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Public-private company must open meetings

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NEWS MEDIA UPDATE   ·   MARYLAND   ·   Freedom of Information   ·   Nov. 6, 2006

NEWS MEDIA UPDATE   ·   MARYLAND   ·   Freedom of Information   ·   Nov. 6, 2006


Public-private company must open meetings

  • Maryland’s high court has ruled that Baltimore’s influential economic development agency is subject to public records and public meetings laws.

Nov. 6, 2006  ·   A nonprofit corporation that serves as Baltimore’s economic development arm must open its meetings and records to the public, Maryland’s high court ruled Friday.

The court ruled that the Baltimore Development Corp. is a public body and an instrument of the city of Baltimore for the purposes of the state’s open meetings and public records laws.

The state Legislature “has determined that it is essential to the maintenance of a democratic society that, subject to certain well defined exceptions, the deliberations of a public body be open to the public which it serves,” Judge Dale Cathell wrote for the court. “An entity that possesses as many public traits as does the BDC is a public body for the purposes of the Open Meetings Act.”

Founded in 1991, the development corporation has overseen major development projects in the city and receives as much as 87 percent of its funding from the city, according to the court’s opinion.

The lawsuit was filed by nine businesses that were to be condemned in an area of the city’s west side slated for redevelopment. The businesses sued in 2004, after the development corporation rejected their request for meeting minutes and details of the redevelopment proposals submitted.

Journalists and others have long said the development corporation should be open to the public, in part because of its influence over public policies such as the use of eminent domain, the power of government agencies to seize private property.

While the development corporation does not have that power itself, it controls Baltimore’s use of eminent domain, said John C. Murphy, the attorney who argued the case for the businesses.

“They don’t do it directly, but they are the managers of it,” he said. “When you talk to the city about eminent domain, you talk to this organization about it.”

A trial court initially found in favor of the development corporation, but a state appeals court reversed the decision in January.

The Maryland-Delaware-D.C. Press Association filed a friend-of-the-court brief on behalf of the businesses to the Court of Appeals, Maryland’s highest court.

“We thought it was a significant case of access to government records,” said the association’s executive director, John J. Murphy, who is not related to the businesses’ attorney. “It seemed clear to us the development corporation was a public body by almost any standard, and we felt their records should be open to the public.”

The corporation argued that it should not be subject to the open meetings law because it was not created by the constitution, a state law or an executive order.

But the judges found that the corporation’s board met the law’s definition of a public body because it has multiple members appointed by Baltimore’s mayor and had some board members who did not work for the city. They said the mayor’s power to appoint, nominate and dismiss corporation board members shows that he “controls” the corporation.

The court also divided the development corporation’s functions into public, public-private and purely private responsibilities. Finding none that were completely private demonstrated “the extent to which the BDC has been able to cloak the business of the Citizens of Baltimore behind the veil of a supposedly private corporation,” the court wrote.

The high court did not rule on the validity of a closed meeting where the corporation’s board voted to recommend a developer in the redevelopment project and sent the case back to a lower court.

The decision could affect other local public-private corporations, which Murphy, of the press association, said are largely an effort to circumvent public records laws.

“They like to operate out of the glare of the public,” he said.

(City of Baltimore Development Corp. v. Carmel Realty Associates, Requester’s Counsel: John C. Murphy, Baltimore)RG

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