Fields v. State

McDONALD, J.,

concurring.

I concur in Judge Barbera’s opinion on behalf of the Court. I write only to point out a possible alternative basis of decision under the Maryland Public Information Act (“PIA”), Maryland Code, State Government Article (“SG”), § 10-611 et seq., that the opinion does not address. I simply wish to make explicit that we are not resolving the merits of that alternative basis by this decision.

As the Court indicates, the PIA establishes a general rule that a custodian of public records is to allow inspection of public records in response to a PIA request, subject to certain exceptions.1 One set of exceptions requires a custodian to withhold records if required to do so by other law.2 Two other categories of exceptions require the custodian to with*678hold certain types of records3 or certain types of information (not necessarily an entire record);4 these exceptions are sometimes referred to as “mandatory exceptions.” A fourth category of exceptions allows a custodian to withhold certain records or information if the custodian finds that disclosure would be “against the public interest”; these exceptions are sometimes referred to as “discretionary exceptions.”5

There is an important qualification to both the mandatory and discretionary exceptions to the PIA’s general rule of disclosure. Each of the statutory sections setting forth these exceptions begins with the proviso that records are to be withheld under these exceptions “[u]nless otherwise provided by law.” See SG §§ 10-616(a), 10-617(a), 10-618(a). For example, SG § 10-616, which lists 21 categories of records that are subject to mandatory exceptions, states- in pertinent part:

(a) Unless otherwise provided by law, a custodian shall deny inspection of a public record as provided in this section.

Among the records later listed “in this section” are “personnel records,” such as those at issue in this case.6

The bottom line is that the PIA always defers to “other law.” If other law requires that a public record be kept confidential, the record remains confidential under the PIA. If other law requires disclosure of a record, the record is disclosable under the PIA even if it falls within one of the PIA’s many categories of exceptions to disclosure.

*679One issue that arises from time to time in various contexts and that has not been addressed by this Court to date is whether a validly-issued subpoena should be considered (1) compulsion under “other law” that overrides a PIA exception or (2) the equivalent of a PIA request subject to PIA exceptions. (As there are different types of subpoenas, issued by different entities, in many different contexts, it is conceivable that the answer might differ depending on context).

In this case, a judicial subpoena was issued for the internal affairs records, which are exempt from disclosure under the PIA pursuant to the personnel records exception, SG § 10-616(i). Neither Montgomery County v. Shropshire, 420 Md. 362, 23 A.3d 205 (2011), which involved a PIA request—but not a subpoena—for internal affairs records, nor Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992), which involved a subpoena for records made confidential by a federal statute in addition to a PIA exception, necessarily resolves the issue for this case.

The Court applies the Zaal analysis without addressing to what extent the compulsory process of the subpoena itself might constitute “other law” that overrides the PIA exception and leads to the same result. I have no problem with that approach in this case as the parties did not brief whether the subpoena satisfied the “other law” proviso of the PIA exception and I am content to leave the broader PIA issue to be resolved another day.

. SG §§ 10-612, 10-613.

. SG § 10-615.

. SG § 10-616.

. SG § 10-617.

. SG § 10-618.

. Among the records listed in SG § 10-616, in addition to government personnel records, are driver licensing records, student records, adoption records, letters of reference, images from traffic control monitoring systems, and a panoply of other records.