Newspaper wins partial access to governor’s records

From the Fall 2000 issue of The News Media & The Law, page 33.

The Washington Post was granted partial access to Gov. Parris Glendening’s office calendar and telephone records by the state’s highest court.

In response to an appeal by the governor, the Post asked the Court of Appeals, the highest court in the state, to find that records of Glendening’s schedule and telephone calls made from his various state offices were open under Maryland’s open records law. That straight forward request triggered a complex analysis of whether the records would be closed under several exemptions in the Maryland open records law or under privileges granted executive offices of government for pre-decisional communications.

In its opinion on Sept. 12, the high court interpreted the state open records law to create a general presumption of openness. Furthermore, if a portion of a record is deemed not for public disclosure, then it would be redacted and the remainder publicly released, the court decided.

Despite these access-friendly interpretations of the open records law, the court chipped away at the Post‘s record request — finding some records closed because of privacy, procedural or practical concerns. In the end, the Post won access to a small portion of the records it originally requested.

The controversy began in 1996 when the Post made an initial request for the governor’s schedules as well as telephone records from Glendening and his staff for the past two years. The Post later restricted its request to a six-month period and limited its request for telephone records to those of Glendening, Chief of Staff Major Riddick, Jr., senior advisor Susan Smith-Bauk and Secretary of State John Willis.

The governor’s office only partially complied with the newspaper’s request by releasing documentation of the aggregate cost of the telephone calls and the governor’s public agendas. After negotiations between the newspaper and the governor’s office proved unfruitful, the Post sued the governor’s office in 1997 in Circuit Court in Annapolis.

The governor’s office raised many defenses to releasing the records. Principally, the governor argued that a common law executive privilege covering executive communications of an advisory or deliberative nature protected the records from public disclosure. Alternatively, the governor argued the records were barred from public disclosure under certain exemptions to the open records law.

The Circuit Court found the governor’s office did not produce enough evidence to satisfy a finding of an executive privilege in the documents sought by the Post, nor that the records were exempt from the open records law. The court ordered the records be made available to the newspaper, but anticipating that the governor’s office would appeal, stayed its order and retained the records until an appeal was filed. The circuit court also barred any further consideration of whether Willis’ records were open because he was not joined as a defendant.

The governor’s office appealed immediately to the Court of Appeals, which forced the office to grant access to some records, but otherwise was not as amenable to the Post‘s request.

The appeals court analyzed a threshold question of whether the open records act even applies to the office of the governor. The Maryland open records law directs records custodians to allow inspections of all public records at reasonable times. The law further defines a public record as the “original or any copy of any documentary material that . . . is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business.”

The legislative history of the law indicates that the law was partially modeled on the federal Freedom of Information Act. This act has been interpreted as not applicable to the White House, at least to the extent that the records represent an advisory purpose, even though the language of the federal act provides that it applies to the “Executive Office of the President.”

The court categorized the state’s argument for an executive privilege as an attempt to create an analogous privilege to the federal law in Maryland. However, the court pointed out that the language of the federal law opens “agency” records, while the Maryland law opens “public” records. Because the interpretation of the federal law as not applying to the office of the president turned on whether that office was an “agency,” that decision could not be applied to the Maryland law, the appeals court said. It also noted there was no legislative history demonstrating that any public office in Maryland government was intended to be exempt from the public records law.

The court sent the case back to the lower court with instructions as to what records would or might be closed.

The Maryland governor is required to live in Annapolis and the state provides a home, commonly referred to as “Governor House,” for the governor and his family to live. The court deemed it “obvious” that all calls made from the residence would not be “public records” within the meaning of the open records law.

Next, the court noted that some of the phone records of the Baltimore office were no longer available because they were disposed of prior to the request. The court then determined that because the governor, Smith-Baulk and Riddick did not work on a regular basis in the Baltimore, Shaw House and the Washington, D.C., offices, and when they were there did not make many phone calls, records of telephone calls made from those offices would not be released to the Post.

Additionally, the court found that four of the 18 telephone lines at the State House were not likely used by the defendants because they did not connect directly into their offices. Records of calls on those lines would not be open.

The court also eliminated calls as either exempt or not subject to the request because they were calls identified as belonging to other persons in the office and calls to employees’ home numbers. Additionally, calls that the commander of the governor’s police protection unit was “reasonably certain” belonged to police officers were also ordered redacted from the record.

The appeals court rejected the defense by the governor that scheduling records of interviews and telephone calls to job applicants were exempt as personnel matters. It said the actions did not directly relate to action concerning an existing or former employee.

Second, the court rejected the governor’s claim that the records fell within an exemption for interagency or intra-agency documents. The records did not contain “confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another” for decision-making purposes, it said.

The court rejected the governor’s claim that releasing the record would interfere with government negotiation activity because the request was now four years old.

The appellate court asked the lower court to determine if there was evidence that some information was privileged because it was of a confidential commercial nature.

The appeals court rejected the claim that the telephone and scheduling records contained executive communications of a deliberative or advisory nature that were exempt from the open records law. The court clarified its position on this type of communications, writing that communications of a deliberative or advisory nature that assist an official in deciding on future governmental action are exempt from the open records law. However, because telephone records and scheduling records were not clearly records of the executive deliberative process, the court remanded the decision to the circuit court.