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

KEHOE, Judge,

concurring.

While I agree with much in the well-reasoned and persuasive Majority opinion, I would affirm the judgment of the *387circuit court for different reasons. I write separately to provide a brief explanation.1

At issue in this case are the records of the MSP documenting its investigations of 94 complaints, filed between 2003 and 2007, alleging that MSP officers utilized racial profiling in making traffic stops. The MSP concluded that the charges of racial profiling could be sustained in none of them. As the Majority opinion explains, the NAACP seeks to inspect these records as part of its efforts to determine whether the MSP is complying with its commitments to adopt and implement policies and procedures to end racial profiling.

Prior to its ruling, the circuit court made an in camera inspection of each file, totaling, in the words of the court, “7- or 8,000 pages.” In rendering its ruling from the bench, the circuit court identified personnel records as “[-1 documents that directly pertain to employment and an employee’s ability to perform a job/’1 right out of a case.”2 The court stated:

[Tjhese files that I have looked through only exist because they represent the complaints of a citizen personally directed at a state trooper of misconduct, of being intimidated by racial bias as opposed to legitimate reasons for stopping our motorists.
So as a generic idea, I believe that overall, therefore, these are the kinds of files that are personnel in nature and represent a thrust against an individual trooper.

*388I.

I respectfully part company with the Majority at two points in its analysis. I believe that the troopers who were the subject of the complaints have privacy interests in the records in question and I further believe that the files themselves should be considered as “personnel records” under the Act.

The Majority states that, since the complaints involve events occurring while the troopers were on duty and engaged in public service, the officers who were the subject of the complaints did not have a reasonable expectation of privacy as to such records. With all respect to the Majority, I do not believe this proposition is consistent with the analysis employed by the Court of Appeals in Robinson v. State, 354 Md. 287, 308, 730 A.2d 181 (1999), and this Court in Baltimore City Police Dept. v. State, 158 Md.App. 274, 282-83, 857 A.2d 148 (2004). Both decisions recognize that police officers who are the subject of internal disciplinary investigations have privacy interests in the investigative records.

Robinson involved a prosecution for armed robbery. During the trial, Robinson sought access to statements made by the arresting officers as a result of an internal affairs division (“LAD”) investigation of the circumstances surrounding his arrest on the basis of the Jencks/Carr3 rule. 354 Md. at 298, 730 A.2d 181. One of the arguments raised by the State on appeal was that the prior statements made by the arresting officers were confidential under the LEOBR and thus, were not “available” to the police for disclosure to the defendant. Id. at 304, 730 A.2d 181. In assessing this contention, the Court of Appeals concluded that what was then § 728(5)(b)(iii) and (iv) of the LEOBR (now codified as Md.Code Ann. Pub. *389Safety § 3-104(n)), “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.... These provisions deal only with the rights of the officer and serve as a protection for them.” 354 Md. at 308, 730 A.2d 181. The Court went on to hold that an officer’s right in the confidentiality of IAD records was not absolute and “must be balanced ... against the confrontation and due process rights of the defendant.” Id. at 309, 730 A.2d 181.

In Baltimore Police, a defendant in a criminal case subpoenaed the file of an IAD investigation of a police officer who was a witness against him. 158 Md.App. at 280, 857 A.2d 148. The trial court denied the police department’s motion to quash the subpoena and the department appealed. Id. This Court stated “[t]he Department asserts that IAD’s file concerning its investigation into allegations of dishonesty on the part of [the police officer] qualifies as a personnel record [under the Act], and appellee does not contend otherwise. Guided by Kirwan, we see no reason to disagree... . ” 158 Md.App. at 282-83, 857 A.2d 148. Later in the opinion, this Court stated that “the IAD records at issue ... are made confidential by SG § 10-616.” Id. at 287 n. 7, 857 A.2d 148. Citing Robinson, we concluded that the police officer’s privacy interest was not absolute but must be weighed against the countervailing interests in favor of disclosure. Id. at 286, 857 A.2d 148.

I also must part company with the Majority’s conclusion that the records in question should be treated as “records of investigations conducted by ... a police department,” under § 10—618(f), instead of personnel records pursuant to § 10-616®.

While the term “personnel record” is not defined in the Act, the Court of Appeals has explained that the term embraces records that relate to the “discipline, promotion, dismissal, status, job performance or achievement” of an employee. Governor v. Washington Post, 360 Md. 520, 548, 759 A.2d 249 (2000); see also Kirwan, 352 Md. at 83, 721 A.2d 196 (“ ‘[Personnel records’ mean those documents that directly pertain to *390employment and an employee’s ability to perform a job.”) After its in camera inspection of the records, the circuit court characterized them as “complaints of a citizen personally directed at a state trooper of misconduct, of being intimidated by racial bias.” Whether a state trooper uses race as a factor in determining whether to initiate a traffic stop bears ineluctably upon that officer’s job performance. If the MSP were to conclude that a trooper was guilty of racial profiling, discipline would surely follow.

Certainly, the records were generated by investigations by the MSP. This fact should not render the files subject to disclosure under § 10—618(f). The Court of Appeals considered a similar question in Attorney General v. Gallagher, 359 Md. 341, 348, 753 A.2d 1036 (2000), and held that specific exemptions under the Act were applicable to a request under the Act to inspect an investigative file: “[njothing in the language or history of the Public Information Act supports the view that, when records are contained within an investigatory file, § 10—618(f)(2) displaces all other exemptions in the statute.” Id.4

II.

Because I conclude that the records in question are “personnel records,” I will address the principal contention advanced by the MSP to this Court, namely, that there is nothing in the Act to permit redaction or partial disclosure of a personnel record. The MSP’s position is unpersuasive.

The provision in question is § 10—614(b)(3)(iii) which requires a custodian who denies inspection of a record “to *391permit inspection of any part of the record that is subject to inspection and is reasonably severable.” The MSP’s position that § 10—614(b)(3)(iii) does not apply to personnel records is not consistent with the legislative history of the Act.

The Act was enacted in 1970 and was codified as Article 76A of the Code. Faulk v. State’s Attorney for Harford Co., 299 Md. 493, 506, 474 A.2d 880 (1984). At that time, the statutory predecessors to the current § 30—614(b) (Grant or denial by custodian), § 10-615 (Required denials-In General), § 10-616 (Required denials-Specific records), § 10-617 (Required denials-Specific information), and § 10-618 (Permissible denials), were all contained in Article 76A § 3. Section 3 did not contain a provision requiring a custodian to sever disclosable from non-disclosable records.

In 1976, significant amendments were proposed to the Act. The proposed amendments included revising § 3(d) to read in pertinent part as follows:

(d) Whenever the custodian denies a written request for access to any public record or any portion thereof under this section, [the custodian shall provide a written statement of the grounds for the denial].... In addition, any reasonably severable portion of a record shall be provided to any person requesting such a record after deletion of those portions which may be withheld from disclosure.

With regard to the proposed amendment to § 3(d), the House Constitutional and Administrative Law Committee reported:

[T]he section permitting the withholding of public information has been modified throughout so that if only a portion of the record should be denied and the record is severable the remainder must be disclosed. By amending the law in this manner, it makes it clear that in construing even the tvithholding section the law should be vieived in a manner rvhich ivould permit disclosure.

House Constitutional and Administrative Law Committee 1976 Report to the General Assembly of Maryland at 111 (emphasis added).

*392The report makes it clear that the legislature intended that exempt records, including personnel records, be subject to reasonable severance.5

The NAACP is not interested in the records to obtain information regarding individual troopers. Instead, the NAACP is seeking, in the words of the circuit court, “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....” Consistent with the institutional, as opposed to individual, focus of its inquiry, the NAACP offered to accept records in which the names of the officers involved were redacted. Whether stemming from the Act or the LEOBR, a trooper’s privacy rights extend only to the contents of his or her own investigatory file; an individual trooper has no privacy interest in the policies and procedures of the MSP.

The statutory mandate of § 10—614(b)(8) (iii) must be interpreted in light of the clearly-identified purposes of the Act, both as articulated in the legislative history and as recognized by decisions of this Court and the Court of Appeals.6

*393After its in camera review, the circuit court determined that redaction of identifying information would protect the privacy interests of the troopers. As the trial court stated, “[i]f you don’t know who the trooper was, it really can’t be personnel in nature, and it can’t be an invasion of a trooper’s privacy.” The circuit court further determined that it would be reasonable to permit inspection if “the names and any identification numbers of individual ... troopers and the names and identifying information of any complainants” were redacted. These conclusions are tantamount to a determination that the identifying information was “reasonably severable” from the rest of the records.7

III.

The circuit court noted that, in its view, there are “thousands of documents” within the files that “are not particularly relevant to ... the request of the NAACP.” In order to reduce the time and expense associated with redacting the files, the circuit court ordered the MSP to permit inspection of the unredacted files by three attorneys of Venable LLP (the NAACP’s trial and appellate counsel) with safeguards designed to prevent disclosure of information regarding the identity of either the troopers or the complainants. See Majority op. at 365-67, 988 A.2d at 1077-78.

*394The circuit court intended the “eyes only review” to reduce costs and expedite the eventual inspection of redacted records. While there is no specific authorization for such a procedure in the Act, a court has the general authority to appoint special officers to assist it in its functions “if advisable in a specific proceeding.” Md.Code Ann. Cts. & Jud. Proc. § 2-102(a) (1973, 2006 Rep. Vol.).

The records in this case are confidential, not privileged, and a police officer’s privacy interest in such records is not absolute. Robinson, 354 Md. at 308, 730 A.2d 181. This Court has approved an expanded in camera review8 of an internal affairs investigation report in Baltimore Police v. State, 158 Md.App. at 290-91, 857 A.2d 148. See also Blades v. Woods, 107 Md.App. 178, 186, 667 A.2d 917 (1995). The circuit court did not specifically allude to its authority under Cts. & Jud. Pro. § 2-102, but specificity in this context is not required. See, e.g., Davidson v. Seneca Crossing, 187 Md.App. 601, 628 n. 4, 979 A.2d 260 (2009) (trial court is presumed to know and follow the law; a detailed recitation of every step of its analysis in reaching a decision is not necessary).

In light of the safeguards imposed by the circuit court, it did not err in authorizing counsel, as officers of the court, to examine the documents outside of its immediate presence.

I am authorized to state that Judge ZARNOCH joins in this opinion.

. In order to be consistent with the Majority opinion, I will refer to appellant as the “MSP,” appellee as the “NAACP,” the Maryland Public Information Act, Md.Code Ann. State Govt §§ 10-611-10-630 (1984, 2009 Rep. Vol.) as the “Act” and the Law Enforcement Officer’s Bill of Rights, Md.Code Ann Pub Safety § 3-101 et seq. (2003), as the “LEOBR.” Unless otherwise noted, all statutory references are to the Act.

. The transcript makes it clear that the circuit court was referring to Kirwan v. The Diamondback, 352 Md. 74, 83, 721 A.2d 196 (1998) (" '[Plersonnel records’ mean those documents that directly pertain to employment and an employee’s ability to perform a job.”)

. In Carry. State 284 Md. 455, 472-73, 397 A.2d 606 (1979), the Court of Appeals adopted principles earlier enunciated by the Supreme Court in Jencks v. United States, 353 U.S. 657, 668, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), and held that, for cross-examination purposes, a defendant is entitled to inspect prior written statements of crucial State's witnesses who have testified at trial to determine whether those statements are inconsistent with their trial testimony. See Robinson, 354 Md. at 300-04, 730 A.2d 181.

. Under the Majority's holding, the record of an investigation by a law enforcement agency as to whether one of its employees committed noncriminal employment-related misconduct would be open to public inspection while the record of a similar investigation of an employee of any other public agency would not be. See 78 Op. Att'y Gen. 291 (1993) (The Act does not permit a custodian to disclose records pertaining to a complaint that employees in a circuit court clerk's office engaged in discriminatory behavior.). There is nothing in the Act to suggest that the General Assembly intended such an incongruous result.

. The 1976 proposal was enacted by Chapter 1006 of the Laws of 1978. See IV Md. Laws 1978 at 2869 et seq. Former Art. 76A § 3(d) is now codified as § 10-614(b). When the State Government Article was enacted by Ch. 284 of the Acts of 1984, Article 76A, § 3, was "transferred, without amendment" to separate sections in the new Article. II Laws Of Maryland 1984 at 981. "There is no indication in the legislative history that the separate sections of Title 10, subtitle 6, of the State Government Article were to be interpreted differently from the separate subsections of former Article 76A, § 3." Gallagher, 359 Md. at 353, 753 A.2d 1036.

. As Judge Kenney explained for this Court:

The MPIA provides that "all persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” [] SG § 10-612(a). The Court of Appeals in Fioretti v. Maryland State Bd. of Dental Exam'rs, 351 Md. 66, 73, 716 A.2d 258 (1998) (citation omitted), reiterated that " 'the provisions of the [MPIA] 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.' ” "The intent of the MPIA in favor of disclosure of public records is unmistakable.” Baltimore v. Burke, 67 Md.App. 147, 153, 506 A.2d 683, *393cert. denied, 306 Md. 118, 507 A.2d 631 (1986). Therefore, as the Court of Appeals has further explained, the provisions of the statute "must be liberally construed ... in order to effectuate the [MPIA’s] broad remedial purpose[,]” A.S. Abell Pub. Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068 (1983), and in favor of permitting inspection of a public record,! 1 “with the least cost and least delay to the person or governmental unit that requests the inspection.” Kirwan v. The Diamondback, 352 Md. 74, 80-81, 721 A.2d 196 (1998) (citing SG § 10-612(b)).

Prince George’s County v. Washington Post, 149 Md.App. 289, 307-08, 815 A.2d 859 (2003) (footnotes omitted).

. As the Majority points out, the circuit court alluded to the scope of the task involved in redacting the records. I do not, however, interpret the circuit court's comment as indicating that the redactions cannot be accomplished. In any event, in light of the public importance of the racial profiling issue, the effort is fully warranted.

. In Maryland the term "in camera review” means "[a] judge’s private consideration of evidence.” See Ehrlich v. Grove, 396 Md. 550, 553 n. 3, 914 A.2d 783 (quoting Black’s Law Dictionary 775 (8th ed. 2004)). An “expanded in camera review” involves a judge's review of evidence with counsel present. Ehrlich, 396 Md. at 553-54 n. 3, 914 A.2d 783.