md. App. at 130-31.
3
Whether the allegations of misconduct are “sustained” or “not sustained” is relevant
to the balancing of an officer’s privacy interest against the countervailing public interest in
favor of disclosure. See Gun Ban II, 329 Md. at 95 (stating that, where the allegations are
not sustained, “fairness to the investigated officers and the avoidance of needless publicity
to the cooperating witnesses . . . justify on public interest grounds the custodian’s denial of
inspection”).

14
“contrary to a State statute,” pursuant to SG § 10-615(2)(i).4 The MSP claims that the

LEOBR “confirms the public interest in protecting the confidentiality” of the documents

here.

Appellant counters that SG § 10-615 does not apply, because the LEOBR, although

a state statute, does not control her situation. Appellant contends that the LEOBR is intended

only to provide procedural guarantees to law enforcement officers in internal investigations

and that, because she is a public complainant, the LEOBR is irrelevant.

In Shropshire, the Court of Appeals explained that “[i]nternal investigations of law

enforcement officers are governed by . . . the Law Enforcement Officers’ Bill of Rights

(LEOBR).” 420 Md. at 373. Indeed, as explained by the Court, “Section 3-104 of the Public

Safety Article is controlling whenever a law enforcement officer is under investigation or

subjected to interrogation by a law enforcement agency ‘for a reason that may lead to

disciplinary action, demotion, or dismissal.’” Id. The Court specifically declined, however,

to reach the MSP’s argument that the records of such investigations were confidential “by

virtue of” the LEOBR. Id. at 375 n.14.

In our view, the LEOBR does not govern whether documents from an internal

4
SG § 10-615 states, in relevant part:

A custodian shall deny inspection of a public record or any part of a
public record if:
***
(2) the inspection would be contrary to:
(i) a State statute[.]

15
investigation are subject to disclosure to third parties under the MPIA. In Baltimore City

Police Department v. State, Judge Mary Ellen Barbera (now Chief Judge of the Court of

Appeals), writing for this Court, stated that “the protections afforded an officer under these

provisions [of the LEOBR] have been determined by the Court of Appeals to have very little

bearing on the discoverability question” under the MPIA. 158 Md. App. 274, 283 (2004).

In support of her statement, Judge Barbera quoted from Robinson v. State, 354 Md. 287, 308

(1999), where the Court of Appeals explained that the provisions of the LEOBR “‘deal only

with the rights of the officer and serve as a protection for them.’” Balt. City Police Dep’t, 158

Md. App. at 285 (emphasis added). Although the LEOBR serves as support for the individual

officer’s interest in maintaining confidentiality, we are called upon here to focus our inquiry

on the rights of the complainant. Mindful of the admonition that “the [MPIA] should be

interpreted to favor disclosure,” Kirwan, 352 Md. at 84, we conclude that disclosure would

not be contrary to the LEOBR under SG § 10-615(2)(i).

C. Are the Requested Documents Exempt from Disclosure under the MPIA?

Appellant argues that the trial court erred by allowing the MSP to withhold the

documents as “personnel records” under SG § 10-616(i). Appellant also contends that the

documents should have been analyzed as “investigatory files,” pursuant to SG § 10-618(f)

and “intra-agency memoranda” under SG § 10-618(b). In support of her argument, appellant

cites to this Court’s decision in Maryland Department of State Police v. Maryland State

Conference of NAACP Branches, 190 Md. App. 359, (2010), aff’d on other grounds, 430

16
Md. 179 (2013).

The MSP responds by asserting that the trial court properly classified the records as

“personnel records” under SG § 10-616(i). The MSP argues that Shropshire compels the

finding that the internal affairs investigation files are “personnel records.” In reply, appellant

disputes the breadth of Shropshire, arguing that it is distinguishable, because the conduct that

was the subject of the internal affairs investigation in that case was “unfounded allegations

of administrative rule violations not prompted by any citizen complaint.”

Under SG § 10-616(i), “a custodian shall deny inspection,” except to “the person in

interest,” “of a personnel record of an individual, including an application, performance

rating, or scholastic achievement information.” This exemption is “intended to address the

reasonable expectation of privacy that a person in interest has” in his or her personnel

records. Univ. Sys. of Md. v. Balt. Sun Co., 381 Md. 79, 99-100 (2004). The Court of

Appeals has explained that, although the listed examples in the statute (employment

application, performance rating, and scholastic achievement information) were “probably not

intended to be exhaustive, [the list] does reflect a legislative intent that ‘personnel records’

mean those documents that directly pertain to employment and an employee’s ability to

perform a job.” Kirwan, 352 Md. at 82-83.

In Kirwan, the Court of Appeals held that the parking tickets of University of

Maryland basketball coach Gary Williams were not “personnel records” under the Act

because they “do not relate to Coach Williams’s hiring, discipline, promotion, dismissal, or

17
any matter involving his status as an employee.” Id. at 83. The Court again expounded on

the meaning of “personnel records” in Office of the Governor v. Washington Post Co., 360

Md. 520 (2000). There, the Court held, in part, that telephone numbers and in-person

meetings involving the Governor on the subject of appointed executive positions were not

personnel records because they “would not relate to the discipline, promotion, dismissal,

status, job performance, or achievement of an existing or former employee.” Id. at 548.

In Shropshire, the Montgomery County Inspector General sought to inspect records

from an internal affairs investigation involving two police officers. 420 Md. at 364. The

investigation was conducted after a complaint was filed alleging that the officers violated

administrative rules in the process of responding to an automobile accident involving a local

fireman. Id. at 366. The Court concluded that, “because the internal affairs records

involving [the individual officers] related to employee discipline, the records are indeed

‘personnel records’ exempt from disclosure pursuant to Section 10-616(i) of the State

Government Article.” Id. at 381. In support of this conclusion, the Court reasoned that,

“where, as here, an investigation clears the officers of wrongdoing, there is a significant

public interest in maintaining confidentiality, both in fairness to the investigated officers and

cooperating witnesses.” Id. The Court explained that “‘[m]istaken or even deliberately false

reports and accusations are made against . . . [i]n some instances, the most conscientious and

hardworking members’” of the police department. Id. at 380 (alterations in original) (quoting

Gun Ban II, 329 Md. at 84.). Thus “‘fairness to the investigated officers and the avoidance

18
of needless publicity to the cooperating witnesses, with possible inhibiting effects on future

investigations, justify on public interest grounds the custodian’s denial of inspection to one

other than a person in interest.’” Shropshire, 420 Md. at 380 (quoting Gun Ban II, 329 Md.

at 95). In addition, the Court noted that records of internal investigations contain significant

personal information about the investigated officer and other information “that if disclosed,

could be potentially detrimental to not only the officers, but also the witnesses.” Shropshire,

420 Md. at 381. In a footnote to the opinion, however, the Court expressly stated that it was

“not address[ing] whether records of ‘sustained’ complaints may be disclosed to a County’s

Inspector General.” Id. at 374 n.12.

At first blush, the Court of Appeals’ decision in Shropshire would support the trial

court’s grant of summary judgment in favor of the MSP on the grounds that the records of

the internal investigation against Sergeant Maiello are “personnel records” within the

meaning of SG § 10-616(i), and thus exempt from disclosure. The trial court, however, did

not have the benefit of the recent Court of Appeals’ opinion in NAACP Branches, 430 Md.

179. As we will explain below, NAACP Branches requires the trial court to determine

whether each requested document in the investigatory record is exempt from disclosure under

any provision of the MPIA advanced by the MSP, and if exempt, whether any such document

is subject to disclosure as severable under SG § 10-614(b)(3)(iii).

In NAACP v. Branches, the NAACP requested under the MPIA certain records from

the MSP regarding the MSP’s compliance with a federal consent order that was “designed

19
to ensure that State Police officers did not rely on racial attributes when deciding whether to

conduct a traffic stop and search.” 430 Md. at 182. The MSP produced many of the

documents requested, but declined to produce documents that were “obtained or created in

connection with any complaint of racial profiling, including but not limited to any complaint

filed with or investigated by the MSP’s . . . Department of Internal Affairs.” Id. at 183. The

MSP stated that such documents were “personnel records” and thus exempt from disclosure

under SG § 10-616(i). Id. In response, the NAACP indicated that it was not seeking

confidential personal information of a particular trooper and agreed to a redaction of the

documents such that a particular trooper’s identify would not be divulged. Id. at 183-84.

The MSP rejected this request, again relying on the “personnel records” exemption from

disclosure under SG § 10-616(i). Id. at 184.

The NAACP then brought suit in the circuit court against the MSP for violation of the

MPIA. Id. The trial judge ordered the submission of the disputed records for his in camera

review. Id. After in camera review, the trial judge determined that the records were

“personnel in nature,” but that the records should be disclosed “provided that the names and

any identification number of individual Maryland State Police troopers and the names and

identifying information of any complainants are redacted from such records.” Id. at 184-85.

On appeal, a majority of this Court, sitting en banc, held that the requested records,

without any redactions, did not constitute “personnel records of an individual” within the

meaning of SG § 10-616(i). Md. Dep’t of State Police v. Md. State Conference of NAACP

20
Branches, 190 Md. App. 359, 375 (2010). This Court reasoned:

Racial profiling complaints against Maryland State Troopers
do not involve private matters concerning intimate details of the
trooper’s private life. Instead, such complaints involve events
occurring while the trooper is on duty and engaged in public service.
As such, the files at issue concern public actions by agents of the State
concerning affairs of government, which are exactly the types of
material the Act was designed to allow the public to see.

Id. at 368.

We also held that the requested records constituted “records of investigations

conducted by . . . a police department” within the meaning of SG § 10-618(f) and that,

although such records could be exempt from disclosure under SG § 10-618(a), the MSP’s

reliance on SG §10-616(i) instead of SG § 10-618(a) precluded its denial of disclosure on

that ground.5 Id. at 370-71. Accordingly, this Court upheld the circuit court’s order

5
SG § 10-618 reads, in relevant part:

§ 10-618. Permissible denials.

(a) In general. — Unless otherwise provided by
law, if a custodian believes that inspection
of a part of a public record by the applicant
would be contrary to the public interest, the
custodian may deny inspection by the
applicant of that part, as provided in this
section.
***
(f) Investigations. — (1) Subject to paragraph
(2) of this subsection, a custodian may deny
inspection of:
(i) records of investigations
(continued...)

21
requiring the disclosure of the redacted records. Id. at 380-81.

Upon a grant of a writ of certiorari, the Court of Appeals affirmed the judgment of this

Court, but on different grounds. 430 Md. at 190. The Court rejected our focus on whether

the unredacted requested records were “personnel records” within the meaning of SG § 10-

616(i). Id. at 193-94. The issue, according to the Court, was whether the redacted records

constituted “personnel records” under SG § 10-616(i). Id. at 194. The Court resolved that

issue in two sentences: “After the names of State Police troopers, the names of complainants,

and all identifying information are redacted, the records clearly do not fall within the

statutory language of ‘record[s] of an individual.’ (§ 10-616(i)). There would be no

‘individual’ identified in the redacted records.” Id. at 195. In other words, the redactions

removed the records from the definition of “personnel records” under SG § 16-616(i), and

thus made them subject to disclosure.

In addition, the Court held that, even if the records remained “personnel records” after

the redactions, the custodian must disclose such records if they are “reasonably severable”

under SG § 10-614(b)(3)(iii). The Court explained:

Moreover, § 10-616(a) [&] (i) of the Public Information Act provides
as follows (emphasis added):

“(a) In general.—Unless otherwise provided by
law, a custodian shall deny inspection of a public

5
(...continued)
conducted by . . . a police
department, or a sheriff[.]

22
 record, as provided in this section.
***
(i) Personnel records.—(1) Subject to paragraph
(2) of this subsection, a custodian shall deny
inspection of a personnel record of an individual,
including an application, performance rating, or
scholastic achievement information.”

Section 10–614(b)(3)(iii) of the Act is a statutory provision
“otherwise provided by law.” It states:

“(3) A custodian who denies the application shall:
***
(iii) permit inspection of any
part of the record that is subject
to inspection and is reasonably
severable.”

The plain language of §§ 10-616(a) and 10-614(b)(3)(iii) authorizes
redactions so that the applicant can receive portions of an exempt
record which are severable and the receipt of which does not
violate the substance of the exemption.

Id. at 195 (emphasis added).

Finally, the Court of Appeals rejected this Court’s assertion that, if records are subject

to disclosure under one section of the MPIA, they cannot be exempt from disclosure under

another section of the Act. Id. at 191. The Court cited to Gallagher, wherein it held “‘that

§ 10-618(f) does not overrule other exemptions under the Act’ and that, ‘if any exemption

under §§ 10-615, 10-616, or 10-617 is applicable to a particular record, then it must be

withheld.’” Id. at 192 (quoting Gallagher, 359 Md. at 354-55). The Court then stated that

the severability provision of SG § 10-614(b)(3)(iii) applied to each of the Act’s exemptions.

The Court said:

23
 If a record falling within one of the Act’s exemptions is
redacted in accordance with § 10-614(b)(3)(iii) and, if it is still
exempt as argued by the State Police and held by the Court of Special
Appeals, no effect whatsoever would be given to § 10-614(b)(3)(iii).
The State Police’s and the Court of Special Appeals’ position would
largely render § 10-614(b)(3)(iii) nugatory. . . . Furthermore, as
shown by this Court’s opinions, § 10-614(b)(3)(iii) is not nugatory.
See Governor v. Washington Post, supra, 360 Md. at 542-550, 759
A.2d at 261-266 (This Court directed that there should be redactions
in various public records sought by the applicant); Cranford v.
Montgomery County, supra, 300 Md. at 774, 780-781, 481 A.2d at
228-229, 232.

Id. at 195-96.

The Court of Appeals concluded that the “Circuit Court was fully warranted in

ordering redactions in the requested State Police records, and, for this reason, the Circuit

Court’s order should be upheld.” Id. at 196.

In her MPIA request in the instant case, appellant asserted that none of the requested

documents were exempt from disclosure under the Act. In response, the MSP claimed that

all of the requested documents were exempt from disclosure under the Act as “personnel

records” under SG § 10-616(i), as “records of investigations conducted by a police

department” under SG § 10-618(f), and as “intra-agency memoranda” under SG § 10-

618(b).6 Under NAACP Branches, the trial court was required to determine whether the

requested documents were exempt from disclosure under any provision of the MPIA asserted

by the MSP. See 430 Md. at 194-96. Here, the trial court ruled that all of the requested

6
As explained supra, the MSP also claimed that the requested documents were
exempt from disclosure under the LEOBR.

24
documents were exempt from disclosure as “personnel records” under SG § 10-616(i). The

trial court did not decide whether the requested documents were exempt from disclosure

under the Act as “records of investigations conducted by a police department” or “intra-

agency memoranda.”

In making its ruling, however, the circuit court did not require the MSP to create an

index of the withheld documents7 and did not review any of such documents in camera.

Indeed, in its motion to dismiss, or in the alternative, for summary judgment, the MSP failed

to identify the documents that it withheld from disclosure, nor did the MSP provide any

detailed information about each such document. It is difficult for us to see how the trial court

could properly determine the applicability of any exemption under the Act without having

detailed information about each document withheld or conducting an in camera review of

all such documents. See Cranford v. Montgomery Cnty., 300 Md. 759, 779 (1984) (stating

that the agency must “present a sufficiently detailed description and explanation to enable

the trial court to rule whether a given document, or portion thereof, is exempt”).

In addition, appellant specifically stated in her MPIA request that, “if you determine

that some portions of the requested records are exempt from disclosure . . ., we will expect,

as the Act requires in § 10-614(b)(3)(iii), that you provide us with ‘any reasonable severable

7
Appellant asked the MSP to create an index of the withheld documents. The MSP
refused to prepare such index, and without ever identifying any withheld document, the MSP
asserted that it had “sufficiently described the contents of the records to justify denial of
access to the records without the need for a Vaughn index at all.”

25
portion’ of the records sought.” The MSP rejected appellant’s request for the disclosure of

the severable portion of the requested documents, claiming, without any explanation, “that

no portion of the requested record is reasonably severable.” Under NAACP Branches, the

plain language of the Act authorizes appellant to “receive portions of an exempt record which

are severable and the receipt of which does not violate the substance of the exemption.” 430

Md. at 195. Unfortunately, the trial court failed to decide whether any portion of the

requested documents that are exempt from disclosure are, nevertheless, severable and thus

subject to disclosure.

Given the state of the record before us in the instant case, we conclude that we cannot

conduct a review of the legality or propriety of the MSP’s refusal to disclose the requested

documents in the investigative file created as a result of appellant’s complaint. Without the

identification of each withheld document, along with detailed information about it, appellant

was not able to develop cogent arguments regarding whether a particular document is exempt

or severable. Without such identification and detailed information, or an in camera review

of the withheld documents, the trial court did not have a sufficient factual basis to determine

the applicability of an exemption to such documents, and if exempt, the severability of any

portion thereof. Finally, the lack of identification and information about the withheld

documents precluded the trial court from determining, as occurred in NAACP Branches,

whether any redactions agreed to by appellant would remove a particular document from an

26
exemption or would make such document severable from other exempt documents.8

Accordingly, we must vacate the judgment of the circuit court and remand the instant case

for further proceedings.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY VACATED;
CASE REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. APPELLEE TO
PAY COSTS.

8
In Md. Dep’t of State Police v. Md. State Conference of NAACP Branches, the Court
of Appeals emphasized that SG § 10-614(b)(3)(iii) “authorizes redactions so that the
appellant can receive portions of an exempt record which are severable and the receipt of
which does not violate the substance of the exemption.” 430 Md. 179, 195 (2013) (“NAACP
Branches”) (emphasis added). Redactions of all identifying information regarding the
troopers and complainants in NAACP Branches were found sufficient not only to remove the
documents from the definition of “personnel records,” but also satisfied the troopers’ primary
interest that underlies the exemption for personnel records. Id. at 195; see also Md. Dep’t
of State Police v. Md. State Conference of NAACP Branches, 190 Md. App. 359, 393 (2010)
(Kehoe, J., concurring) (stating that the “redaction of identifying information would protect
the privacy interests of the troopers” and was “tantamount to a determination that the
identifying information was ‘reasonably severable’ from the rest of the records)”. Moreover,
unlike Gun Ban II and Shropshire, 420 Md. 362 (2011), the instant case involves a finding
of a “sustained” complaint against a police officer. Consequently, concerns about the privacy
interests of the police officer weigh much less against the public’s interest in disclosure of
information concerning confirmed allegations of racist comments by a police officer in the
course of his official duties.

27