Montgomery County Maryland v. Shropshire

ADKINS, J.,

dissenting.

Government ought to be all outside and no inside.... Everybody knows that corruption thrives in secret places, and avoids public places, and we believe it a fair presumption that secrecy means impropriety.
—Woodrow Wilson

In crafting the Maryland Public Information Act (“MPIA”), the General Assembly sought to promote the disclosure of public records. See Kirwan v. Diamondback, 352 Md. 74, 84, 721 A.2d 196, 200 (1998) (“[T]he policy of the Public Information Act is to allow access to public records.”). This objective is memorialized in the statute itself, MPIA § 10-612(a) (“All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.”), and reiterated in its legislative history, House Constitutional and Administrative Law Committee 1976 REPORT TO THE GENERAL ASSEMBLY OF MARYLAND at 111 (“By amending the law in this manner, it makes clear that in construing even the withholding section the law should be viewed in a manner which would permit disclosure.”). Accordingly, we have repeatedly held that “the statute should be interpreted to favor disclosure.” Kirwan, 352 Md. at 84, 721 A.2d at 200. Here, however, the majority glosses over this policy in order to rush to a conclusion that would undermine it.

This case presents us with a tug of war, between the police and the public, over the boundaries of “investigative” and “personnel” records. The playing field is not level, however, as the burden to show that an exemption exists rests squarely on the shoulders of the party seeking to prevent disclosure, in this case, the police officers. Cf. Cranford v. Montgomery County, 300 Md. 759, 780, 481 A.2d 221, 231-32 (1984) (holding that the presentation of evidence at trial to support the denial *385of petitioner’s MPIA request was “simply too general and conclusory, standing alone, to meet the [custodian’s] burden of proof’); Fioretti v. Maryland State Bd. of Dental Exam’rs, 351 Md. 66, 87, 716 A.2d 258, 268-69 (1998) (custodian was “required to show that the documents it [sought] to withhold [were] investigatory files compiled for law enforcement purposes, [and] that disclosure of the records would have prejudiced its investigation”).

The MPIA sheds some light onto the types of documents that are “personnel records.” Although the MPIA does not explictly define the term, its language “discloses what type of documents the Legislature considered to be personnel records,” Kirwan, 352 Md. at 82, 721 A.2d at 200, by listing three categories of documents: (1) an application for employment; (2) performance rating; and (3) scholastic achievement. Keeping in mind the doctrine of ejusdem generis, see generally In re Wallace W., 333 Md. 186, 190, 634 A.2d 53, 55-56 (1993),1 this list suggests that the term “personnel records” be interpreted to include “only those [records] of the same class or general nature as those specifically antecedently mentioned.” Rucker v. Harford County, 316 Md. 275, 295, 558 A.2d 399, 408-09 (1989).

I first observe that the type of records developed during an investigation, like the records at issue in this case, are a far cry from the three examples enumerated in the statute. This is so even if, as the majority asserts, that investigation concerns a discrete event and involves only a few, identifiable *386employees. Indeed, the Kirwan Court reasoned that, in light of the MPIA’s policy favoring disclosure, it did “not believe that the General Assembly intended that any record identifying an employee would be exempt from disclosure as a personnel record. Instead, the General Assembly likely intended that the term ‘personnel records’ retain its common sense meaning.” Kirwan, 352 Md. at 84, 721 A.2d at 200.

Here, the Inspector General was attempting to determine whether both the accident and internal affairs investigations were consistent with generally accepted investigative standards. Thus the purpose of the request went to investigation technique and not to evaluating the performance of the individual officers. We should not, as I submit the majority does, extend the term “personnel records” to include all records relating to an officer’s actions in the course of his duty. Not only would this holding impair the Inspector General in performing its oversight role, but would also shield the police, who are public officers, from public scrutiny, an outcome completely at odds with the spirit of the MPIA.

This is not the first time Maryland courts have distinguished “investigation records” and “personnel records” with regard to investigations of potential police misconduct. In Maryland Dep’t of State Police v. Maryland State Conference of NAACP Branches, 190 Md.App. 359, 988 A.2d 1075 (2010), the Court of Special Appeals held that internal affairs files relating to investigations into complaints of illegal racial profiling were investigative records and not personnel records. The Court began by emphasizing the “broad remedial purpose” of the MPIA, which is to ensure “that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government.” Id. at 367, 988 A.2d at 1079 (quoting A.S. Abell Publg. Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983)). The Court then applied this reasoning to the records of racial profiling complaints, concluding that the public has an interest in protecting against racial profiling by its government:

Racial profiling complaints against Maryland State Troopers do not involve private matters concerning intimate details of *387the 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. A State Trooper does not have a reasonable expectation of privacy as to such records.

NAACP Branches, 190 Md.App. at 368, 988 A.2d at 1080 (emphasis added) (citations omitted).

Here, the officers were on duty and engaged in public service when they investigated the automobile accident. The internal affairs staff were also on duty and engaged in public service when they investigated whether the officers’ investigation violated any administrative rules. Undeniably, the public has an interest in protecting against abuse, bias, and conspiracy by the very people it has hired for protection. Therefore, like the records in NAACP Branches, “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.” 190 Md.App. at 368, 988 A.2d at 1080.

In NAACP Branches the Court also reasoned that, because the records so clearly fell within the “records of investigations” exemption under the MPIA, the General Assembly could not have intended that those same records would also be subject to the more general “personnel records” exemption:

It is illogical to believe that the General Assembly, when it adopted a permissible degree exception for “records of investigations conducted by ... a police department,” and set forth detailed provisions governing when such records could be withheld (see section 10-618(f)) also intended that a custodian of records must withhold investigatory files of a police department under the much more general “personnel record[s] of an individual” exception as set forth in section 10-616(i). Because the records the NAACP seeks in this case fit precisely within the class of records governed by *388section 10-618(f), we see no reason why its provision should not control, rather than section 10—616(i) of the Act[,] upon [] which the MSP relies. In other words, the specific statutory provision takes precedence over the more general one.

190 Md.App. at 370-71, 988 A.2d at 1081. This logic holds true for the records here. The requested documents concern an internal affairs investigation, meaning that they are, quite plainly, “records of investigations conducted by ... a police department.” Accordingly, they fall under the permissible denial section of the MPIA.

The Majority attempts to distinguish this case on the grounds that the racial profiling records at issue in NAACP Branches did not contain personal information on the individual officer and were stored in a central location:

[T]he records [in NAACP Branches ] were not indexed by the name of the employee or by the employee’s identification number, but rather were stored in a central location, suggesting that the records were significant in the aggregate[. Here,] the internal affairs records specifically reference the acts taken by [the two officers] during the investigation of a discrete motor vehicle accident and the unsustained allegations against them, rather than statistics compiled regarding the acts of a group of officers without identification of their personal information.

Maj. Op. at 382, 23 A.3d at 217. It is true that, in NAACP Branches, the records “were not indexed by the name of the employee or by the employee’s identification number[,]” but instead were “kept in one filing cabinet located in the MSP’s Internal Affairs Office.” 190 Md.App. at 369, 988 A.2d at 1080. Yet, as the County argues, that also seems to be the case here:

All internal affairs files are maintained at the Internal Affairs Division of the Police Department. When an internal affairs investigation does not result in disciplinary action, no documentation about the investigation is placed in the investigated officer’s personnel file. Only when the investigation results in a “sustained” ruling and the punish*389ment implemented is more than an oral admonishment does a copy of the statement of charges of the internal affairs investigation become part of the investigated officer’s personnel file.

More importantly, as the majority concedes, the internal affairs records pertain to “the investigation of a discrete motor vehicle accident[.]” (Emphasis added). The fact that only a few officers were involved in the underlying investigation, making them easily identifiable, does not transform the investigation records into personnel records. Indeed, in our electronic age, a simple word search can yield all documents pertaining to a particular officer. Under the majority’s logic, this keystroke would transform those records into personnel records, regardless of whether a more appropriate label exists. The Kirwan Court recognized this as an absurd result, and it concluded that the General Assembly did not intend that “any record identifying an employee would be exempt from disclosure as a personnel record.” Kirwan, 352 Md. at 84, 721 A.2d at 200. For these reasons, I conclude that the records here are not personnel records.

Ironically, my belief that internal review records are records of investigation is shared by the officers’ comrades in arms. In Mayor and City Council of Baltimore v. Md. Committee Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993), it was the police department that characterized such records as falling under the “investigation” exemption of the PIA. Just like the documents here, the records at issue in that case were generated in the course of an investigation conducted by the Internal Investigation Division (IID) of the police department in Baltimore City. That investigation was initiated by civilian complaints about the conduct of police officers during the service of a subpoena duces tecum on the Maryland Committee Against the Gun Ban (“Committee”). When the Committee sought disclosure of those records, the director of the IID rejected the request by relying on the records of “investigations” exemption of the MPIA. 329 Md. at 86, 617 A.2d at 1044. The records in the present case are of the exact same type as those in Gun Ban; they are the product of an *390internal review investigation into the techniques employed by its officers during the execution of a public service.

Because the records in this case are “investigation records,” thereby falling under the permissible denial section of the MPIA, Montgomery County law demands that the custodian release them to the Inspector General. As we have previously explained, “the ‘permissible denial’ provisions of the MPIA authorize custodians to exercise discretion in granting or denying requests for certain information. Therefore, home rule counties may direct or guide the exercise of this discretion, or even eliminate it entirely, by local enactment.” Police Patrol Security Systems v. Prince George’s County, 378 Md. 702, 712, 838 A.2d 1191, 119 7 (2003). See also Caffrey v. Dept. of Liquor Control, 370 Md. 272, 305, 805 A.2d 268, 287 (2002) (“The permissible denials of the MPIA are also subject to waiver by the County.”). Here, the County has expressly directed that every County department is to provide the Inspector General with certain records upon request: “The Inspector General is legally entitled to, and each department or office in County government and each independent County agency must promptly give the Inspector General, any document or other information concerning its operations, budget, or programs that the Inspector General requests.” Montgomery Code § 2-151(i)(1). Accordingly, the IAD records in this case must be released to the Inspector General.2

*391For the aforementioned reasons, I respectfully dissent. Judge Barbera authorizes me to state that she joins in the views expressed in this dissent.

. As this case describes, a general statutory term followed by a list of particulars is to be interpreted narrowly to “include only those things or persons of the same class or general nature as those specifically mentioned.’’ In re Wallace W., 333 Md. 186, 190, 634 A.2d 53, 55-56 (1993). The rule applies when:

(1) the statute contains an enumeration by specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

Id.

. The officers also allege that disclosure would be improper because the IAD records are made “confidential by law” pursuant to the Law Officer’s Bill of Rights ("LEOBR”). This Court has employed a balancing test when dealing with the confidentiality interest of a police officer under the LEOBR. In Robinson v. State, 354 Md. 287, 730 A.2d 181 (1999), a robbery conviction was reversed because petitioner was not allowed access to prior statements by police officer witnesses made to the Internal Affairs Division (IAD) of the Prince George’s County Police Department. The IAD was investigating the discharge of the officer’s weapon during the defendant's arrest. The LEOBR "limits access to the internal investigation file to the affected officer, and then only to exculpatory information, and does not expressly provide for access by anyone else.” 354 Md. at 308, 730 A.2d at 192. Nevertheless, this Court held that the trial court’s denial of the defendant’s request to examine those records was in error, as it violated the defendant's right under the "Jencks” rule, see generally Jones v. State, 310 Md. 569, 582-*39183, 530 A.2d 743 (1987), vacated, 486 U.S. 1050, 108 S.Ct. 2815, 100 L.Ed.2d 916, aff’d in part and vacated on other grounds, 314 Md. 111, 549 A.2d 17 (1988), to examine all written reports or statements previously made by a witness to determine whether they contained any inconsistency with the testimony given at trial. In reaching this conclusion, the Court balanced the confidentiality interest "against the confrontation and due process rights of the defendant!!,]” reasoning that "[w]hile confidentiality does go to discoverability, it does not guarantee insulation of the confidential matter from disclosure.” 354 Md. at 309, 730 A.2d at 193.

Here, the police officers’ confidentiality interest must be balanced against the public interest in transparency. The Inspector General was created specifically to "prevent and detect fraud, waste, and abuse in government activities!!.]” Montgomery County Code § 2-151(a)(2). Indeed, the public has a vital interest in preventing abuse in government activities. On the other side of the scale, the possibility that the IAD file will be released to the public at large is minor, because under the County Code, the “Inspector General must comply with any restrictions on public disclosure of the document or information that are required by federal or state law.” Montgomery County Code § 2-151(0(1). Thus, the confidentiality interest extends only to preventing the Inspector General from viewing the file. Here, the Inspector General is acting as the government’s auditor of the IAD, much like the IAD was the government’s auditor of the underlying police investigation. I do not see how the officers view their confidentiality interest as being further hindered by the same type of investigation.