Maryland Department of State Police v. Maryland State Conference of NAACP Branches

DAVIS, Judge,

concurring.

I am constrained to file this concurring opinion, not because I take issue with anything written in the Majority opinion, but rather, because I believe greater emphasis on the precipitating event, i.e., the Consent Decree, is warranted. Simply put, as the Majority postulates, “... it is the purpose-to find out if a State agency is properly overseeing its officers—for which the NAACP seeks the records” which is determinative of whether they are personnel records. Op. at 378-79, 988 A.2d at 1086-87. At the outset, 1 have engaged in an exhaustive search which has failed to uncover prior decisions in which the purpose for requesting records of a law enforcement agency was to determine compliance, vel non, with the directive to desist from behavior involving alleged discriminatory practices, as set forth in a federal court decree. Notwithstanding, I write separately, although I am in complete agreement with the well-written Majority opinion, particularly its holding that, under the facts in this case, “... the specific statutory provi*382sion (SG § 10-618(f)) takes precedence over the more general one (SG § 10-616®).” Op. at 370-71, 988 A.2d at 1081-82.1

The Majority quotes the trial judge’s ruling which, in my view was erroneous, when he opined that documents withheld were personnel records because they

“only exist because they represent the complaints of a citizen personally directed to a State Trooper [because of] misconduct of, being intimidated by racial bias, as opposed to legitimate reasons for stopping our motorists.... ” ... “these are the kinds of files that are personnel in nature and represent a thrust against an individual trooper.” Op. at 364, 988 A.2d at 1077-78.

The circuit court later in its ruling concluded that the fair approach would be to redact the names and identities of the troopers to protect their privacy “while at the same time giving to [appellee] the right to see the mechanism that the State Police have taken to meaningfully investigate these complaints.” Finally, although the Court’s August 11, 2008 Order declared records responsive to request No. 6 as “personnel records” under the MPIA, during the hearing, the Court stated:

I am admonishing the NAACP that the denied records ivill reveal whether the MSP at the institutional level is properly handling racial profiling investigations, and therefore com*383plying with the letter and spirit of the consent decree as well as what the law is in the state.

As the Majority points out, Judge Eldridge, writing for the Court in Kirwan v. The Diamondback, 352 Md. 74, 721 A.2d 196 (1998), observed that the term “ ‘personnel record’ is not expressly defined in the statute,” but that “[t]he statute lists three categories of documents which are (1) an application for employment; (2) performance rating; and (3) scholastic achievement.” Kirwan, 352 Md. at 82-83, 721 A.2d 196. Kirwan further observed that, “... although this list was probably not intended to be exhaustive, it does reflect a legislative intent that ‘personnel records’ mean those documents that directly pertain, to employment and employee’s ability perform a job.” Id. (emphasis added). Records of the hiring, discipline, promotion and dismissal of employees have also been mentioned as coming within the definition of personnel records. Id. at 83, 721 A.2d 196; Governor v. Washington Post Co., 360 Md. 520, 548, 759 A.2d 249 (2000); Prince George’s County v. Washington Post Co., 149 Md.App. 289, 322-23, 815 A.2d 859 (2003).

As the Majority further points out, the definition of personnel records as directly pertaining to “employment and employee’s ability to perform a job” is in the conjunctive and certainly is not applicable in the case sub judice, where the behavior at issue has nothing to do with a trooper’s “ability.” In fact, as will be discussed, infra, the basis and the reason for obtaining the records is not principally concerned with the performance of the troopers, themselves. The only category arguably relevant to the issue at hand is the discipline of state troopers as a result of complaints of discriminatory practices, but, as the Majority points out, records of complaints filed, in this case, fail to disclose that any discipline has been meted out.

That brings me to my central thesis, i.e., that the basis for the right to obtain the records, in the first place, was mentioned by the trial judge who, unfortunately, after identifying what I believe should have been the central focus, i.e., the *384records are the only means by which compliance with the consent decree can be demonstrated, the court then repeatedly, reverted to referencing the records as “personnel in nature and a thrust against an individual trooper.” What was not accorded proper consideration by the circuit court, in my judgment, was that—putting aside for the moment the question of redaction2—irrespective of whether the records served a dual purpose, it is beyond cavil that the most predominant rationale for maintaining the records at issue, as the circuit court recognized, was “to give the [appellee] the right to see the mechanism that the State police have taken to meaningfully investigate these complaints.” The denied records, the court later iterated, “will reveal whether the MSP at the institutional level is properly handling racial profiling investigations and therefore complying with the letter and spirit of the consent decree as well as what the law is in the state.” In the same vein, the circuit court acknowledged that the NAACP was not seeking to obtain information regarding individual troopers; rather, it was seeking “to glean information about the internal mechanics of the State police and whether or not they have adopted policies and protocol to ‘meaningfully investigate’ complaints of ... racial profiling.” Simply put, the records were sought to monitor the Department’s supervision of the troopers, not the job performance of individual state troopers.

The records that were sought are not personal, but rather involve complaints from citizens and the action taken by the Department in response thereto and intended to serve as a basis for making a determination as to the Agency’s compliance with the consent decree. The manner in which the state troopers discharge their duties is relevant only in that it provides a predicate for the ultimate determination of the Department’s compliance with the consent decree. Thus, the basis for the circuit court’s ruling that, because the records *385“represent a thrust against an individual trooper,” ergo “these are the kinds of files that are personnel in nature,” is patently predicated on a false premise.

We have previously held that, when a party seeks disclosure of records made confidential by statute, trial courts must engage in a balancing procedure in making their determination to permit such a disclosure. That is, a trial court must weigh the requestor’s “ ‘legitimate need for relevant information in the records against (1) the privacy rights of other persons and (2) the custodian’s duty to maintain confidentiality.’ ” Baltimore City Police Dep't v. State, 158 Md.App. 274, 290, 857 A.2d 148 (2004) (quoting Blades v. Woods, 107 Md. App. 178, 186, 667 A.2d 917 (1995)). Analogizing a request for confidential records with a request for privileged records, we have explained that the person requesting the documents would “have to proffer his need for disclosure and persuade the court that there is a reasonable possibility that the information in the records will assist his case.” Id. (citing Reynolds v. State, 98 Md.App. 348, 633 A.2d 455, (1993)). We have further elaborated on this requirement, explaining that “ ‘the court should consider the relationship between the information sought and the nature of the case, as well as the precise issue that the information is expected to address.’ ” Id. (quoting Blades, 107 Md.App. at 186, 667 A.2d 917). Implicit in this mandatory analysis is a consideration of the purpose for the request.

Even if the requested information in the case sub judice qualified as confidential, the purpose of the request in the case sub judice cannot be given short shrift. The “legitimate need,” or purpose for the request, advanced by the NAACP in this case implicates a matter of public interest and the implementation of a decree of a federal court. Unquestionably, the records requested bear directly on the precise issue that they were expected to address, i.e., compliance with the federal decree and the purpose for which they were sought is comparable to the basis for providing criminal defendants documents to ensure protection of their confrontation and due process *386rights. Baltimore Police, supra; Robinson v. State, 354 Md. 287, 730 A.2d 181 (1999); Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Zaal v. State, 326 Md. 54, 81-87, 602 A.2d 1247 (1992).

The Majority opinion characterizes the belief that any notion that the General Assembly intended that a custodian of records could withhold investigatory files of a police department under the more general “personnel record[s] of an individual” exception as set forth in 10—616(i) as “illogical,” when it adopted an 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)).” Op. at 370, 988 A.2d at 1081. As I indicated earlier, I concur with the Majority’s foregoing discernment of the legislative intent. But, more to the point, although the record reflects that there have been serious attempts to reach an accommodation in producing the records at issue, rather than “illogical,” it would be “unseemly” that the General Assembly, when it adopted an exception for “records of investigations conducted by a police department,” intended that a party to a consent decree could render that decree nugatory simply by seeking solace in a related, but less definitive statutory provision, thereby denying access to the only records which will confirm or dispel assertions of noncompliance with that decree. And, it would be particularly egregious if that party were permitted to accomplish the feat by simply shrouding the subject records with the denomination, “personnel.” Judge Deborah Eyler and Judge Woodward have authorized me to advise that they join my concurring opinion, as well as the majority opinion.

DEBORAH S. EYLER and WOODWARD, JJ., join.

. I am mindful of the holding of the Court of Appeals in Office of the Attorney General v. Gallagher, 359 Md. 341, 354, 753 A.2d 1036 (2000) to the effect that "SG § 10-618(0 does not override other exemptions under the Act." In Gallagher, the Court made clear that a record exempt from disclosure under § 10-615, 10-616 or 10-617, or any other subsection that prohibits a custodian from granting disclosure, cannot otherwise be disclosed through the custodian's discretionary authority under § 10-618(f) by virtue of the fact that the document is in an investigatory file. "... [T)he discretionary authority under § 10-618 cannot arise if the record cannot be disclosed because of a mandatory provision in § § 10-615 or 10-617.” Id. at 354, 753 A.2d 1036. However, this holding would only be applicable if the "other exemption,” i.e., SG § 10—616(i) is applicable. Because we conclude the records at issue are not personnel records, § 10-616 is not applicable.

. While redaction of the names and identification numbers of the troopers is preferable, the character of the records as personnel records is unaffected by whether they are redacted.