FOREWORD

Open Records. In explaining the purpose and objectives of Maryland's Public Information Act ("PIA"), Md. Code Ann., State Gov't §§ 10-611 to 10-628, (2004 & Cumm. Supp. 2005), Maryland's Attorney General, Joseph Curran, Jr., stated that:

The public's right to information about government activities lies at the heart of a democratic government. Maryland's Public Information Act grants the people of this State a broad right of access to public records while protecting the legitimate interests of government and the privacy rights of individual citizens.

Douglas F. Gansler, Office of the Maryland Attorney General, Public Information Act Manual, (11th ed. 2008) (hereinafter "PIA Manual"), Preface.

Prior to the enactment of the PIA, there were statutory provisions in place granting the public a right of inspection of certain public records. See, e.g., Pressman v. Elgin, 187 Md. 446, 50 A.2d 560 (1946) (the Maryland Motor Vehicle Act of 1943 provided that all records of the Department of Motor Vehicles, other than those declared by law to be confidential, were open to public inspection during office hours); Belt v. Prince George's Co., 73 Md. 289, 20 A. 982 (1890) (statutory provision required court clerks to provide copies of public records to any person upon application and payment of fees); but see Whittle v. Munshower, 221 Md. 258, 155 A.2d 670 (1959) (police reports of investigations not public records based on absence of statutory provision declaring same).

Absent statutory authority, however, Maryland law was unclear as to the precise nature and origin of any common law right of inspection of public records. An early case suggested that absent statutory authority, there was no common law right to inspect public records. Belt, 73 Md. at 290. However, in Pressman, the Maryland Court of Appeals suggested that a common law right to inspect public records might exist. 187 Md. at 451.

Whether based upon common law or statutory authority, the right to inspect public records prior to the PIA was limited to those persons who could show an actual or legal interest in the public record. Id. at 451-53; 43 Op. Att'y Gen. 113 (1956). This "actual or legal interest" requirement was based upon the necessity of obtaining a writ of mandamus if the right of inspection was denied. Id. at 450-53. A writ of mandamus would only issue upon a showing that the applicant for the writ had a clear legal right to inspect the record in question and that the defendant had an imperative duty to permit inspection. Id. at 452. Thus, as the court in Pressman explained, if a petitioner's purpose in desiring to see certain public records was merely to satisfy his curiosity, the writ would not be granted. Id. at 452; see also 43 Op. Att'y Gen. at 114 ("a person does not have the right to inspect judicial records to satisfy any whim or fancy").

The impetus for change in Maryland was the adoption of the federal Freedom of Information Act ("FOIA") enacted in 1966 by Pub. L. No. 89-487, 80 Stat. 250, and now codified at 5 U.S.C. § 552 (2004 & Supp. 2005). See Faulk v. State's Attorney, 299 Md. 493, 506, 474 A.2d 880, 887 (1984). In addition to FOIA, the state statutes of Wyoming (Wyo. Stat. §§ 6-4-201 to -205) and Colorado (Colo. Rev. Stat. §§ 24-72-201 to 206) served as models for Maryland's PIA. See PIA Manual, at 2. Like other state public information laws, Maryland's PIA abrogates the actual or legal interest requirement under the common law and expands the range of public records available for public inspection. Id.

Maryland's PIA was passed in 1970. 1970 Md. Laws pp. 1970-75. As originally introduced in the Maryland House of Delegates, the PIA included a section specifically pertaining to news media. See Faulk, 299 Md. at 506, 474 A.2d at 887. This provision permitted a right of inspection to all news media if such right was allowed to any officer or employee of any newspaper, radio station, television station or other person or agency in the business of public dissemination of news or current events. Although the legislative history of the PIA fails to explain why, this media provision was deleted from the bill prior to passage of the PIA. Nonetheless, it seems clear that with or without the deletion, the media's right of inspection is assured. See Md. Code Ann., State Gov't. § 1-101(d) (defines "person" to include "an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation or other entity").

Maryland's PIA is substantially similar in purpose to the FOIA. Both grant a broad right of access to public records and favor disclosure. See Faulk, 299 Md. at 506, 474 A.2d at 887. Federal case law interpreting the provisions of the FOIA provides persuasive authority in interpreting Maryland's PIA. Id.

The legislative intent behind the PIA is set forth in § 10-612, which provides that "[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees." Moreover, to carry out the right of inspection provided under the PIA, § 10-612 also provides that the provisions of the PIA are to be construed in favor of permitting inspection, unless an unwarranted invasion of privacy of a person in interest would result, and with the least cost and least delay to the person requesting inspection. See A. S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 464 A.2d 1068 (1983) (PIA reflects "the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government").

Open Meetings. Originally enacted in 1977, Maryland's Open Meetings Act (the "Act") was substantially revised by the Maryland General Assembly in 1991. Act of May 24, 1991, Ch. 655 1991 Md. Laws 306 (codified at Md. Code Ann., State Gov't §§ 10-501 to 10-512 (1995)). While retaining and strengthening many of the former Act's key provisions, the General Assembly added new provisions narrowing the exceptions that allow public bodies to close their meetings, and created a Board to consider complaints and recommend policies regarding the Act.

The General Assembly's intent in amending the Act is demonstrated by the statement of legislative policy:

It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances: (1) public business be performed in an open public manner; and (2) citizens be allowed to observe: (i) the performance of public officials; and (ii) the deliberations and decisions that the making of public policy involves.

§ 10-501(a).

The expressions of policy state, first, that the ability of the media and general public to observe open meetings "ensures the accountability of [the] government . . ., increases the faith of the public in government and enhances the effectiveness of the public in fulfilling its role in a democratic society." § 10-501(b). Second, § 10-501(c) expressly provides that, "[e]xcept in special and appropriate circumstances when meetings . . . may be closed under this subtitle, it is the public policy of the State that the public be provided with adequate notice of the time and location of meetings of public bodies . . ." § 10-501(c); CLUB v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804, 810 (2003).

These statements are consistent with the Maryland Court of Appeals' earlier statements concerning the purpose of the Act, in which the Court quoted the following language of the Florida Supreme Court:

One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance . . . . The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages . . . .

City of New Carrollton v. Rogers, 287 Md. 56, 72, 410 A.2d 1070, 1079 (1980) (quoting Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)). The Maryland Court of Appeals recently reaffirmed the purpose of the Act by explaining, "The clear policy of the Open Meetings Act is to allow the general public to view the entire deliberative process." Community and Labor United for Baltimore Charter Committee (CLUB) v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804, 810 (2003). Indeed, the Maryland General Assembly expressly decreed that any exceptions that permit closed deliberations should "be strictly construed in favor of open meetings. . . ." § 10-508(c).

Finally, the General Assembly created a new body to hear complaints, issue advisory opinions, and recommend new policies for the implementation of the Act. Known as the State Open Meetings Law Compliance Board (the "Board"), it consists of three members (one of whom must be an attorney) appointed by the Governor with the advice and consent of the State Senate. §§ 10-502.1 to 10-502.6. Its role is to educate public bodies about their duties under the Act, to provide a non-judicial forum for resolving disputes about the Act's application, and to offer recommendations to the General Assembly about amending the Act. Douglas F. Gansler, Office of the Attorney General, Open Meetings Act Manual at 5-1 (7th Ed. Oct. 2010) (hereinafter OMA Manual, at ___."); See also § 10-502.4.