Chapter 3: Exceptions to Disclosure

The general right of access to records granted by the PIA is limited by numerous

exceptions to the disclosure requirement. Given the PIA’s policy in favor of public

access and the requirement that the PIA generally “be construed in favor of permitting

inspection of a record,” these exceptions should be construed narrowly, unless an

“unwarranted invasion” of personal privacy would result. GP § 4-103(b).

See also

Glenn v. Maryland Dep’t of Health & Mental Hygiene

, 446 Md. 378, 386-87 (2016)

(explaining that although the exceptions “rebut the presumption in favor of disclosure,”

they should generally be construed narrowly);

Police Patrol Sec. Sys., Inc. v. Prince

George’s County

, 378 Md. 702, 717 (2003) (although there is no “general catchall”

exemption for personal privacy, the language of what is now GP § 4-103(b) directs that

“the [PIA] be construed more narrowly, and its exemptions more broadly, when

privacy issues are at stake”);

Office of the Governor v. Washington Post Co.

, 360 Md.

520, 544-45 (2000).

The PIA exceptions fall into three basic categories. First, the exceptions in

Subtitle 3, Part I generally require a custodian to deny inspection if a source of law

outside the PIA prevents disclosure. GP § 4-301. Second, the mandatory exceptions in

Parts II and III require the custodian to deny inspection for specific classes of records

and information. Third, the exceptions in Part IV permit the custodian to exercise

discretion as to whether the specified records are to be disclosed. More than one

exception may apply to a public record, and the exceptions are not mutually exclusive.

Office of the Attorney General v. Gallagher

, 359 Md. 341, 353-54 (2000). Many of the

exceptions are an attempt by the Legislature to balance individual privacy interests

against the public right of access.

University System of Maryland v. Baltimore Sun Co.

381 Md. 79, 95 (2004).

In addition, Part V of the PIA contains a “last resort” provision, which allows a

custodian to deny inspection temporarily and seek court approval to continue to

withhold a record that otherwise would be subject to inspection. GP § 4-358. Unless

an agency obtains a special court order under the statute to justify withholding a record,

there is no basis for withholding a record other than an exception in the PIA.

See

e.g.

Chapter 3:

Exceptions to Disclosure

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

Police Patrol Sec. Sys.

378 Md. at 716-17 (there is no discrete “public interest,”

“personal information,” or “unwarranted invasion of privacy” exemption to PIA).

Many of the PIA’s exceptions parallel those in FOIA. Cases decided under

similar provisions of the federal FOIA are persuasive precedents in construing the PIA.

See

e.g.

Glass

453 Md. 201, 208 (2017);

Equitable Tr. Co. v. State Comm’n on Human

Relations

, 42 Md. App. 53, 75-76 (1979),

rev’d on other grounds

, 287 Md. 80 (1980); 58

Opinions of the Attorney General

53, 58-59 (1973).

A. Exceptions Based on Other Sources of Law

Under GP § 4-301(a)(1), inspection is to be denied where “by law, the public

record is privileged or confidential.” Furthermore, under GP § 4-301(a)(2), the

custodian must deny inspection if the inspection is contrary to:

▪ State statute, GP § 4-301(a)(2)(i);

▪ federal statute or regulation, GP § 4-301(a)(2)(ii); or

▪ a rule adopted by the Supreme Court of Maryland or order of a court of

record, GP

§ 4-301(a)(2)(iii), (iv).

1. State Statutes

Many State statutes bar disclosure of specified records. Some representative

examples of these statutes include, among others:

▪ Section 10-219 of the Criminal Procedure Article restricts dissemination

of “criminal history record information.” 92

Opinions of the Attorney

General

26, 30-37 (2007);

▪ Section 3-8A-27 of the Courts & Judicial Proceedings Article protects

certain police and court records pertaining to minors.

See

Opinions of

the Attorney General

249 (2000) (protection under statute only applies to

records concerning matter that could bring minor within jurisdiction of

the juvenile court);

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

▪ Section 3-602 of the Correctional Services Article protects inmates’ case

records.

See

Opinions of the Attorney General

226 (2001) (protection

does not extend to projected release date for mandatory supervision);

▪ Section 16-118(d) of the Transportation Article provides that records of

the Medical Advisory Board are generally confidential.

See

Opinions

of the Attorney General

111 (1997) (person in interest is entitled to MVA

information relating to the person’s fitness to drive, subject to limited

exceptions);

▪ Tax information is protected under § 13-202 of the Tax-General Article

and § 1-301 of the Tax-Property Article.

See

MacPhail v. Comptroller

178 Md. App. 115, 120-22 (2008); Letter of Assistant Attorney General

Kathryn M. Rowe to Ms. Ann Marie Maloney (Dec. 15, 2004); and

▪ Disclosure of “medical records” is restricted by the Maryland

Confidentiality of Medical Records Act, §§ 4-301 through 4-309 of the

Health-General Article.

See

Opinions of the Attorney General

45, 48-

52 (2005).

Under GP § 4-301(a)(2)(i), statutes of this kind bar disclosure despite the

otherwise broad right of access given by the PIA.

See

e.g.

Waterkeeper Alliance, Inc.

v. Maryland Dep’t of Agric.

, 439 Md. 262, 268 (2014) (with regard to nutrient

management plans, citing § 8-801.1(b)(2) of the Agriculture Article as “the operative

excepting statute”); 81

Opinions of the Attorney General

164, 165-67 (1996) (applying

statutory accountant-client privilege);

PIACB Decisions

23-27, at 4 (June 16, 2023)

(provision in the Open Meetings Act precluded inspection under the PIA of minutes

from closed meetings).

2. Federal Statutes

Similarly, a federal statute or regulation may prevent disclosure of a record. For

example, the Family Educational Rights and Privacy Act of 1974 (FERPA) restricts

access to student records.

See

20 U.S.C. § 1232g(a) and (b); 34 C.F.R. § 99.3; 92

Opinions

of the Attorney General

137, 143-45 (2007); Letter of Assistant Attorney General

Robert N. McDonald to Delegate William A. Bronrott (March 3, 2010) (FERPA

regulations permit disclosure of University determination that a student committed a

crime of violence or non-forcible sex offense). Also, states must limit disclosure of

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

information concerning food stamp applicants. 7 U.S.C. § 2020(e)(8). Certain critical

infrastructure information and homeland security information that the federal

government shares with the State or local governments may not be disclosed under the

PIA.

See

6 U.S.C. §§ 673(a)(1)(E) and 482(e), respectively.

These exceptions are basically statements of the federal preemption doctrine.

See

Opinions of the Attorney General

44, 46-64 (2009); 88

Opinions of the Attorney

General

205 (2003) (addressing confidentiality of medical records under HIPAA and

State law). In some instances, a federal prohibition against disclosure that is a condition

of federal funding is effective only if the State has “accepted” that condition.

See

Chicago Tribune Co. v. University of Illinois Board of Trustees

, 781 F. Supp. 2d 672,

675-76 (N.D. Ill. 2011).

3. Court Rules

A rule adopted by the Supreme Court of Maryland or order of a court of record

can also prevent disclosure of a record. A court rule fitting this description is Maryland

Rule 4-642, which requires court records pertaining to certain criminal investigations

to be sealed and protects against disclosure of matters occurring before a grand jury.

Office of the State Prosecutor v. Judicial Watch

Inc

., 356 Md. 118, 131-34 (1999)

(discussing Rule 4-642). Similarly, the Maryland Rules require that a search warrant

be issued “with all practicable secrecy” and set restrictions on the subsequent

dissemination of copies of search warrants.

See

Md. Rules 4-601 and 4-263. A public

official or employee who improperly discloses search warrant information prematurely

may be prosecuted for contempt. Rule 4-601; 87

Opinions of the Attorney General

(2002) (absent court order, State’s Attorney’s Office may not make available to a

community association the address and date of execution of a search warrant relating

to drug violations for community association’s use in bringing a drug nuisance

abatement action if information has not otherwise been made public). Another

example of a court order that would fall within this exception is an order to seal records

in a divorce or custody case.

A rule that permits limited disclosure does not necessarily open a record to the

general public. For example, Rule 19-707(f)(3) permits Bar Counsel to disclose to a

complainant, on request, the status of an investigation and any disciplinary or remedial

proceedings resulting from information from the complainant. In interpreting a

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

predecessor to the current rule, the Supreme Court of Maryland held that, although it

allows limited disclosure to the complainant, it does not make the information subject

to general disclosure under the PIA.

Attorney Grievance Commission v. A.S. Abell Co.

294 Md. 680, 686-89 (1982).

As explained further in Chapter 10, the Supreme Court of Maryland, pursuant

to its power under Article IV, § 18(a) of the Maryland Constitution to adopt rules

concerning the practice and procedure in and the administration of the courts of the

State, has also adopted rules governing access to various categories of judicial records.

Md. Rule 16-901 through 16-934

Although these rules sometimes track the

exemptions that are in the PIA (or make those PIA exemptions applicable to certain

judicial records), the rules are what governs access to judicial records,

see

Md. Rules

16-901(a) and 16-902(b), and the PIA, by its terms, defers to that “other law” governing

confidentiality.

See, e.g.

, GP §§ 4-301, 4-304, 4-328, 4-343.

4. Privileges

The “privileged or confidential by law” exception under GP § 4-301(a)(1) refers

to traditional privileges like the attorney-client privilege and the doctrine of grand jury

secrecy. While records subject to the attorney-client privilege must be protected under

GP § 4-301(a)(1), the privilege may be waived by the party entitled to assert it.

Caffrey

v. Department of Liquor Control for Montgomery County

, 370 Md. 272, 304 (2002)

(Montgomery County Charter provision effectuated limited waiver of attorney-client

privilege);

see also

Opinions of the Attorney General

236, 239-40 (1979) (applying

common law doctrine of grand jury secrecy). In addition, in

Harris v. Baltimore Sun

Co.

, 330 Md. 595, 604-05 (1993), Maryland’s Supreme Court concluded that the

Maryland Rule of Professional Conduct that governs client confidentiality for lawyers

can sometimes provide a separate legal basis for protecting material of this kind, even

if the material would not be protected by the attorney-client privilege.

See also

Md.

Rule 19-301.6 (generally prohibiting an attorney from revealing information about the

representation of a client without client consent). Under that decision, a custodian

who is an attorney may not disclose a public record consisting of confidential client

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

information if disclosure would put the attorney in violation of what is now Rule 19-

301.6.

See

Harris

, 330 Md. at 602-05.

Another example of information protected by a recognized privilege is

confidential executive communications of an advisory or deliberative nature.

See

Stromberg Metal Works

Inc. v. University of Maryland

, 382 Md. 151, 161-63 (2004);

Office

of the Governor v. Washington Post Co.

, 360 Md. 520, 557-65 (2000);

Hamilton

v. Verdow

, 287 Md. 544, 553-67 (1980);

Laws v. Thompson

, 78 Md. App. 665, 690-93

(1989); 66

Opinions of the Attorney General

98, 100-01 (1981). The Supreme Court of

Maryland has stated that the executive privilege encompassed within GP § 4-301(a)(1)

shields records made in connection with the deliberative decision-making process used

by high executive officials such as the Governor and the Governor’s immediate

advisors—although the actual custodian of the records may be someone other than the

official holding the privilege.

Stromberg Metal Works

Inc.

382 Md. at 161-63. The

executive privilege encompassed within GP § 4-301(a)(1) is not limited to the executive

branch of government; it extends to the Chief Judge of the Supreme Court of Maryland

and presiding officers of the General Assembly as well.

Hamilton

, 287 Md. at 553-54

n.3. Records that reveal the deliberative process of other government officials may be

protected under a broader common law deliberative process privilege that is

encompassed by the discretionary inter- and intra-agency exemption in GP § 4-344.

Stromberg Metal Works

Inc.

, 382 Md. at 163-67;

see

Part D.1 of this Chapter below.

To be clear, not every executive communication is itself advisory or deliberative.

Office of the Governor

, Maryland’s Supreme Court rejected a blanket claim of

executive privilege for telephone and scheduling records sought by the newspaper.

Because these documents were not of an advisory or deliberative nature, the Governor

was not entitled to a presumptive privilege. However, the Court instructed the trial

court on remand to consider whether individual records were privileged because the

disclosure of particular phone numbers or scheduling records in “identified special

circumstances” would interfere with the deliberative process of the Governor’s office.

The Court also recognized that the passage of time might mitigate any harmful effect

disclosure could have on the current deliberations of the executive. 360 Md. at 561-65.

The Speech and Debate Privilege—or “legislative privilege”—provided to State

legislators by the Maryland Constitution may also prohibit disclosure of certain records

of legislators and legislative agencies.

See

Maryland Constitution, Art. III, § 18

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

(providing immunity from civil and criminal liability for “words spoken in debate”);

Declaration of Rights, Art. 10 (prohibiting the judiciary from “impeach[ing]” the

“freedom of speech and debate”); Letter from Assistant Attorney General Richard E.

Israel to William Ratchford (June 29, 1993);

see also

Part D1 of this Chapter,

addressing inter- and intra-agency memoranda, below, and

Purtilo v. Dwyer

, Case No.

269262-v (Circuit Court for Montgomery County, April 24, 2006) (discussing PIA

action against State legislators).

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

5. Local Ordinances and Agency Regulations

An ordinance enacted by a local government does not constitute other “law” for

purposes of § 4-301(a)(1) and cannot by itself supply a basis for withholding a public

record otherwise available under the PIA.

Lamson v. Montgomery County

, 460 Md.

349, 364 (2018);

Police Patrol Security Systems v. Prince George’s County

, 378 Md. 702,

710, 713-15 (2003);

see also

Opinions of the Attorney General

94, 106-07 (2001)

(municipal ordinance, if construed as a blanket prohibition on disclosure of certain

records, would thwart the purpose of the PIA). However, a confidentiality provision

in a local ordinance that is derived from a State statute can be a basis for denying access

to records.

See

Opinions of the Attorney General

12, 15-16 (2007) (confidentiality

provision in local ethics ordinance based on model ordinance under the Public Ethics

Law).

Conversely, local law may not authorize release of a public record if disclosure

is expressly prohibited by the PIA.

Police Patrol Sec. Sys.

, 378 Md. at 712;

see also

Caffrey v. Dep’t of Liquor Control for Montgomery County

, 370 Md. 272, 303 (2002).

An exception would be where a local law required disclosure in a manner authorized

by a State statute other than the PIA.

See

e.g.

, 71

Opinions of the Attorney General

282 (1986) (financial disclosures pursuant to county ethics ordinance). However, local

law might affect access to public records that are subject to discretionary exemptions

under Part IV. Thus, “home rule counties may direct or guide the exercise of this

discretion, or even eliminate it entirely, by local enactment.”

Police Patrol Sec. Sys.

378 Md. at 712;

see also

pp. 3-53 to 3-55 below (discussing

interplay between civil discovery and the PIA).

The converse is also true: Part II may allow access to records, but “other law”

may deny access. For example, names, addresses, and phone numbers of students may

be disclosed to an organization such as a PTA under GP § 4-313(c)(1)(i). However, the

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (also known as

the “Buckley Amendment,” or by its acronym FERPA), is “other law” that supersedes

the PIA. Under this federal statute, a student or parent may refuse to allow the

student’s name and address to be released by refusing to allow it to be classified as

directory information. If they do not refuse, the name and address are considered

directory information and may be released. As to the types of records protected under

the Buckley Amendment,

see Kirwan v. Diamondback

, 352 Md. 74, 89-94 (1998)

(federal statute governing “education records” does not cover records of parking tickets

or correspondence between the NCAA and the University of Maryland, College Park

Campus);

cf. Zaal v. State

, 326 Md. 54, 72-76 (1992) (FERPA and Maryland regulations

concerning the disclosure of student records do not exclude a student’s education

records from discovery in litigation).

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

The following categories of records are listed in Subtitle 3, Part II:

1. Adoption and Welfare Records

Under GP §§ 4-305 and 4-307, adoption records and welfare records,

respectively, on an individual person are protected.

See

Opinions of the Attorney

General

368 (1986) (discussing limited conditions under which information about the

handling of a child abuse case by a local department of social services may be disclosed);

see also

Opinions of the Attorney General

31, 43 & n.7 (2004); Md. Code Ann.,

Family Law § 5-357(a) (permitting access to information in the adoption record—other

than certain identifying information—to an adoptee or the adoptive or former parent

of an adoptee).

2. Library Circulation Records

Under GP § 4-308, public library circulation records that identify the transaction

of a borrower are protected.

See

Letter from Assistant Attorney General Richard E.

Israel to Delegate John J. Bishop (Feb. 28, 1990) (FBI agents may not inspect library

records unless acting pursuant to a lawfully issued search warrant or subpoena).

However, another statute may provide authority for a search absent a warrant or

subpoena.

See

50 U.S.C. § 1862 (authority of FBI to obtain order under USA Patriot

Act for production of records in connection with certain foreign intelligence and

internal terrorism investigations).

3. Letters of Reference

Under GP § 4-310, letters of reference are protected. This exemption applies to

all letters, solicited or unsolicited, that concern a person’s fitness for public office or

employment. 68

Opinions of the Attorney General

335 (1983). The exemption may

also extend to letters of reference submitted to the government in connection with

applications for professional licenses, although the Maryland courts have not yet

addressed that question.

See

Letter from Assistant Attorney General Patrick B. Hughes

to Insurance Commissioner Al Redmer (June 19, 2019). The Supreme Court of

Maryland has also left open the question whether a record, memorandum, or notes

reflecting a telephone conversation or meeting to obtain information about a

prospective appointee might come under the exception. However, a record simply

indicating that a telephone conversation or meeting occurred about a prospective

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

appointee is “certainly not a ‘letter of reference.’”

Office of the Governor v. Washington

Post Co.

, 360 Md. 520, 547 (2000).

4. Personnel Records

Under GP § 4-311, “personnel records” of an individual are protected; however,

such records are available to the person who is the subject of the record and to the

officials who supervise that person. Additionally, the parts of a personnel record that

contain the individual’s home address, home telephone number, and cell phone

number are available to certain employee organizations. GP § 4-311(b)(3). An agency

may not generally share personnel records with other agencies; however, it is implicit

in the personnel records exemption that another agency charged with responsibilities

related to personnel administration may have access to those records to the extent

necessary to carry out its duties. 86

Opinions of the Attorney General

94, 108-09

(2001).

The PIA does not define “personnel records,” but it does indicate the type of

documents that are covered: applications, performance ratings, and scholastic

achievement information. “Although this list was probably not intended to be

exhaustive, it does reflect a legislative intent that ‘personnel records’ means those

documents that directly pertain to employment and an employee’s ability to perform a

job.”

Kirwan v. Diamondback

, 352 Md. 74, 82-84 (1998) (rejecting argument that

information concerning parking tickets constitutes personnel record). Accordingly,

the category includes records “relating to hiring, discipline, promotion, dismissal, or

any other matter involving an employee’s status.”

Montgomery County v. Shropshire

420 Md. 362, 378 (2011),

superseded by statute on other grounds

, 2021 Md. Laws, ch.

62.

As to some examples of the specific type of records that are protected,

see

§ 4-311(c)(2) (records related to a “technical infraction,” as defined by GP § 4-101(l),

committed by a police officer are personnel records);

Opinions of the Attorney

General

362 (1994) (information related to performance evaluation of judges is not

disclosable); 78

Opinions of the Attorney General

291 (1993) (personnel records

exemption to the PIA prohibits release of certain employee-related information

generated as a result of allegations contained in a complaint that was filed against the

employee);

see also

Memorandum from Assistant Attorney General Jack Schwartz to

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

Principal Counsel (Jan. 31, 1995) (information about leave balances is itself considered

part of an official’s personnel records and therefore is not disclosable);

cf. Dobronksi v.

FCC

, 17 F.3d 275, 278-80 (9th Cir. 1994) (sick leave records of an assistant bureau chief

for FCC were “personnel files” under FOIA Exemption 6 but were disclosable because

of that exemption’s balancing test, not found in Maryland’s personnel exception). “The

obvious purpose of [GP § 4-311] is to preserve the privacy of personal information about

a public employee that is accumulated during his or her employment.” 65

Opinions of

the Attorney General

365, 367 (1980);

see also

Opinions of the Attorney General

65,

68 (1997); 68

Opinions of the Attorney General

335, 338 (1983).

Prior to 2021, records related to investigations of alleged misconduct by police

officers were generally considered personnel records.

See, e.g.

Baltimore City Police

Dep’t v. State

, 158 Md. App. 274, 282-83 (2004). However, in 2021, the General

Assembly passed a law explicitly removing records “relating to an administrative or

criminal investigation of misconduct by a police officer, including an internal affairs

investigatory record, a hearing record, and records relating to a disciplinary decision”

from the ambit of GP § 4-311.

See

2021 Md. Laws, ch. 62, codified at GP § 4-311(c).

These records are now treated as investigatory records subject to the discretionary

exemption codified at GP § 4-351, discussed in Part D.8 of this Chapter below, with the

exception of records related to “technical infraction[s],” which remain personnel

records. A technical infraction is defined as “a minor rule violation by an individual

solely related to the enforcement of administrative rules that: (1) does not involve an

interaction between a member of the public and the individual; (2) does not relate to

the individual’s investigative, enforcement, training, supervision, or reporting

responsibilities; and (3) is not otherwise a matter of public concern.” GP § 4-101(l).

To be clear, records related to an employer’s investigation of alleged misconduct by

government employees

other than police officers

also remain subject to GP § 4-311’s

mandatory exemption.

See, e.g.

PIACB Decisions

23-17, at 3-4 (May 25, 2023) (report

related to a fire department’s investigation of alleged misconduct by EMTs was exempt

from disclosure under GP § 4-311)

A record is not a “personnel record” simply because it mentions an employee or

has some incidental connection with an employment relationship. For example, a

record simply indicating with whom an official met or a phone number called in

connection with a possible future employment decision is not a personnel record under

the PIA.

Office of the Governor v. Washington Post Co.

, 360 Md. 520, 547-48 (2000).

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

Nor is directory-type information concerning agency employees a “personnel record”

under GP § 4-311.

Prince George’s County v. Washington Post Co.

, 149 Md. App. 289,

324 (2003) (roster listing names, ranks, badge numbers, dates of hire, and job

assignments of county police officers not exempt from disclosure as “personnel

records”). Furthermore, an employment contract, setting out the terms and conditions

governing a public employee’s entitlement to a salary, is not a “personnel record.”

University System of Maryland v. Baltimore Sun Co.

, 381 Md. 79, 101-02 (2004); Letter

of Assistant Attorney General Robert A. Zarnoch to Delegate Joanne Parrott (Feb. 9,

2004). Nor is a description of a job or position considered to be a “personnel record.”

Attorney General Opinion 77-006 (Jan. 13, 1977) (unpublished). Generally, a record

generated by an agency that lacks supervisory authority over an employee would not

qualify as a “personnel record.”

Washington Post Co.

, 149 Md. App. at 331 (records of

county human relations commission that provided recommendations to supervisory

agency following public hearings on alleged police misconduct).

In some contexts—particularly where an agency has a special duty to inform the

public—different distinctions may need to be made as to the nature of information. For

example, in assessing what a public school may or should disclose to parents about an

inappropriate relationship between a teacher and student, a 1982 opinion observed that

first-hand observation or information contained in an oral report to the school was not

a “personnel record” because it was not a “record.” Also, student-related information

in documentary material about the teacher may be disclosed without destroying the

confidentiality of employee-related information.

See

Opinions of the Attorney

General

65, 67-70 (1997). On the other hand, documents generated by a complaint

about court clerks’ conduct did fall within the exception. 78

Opinions of the Attorney

General

291, 294 (1993).

Records that, if unredacted, qualify as “personnel record[s] of an individual” for

purposes of GP § 4-311 may lose that status once “all identifying information” is

redacted.

Maryland State Police v. NAACP

, 430 Md. 179, 195 (2013) (State Police must

disclose records reflecting the agency’s investigation of all complaints of racial

profiling). What constitutes “identifying information,” however, will depend on the

specifics of each request. For example, the agency may disclose records in response to

a general, programmatic request of the sort at issue in

Maryland State Police v. NAACP

simply by redacting the names, titles, or other identifying information of the personnel

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

involved.

See Fether v. Frederick County

, Civil No. CCB-12-1674 (D. Md., March 19,

2014) (“statistical information” available under

NAACP

);

Shriner v. Annapolis City

Police Department

, Civil No. ELH-11-2633 (D. Md., March 19, 2012) (“aggregated

data”).

By contrast, no amount of redaction will enable an agency to comply with a

request for the personnel records of a specific State employee because, even if

“identifying information” is redacted, the documents provided would still constitute

the personnel records of the individual who is the subject of the request.

See Glass v.

Anne Arundel County,

453 Md. 201, 245-46 (2017) (where PIA request was for the

internal affairs file of a specific, identifiable police officer at a time when such internal

affairs files were classified as personnel records, agency was required to withhold file

in its entirety)

Requests that lie between these extremes will require the custodian to determine

what amount of redaction, if any, is necessary to ensure that the record released cannot

be identified as the “personnel record of an individual.”

See, e.g., Judicial Watch, Inc.

v. U.S. Dep’t of Justice

, 41 F. Supp. 3d 39, 46 (D.D.C. 2014) (upholding non-disclosure

of emails under FOIA exemption 6 when, due to the small number of people involved,

releasing even redacted versions “could easily lead” to the revelation of exempt

material);

see also

Opinions of the Attorney General

45, 54-55 (2005) (even with the

name redacted, the medical information in an ambulance event report might still be

“about an individual” if the unredacted information “sharply narrows” the class of

individuals to whom the information might apply or “likely” could be used to identify

the individual with “reasonable certainty”).

The personnel record exception is not limited to paid officials and employees;

biographical information submitted by individuals seeking to serve on agency advisory

committees is also protected.

See

Letters from Assistant Attorney General Kathryn M.

Rowe to Senator Brian E. Frosh and Delegate Jennie M. Forehand (Oct. 6, 2000).

Similarly, the names of those seeking appointment to an office may not be disclosed if

the information is derived from their applications. Letter from Assistant Attorney

General Kathryn M. Rowe to Senator Leo E. Green (May 13, 2002) (names of applicants

for Prince George’s Board of Education not to be disclosed).

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

Records regarding the salaries, bonuses, and the amount of a monetary

performance award of public employees may not be withheld as personnel records. 83

Opinions of the Attorney General

192 (1998). On the other hand, information

concerning the specific benefits choices made by specific employees must be withheld

because those benefit elections are exempt from disclosure under the PIA as personnel

records (GP § 4-311) and records of an individual’s finances (GP § 4-336(b)). Benefits

choices made by an individual employee can reveal information about the employee’s

family circumstances and medical needs, as well as disclose personal financial decisions.

The federal personnel regulations similarly allow for disclosure of salary, but not

benefits selection information, in response to a request under FOIA.

See

5 C.F.R.

§ 293.311.

On occasion, the question has arisen whether the death or termination of an

employee affects access to personnel records concerning the employee. Although there

is no case law on this question, the exception does not expressly distinguish between

personnel records of live or current employees and those of employees who have died

or moved on to other endeavors. This suggests, then, that the personnel records of

former employees do not receive less protection than those of current employees. And

the fact that the PIA defines “person in interest” to include a parent or legal

representative of an individual with a legal disability, GP § 4-101(g), suggests that

cessation of employment does not affect the applicability of the exception. With regard

to personal information in other types of documents, such as investigative files, the

federal courts have noted that an individual’s death might diminish, but does not

eliminate, the individual’s privacy interest.

See Clemente v. FBI

, 741 F. Supp. 2d 64,

85 (D.D.C. 2010).

5. Retirement Records

Under GP § 4-312, retirement files or records are protected. This section,

however, includes several exceptions. Under subsection (d)(1), a custodian must state

whether an individual receives a pension or retirement allowance. The law also

requires the disclosure of specified information concerning the retirement benefits of

current and retired appointed and elected officials.

See

GP § 4-312(d)(2). Specific

provisions are applicable to Anne Arundel County officials.

See

GP § 4-312(e). Note

that subparagraph (b)(1)(v) requires a custodian to permit an auditing agency to inspect

retirement files or records if a county requires, by law, that agency to conduct audits of

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

such records. The employees of the auditing agency must keep all information

confidential and must not disclose information that would identify the individuals

whose files have been inspected. Retirement records may also be inspected by public

employee organizations under conditions outlined in §§ 21-504 or 21-505 of the State

Personnel and Pensions Article.

See

GP § 4-312(c). The law also allows the sharing of

certain information for purposes of administering the State’s optional defined

contribution system in accordance with § 21-505 of the State Personnel and Pensions

Article.

See

GP § 4-312(c). A law enforcement agency seeking the home address of a

retired employee is entitled to inspect retirement records in order to contact that

person on official business. GP § 4-312(b)(iv). Other exceptions authorize access by a

person in interest, an employee’s appointing authority, and certain persons involved in

administering a deceased individual’s estate.

Id.

6. Student Records

Under GP § 4-313, school district records containing the “home address,

telephone number, personal e-mail address, biography, family, physiology, religion,

academic achievement, or physical or mental ability of a student” are protected;

however, these records are available to the student and to officials who supervise the

student. The custodian may allow inspection of students’ home addresses, phone

numbers, and personal e-mail addresses by organizations such as parent, student, or

teacher organizations, by a military organization or force, by an agent of a school or

board of education seeking to confirm an address or phone number, and by a

representative of a community college in the State.

See

Letter from Assistant Attorney

General Christine Steiner to Senator Victor Cushwa (Aug. 14, 1984) (names and

addresses of parents of Senatorial Scholarship recipients may not be released; the PIA

protects school district records about the family of a student). Even if some identifying

information is stripped from the student records, the exemption would still apply if a

person could readily match students with the disclosed files. Letter from Assistant

Attorney General Kathryn M. Rowe to Delegate Dereck Davis (Aug. 20, 2004). This

exception may be trumped by other federal or State law that permits access to student

records. 92

Opinions of the Attorney General

137, 146 (2007) (county auditor could

have access to student records to the extent allowed by State statute authorizing audit).

A separate exception for student records at institutions of higher education is

contained in GP § 4-355.

See

p. 3-50 below.

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

7. Police Reports Sought for Marketing Legal Services

Under GP § 4-315, police reports of traffic accidents, criminal charging

documents, and traffic citations are not available for inspection by an attorney or an

employee of an attorney who requests inspection for the purpose of soliciting or

marketing legal services.

See also

Business Occupations & Professions Article, § 10-

604. The federal district court in Maryland has ruled that this provision is of doubtful

constitutionality under the First Amendment.

Ficker v. Utz

, Civil No. WN-92-1466

(D. Md. Sept. 20, 1992) (order denying motion to dismiss).

Subsequently, some courts have upheld state efforts to restrict access to similar

public information when sought for commercial purposes while other courts have

struck down such restrictions.

See

Letter from Assistant Attorney General Kathryn M.

Rowe to Delegate John A. Giannetti, Jr. (Feb. 28, 2000);

see also

Md. Code Ann., Pub.

Safety §§ 2-306, 2-308, and COMAR 29.02.02.01 (governing the public dissemination

of motor vehicle accident reports and requiring certain information to be on those

reports, including the driver’s name). The statute includes an extensive list of

exceptions whereby personal information must be disclosed. The exceptions are

modeled in large part after provisions of the federal Driver’s Privacy Protection Act, 18

U.S.C. §§ 2721 through 2725. A custodian of a Motor Vehicle Administration record

may not disclose personal information from the record under any circumstances for

purposes of “telephone solicitation,” a term defined in the PIA. GP § 4-320(a) and

(e)(4).

In 2021, after overriding a gubernatorial veto, the General Assembly enacted the

Maryland Driver Privacy Act.

See

2021 Md. Laws, ch. 18. Though the law’s title refers

to drivers in particular, it broadly precludes “an officer, an employee, an agent, or a

contractor of the State or a political subdivision” from allowing inspection of “the part

of a public record that contains personal information or inspection of a photograph of

an individual by any federal agency seeking access for the purpose of enforcing federal

immigration law, unless the officer, employee, agent, or contractor is provided with a

valid warrant issued by a federal court or a court of th[e] State.” GP § 4-320.1(b)(1).

The provision also precludes warrantless “inspection using a facial recognition search

of a digital photographic image or actual stored data of a digital photographic image”

under the same circumstances.

Id.

§ 4-320.1(b)(2).

10. RBC Records Filed with Insurance Commissioner

Under GP § 4-323, records that relate to Risk Based Capital reports or plans are

protected. All Risk Based Capital reports and Risk Based Capital plans filed with the

Insurance Commissioner are to be kept confidential by the Commissioner, because they

constitute confidential commercial information that might be damaging to an insurer

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

if made available to competitors. These records may not be made public or subject to

subpoena, other than by the Commissioner, and then only for the purpose of

enforcement actions under the Insurance Code.

See

Md. Code Ann., Insurance § 4-

310.

11. Miscellaneous Records

Other public records protected under Part II include:

▪ Hospital records relating to medical administration, medical staff, medical

care, or other medical information and containing information about one

or more individuals, GP § 4-306;

▪ Library, archives, and museum material contributed by a private person

to the extent that any limitation of disclosure is a condition of the

contribution, GP § 4-309;

▪ Account holders and beneficiaries under the State’s College Savings Plans

program, GP § 4-314;

▪ Certain school safety evaluations, emergency plans, and emergency

response policies and guidelines, GP § 4-314.1;

▪ Department of Natural Resources’ records containing personal

information about the owner of a registered vessel, GP § 4-317;

▪ Certain records created or obtained by or submitted to the Maryland

Transit Administration in connection with electronic fare media, GP

§ 4-318;

▪ Certain records created or obtained by or submitted to the Maryland

Transportation Authority in connection with an electronic toll collection

system or an associated transaction system, GP § 4-319;

▪ Recorded images produced by systems used to monitor compliance with

traffic control signals, speed limits, or certain vehicle height restrictions,

GP § 4-321;

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

▪ Applications for certification and claims for credits filed under the

Renewable Fuels Promotion Act of 2005, GP § 4-324;

▪ Records relating to persons authorized to sell, purchase, rent, or transfer

regulated firearms, or to carry, wear, or transport a handgun, GP § 4-325;

▪ License plate numbers and other data collected by or derived from certain

automatic license plate reader systems, GP § 4-326; and

▪ Criminal and police records relating to certain criminal convictions that

are shielded from public access under Title 10, Subtitle 3 of the Criminal

Procedure Article, GP § 4-327.

C. Required Denials

─

Specific Information

Under Subtitle 3, Part III, unless otherwise provided by law, the custodian must

deny inspection of the part of a public record that contains the following specific

information:

1. Medical, Psychological, and Sociological Data

GP § 4-329(b) prevents disclosure of medical or psychological information about

an individual person, as well as personal information about a person with a disability.

The exception also explicitly makes confidential certain reports that local health

departments receive from physicians who diagnose cases of HIV or AIDS. GP § 4-

329(b)(3).

Thus, medical information such as the symptoms of an ill or injured individual

recorded during a call to 911 to assist in dispatch of emergency personnel is not to be

released. 90

Opinions of the Attorney General

45, 53 (2005). A record containing

medical information need not identify an individual with absolute precision to fall

within this exception, if other unredacted information permits identification of the

individual with reasonable certainty.

. at 54-55. Medical and psychological

information is available for inspection by the person in interest to the extent permitted

by Title 4, Subtitle 3 of the Health-General Article.

See

Opinions of the Attorney

General

297, 302 (1986) (tape recording of involuntary admission hearing may be

disclosed only to a patient or authorized representative). GP § 4-329 does not protect

from disclosure autopsy reports of a medical examiner, but does protect photographs

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

and other documents developed in connection with an autopsy.

See

Letter from

Assistant Attorney General Kathryn M. Rowe to Senator Leo E. Green (May 30, 2003).

The exemption for personal information about an individual with a disability,

which was added to the PIA in 2006, is apparently intended to restrict disclosure of

addresses of community residences and group homes that serve individuals with

disabilities.

See

Bill Review Letter of Attorney General J. Joseph Curran, Jr. to

Governor Robert L. Ehrlich concerning House Bill 1625 and Senate Bill 1040 (May 1,

2006). An exception in the exemption related to nursing homes and assisted living

facilities has raised interpretive questions.

Section 4-330 forbids disclosure of “sociological information.” However, this

basis for denial may be used only if an official custodian has adopted rules or regulations

that define, for the records within that official’s responsibility, the meaning and scope

of “sociological data.” The Division of Parole and Probation of the Department of

Public Safety and Correctional Services, for example, has adopted regulations (COMAR

12.11.02.02B(13)) that define “sociological data.” While the Act itself does not define

“sociological data,”

see

Letter from Assistant Attorney General Kathryn M. Rowe to

Senator Nancy J. King (Feb. 9, 2011), it seems unlikely that the Legislature intended to

authorize agencies to withhold aggregate statistical compilations under this provision.

2. Home Addresses and Phone Numbers of Public Employees

GP § 4-331 prevents disclosure of the home address, personal telephone number,

and personal e-mail address of a public employee unless the employee consents or the

employing unit determines that inspection is needed to protect the public interest.

Thus, for example, the home telephone number of a State employee would be redacted

from records otherwise available to a requester.

See Office of the Governor v.

Washington Post Co.

, 360 Md. 520, 550 (2000). Similarly, our Office has long been of

the view that the personal cellphone numbers of State employees are equivalent to

home telephone numbers and thus are protected from disclosure under this exemption.

Legislation enacted in 2023 codified that understanding and clarified that personal e-

mail addresses are protected as well.

See

2023 Md. Laws, ch. 107. Public employee

organizations are permitted greater access to the information protected by this

exemption under certain conditions outlined in § 3-208 and § 21-504 of the State

Personnel and Pensions Article. Also, if a public employee is a licensee, members of

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

the General Assembly may obtain the licensee’s home address pursuant to GP § 4-

103(c).

See

Letter from Assistant Attorney General Robert A. Zarnoch to Michael A.

Noonan, Esquire (Dec. 23, 1993); Letters from Assistant Attorney General Robert A.

Zarnoch to Dr. William AuMiller (Feb. 21, 2005; Nov. 29, 2000) (State legislators are

entitled to names and addresses of teachers and other certified employees of county

boards of education).

3. Occupational and Professional Licensing Records

GP § 4-333 contains a general privacy protection for occupational and

professional licensing records on individual persons. This amendment resulted from a

recommendation of the Governor’s Information Practices Commission. In explaining

its recommendation, the Commission stated:

The observation was made earlier in this report that the

formulation of sound public policy in the area of information

practices requires the striking of a delicate balance among

competing interests. The occupational and professional licensing

field provides a good illustration of this dictum. The various

licensing boards throughout the State need to collect a sufficient

amount of personally identifiable information in order to assess the

qualifications of candidates. The public has a right to examine

certain items in licensure files to be assured that specific licensees

are competent and qualified. Licensees, in turn, have a right to

expect that boards limit themselves to the collection of relevant

and necessary information, and that strict limitations are placed on

the type of personally identifiable data available for public

inspection.

The Information Practices Commission has invested a

considerable amount of time and energy in attempting to

determine which data elements pertinent to licensees should be

available for the public, and which items should be confidential.

The Commission believes that its recommendations constitute a

careful balancing of the access rights of the public and the privacy

rights of licensees. The Commission asserts that the public has a

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

right to have access to basic directory information about a licensee,

should it need to contact the licensee. The Commission believes,

however, that under usual circumstances, the business address and

business telephone number should be disclosed rather than

residential data. If, however, the board cannot furnish the business

address, it should make the licensee’s home address available to the

public. The Commission furthermore asserts that the public has a

right to examine a licensee’s educational and occupational

background and professional qualifications. Before hiring a

plumber, for example, an individual should have the right to assess

the plumber’s credentials as presented to the Department of

Licensing and Regulation. . . . If a board has determined that a

licensee was guilty or culpable of some unfair or illegal practice and

subsequently took disciplinary action against that licensee, the

public has a right to know that as well. Finally, if a licensee is

required by statute to provide evidence of financial responsibility,

that evidence should also be available for public inspection. This

latter issue is of particular importance in the home improvement

field.

The Commission does not believe that the release of other

personally identifiable information pertinent to licensees would

serve the public interest . . . . The Commission recognizes that

there may be extenuating circumstances in which a compelling

public purpose would be served by the release of data in addition

to that recommended by the Commission. The Commission

believes that discretionary authority should be given to records’

custodians to release additional data; however, custodians should

be required to issue rules and regulations explaining the need and

the basis for disclosure.

Governor’s Information Practices Commission, Final Report 535-38 (1982).

Consistent with the purposes outlined in that report, this provision generally

protects the professional and occupation licensing records “of an individual” from

disclosure but requires certain specified information—such as (among other things) the

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

name, business address, and educational qualifications of the licensee—to be disclosed.

See

GP § 4-333(a), (b). The provision also permits custodians to promulgate regulations

allowing for disclosure of information that would otherwise be protected if there is a

“compelling public interest” in disclosure. GP § 4-333(c). The Department of Labor

has, for example, concluded that “a compelling public interest” is served by disclosure

of, among other information, the number, nature, and status of complaints against a

licensee, if the requester is contemplating a contract with the licensee. COMAR

09.01.04.11. As noted above, this exemption applies only to licensees who are

individuals and not to business entities. 71

Opinions of the Attorney General

305, 311

(1986). A 2006 amendment of the exemption limits disclosure of the home address of

a licensee if the location is identified as the home address of an individual with a

disability. Under a 2023 amendment, custodians must now disclose the “business e-

mail of the licensee, if the e-mail address is identified by the licensee as a business e-

mail address.” 2023 Md. Laws, ch. 107.

4. Trade Secrets; Confidential Business and Financial Information

GP § 4-335 prevents disclosure of trade secrets, confidential commercial or

financial information, and confidential geological or geophysical information, if that

information is furnished by or obtained from any person or governmental unit. The

comparable FOIA exemptions are similar.

See

5 U.S.C. § 552(b)(4) (protecting “[t]rade

secrets and commercial or financial information obtained from a person and privileged

or confidential”); § 552(b)(9) (protecting “geological and geophysical information and

data, including maps concerning wells”). Note, however, that the federal exemption

for geological and geophysical information, unlike the analogous Maryland exemption,

is not expressly limited to “confidential” information, meaning that the Maryland

exemption may be narrower.

See

Letter from Assistant Attorney General Jeremy

McCoy to Delegate Vaughn Stewart, at 4 (Sept. 23, 2021). The geological or geophysical

data provision is also obviously limited in scope and in practice applies only to a few

Maryland agencies.

Given the similarity between Maryland’s exemption and the analogous federal

exemptions, federal cases and FOIA legislative history are highly persuasive in

interpreting what is now GP § 4-335.

See Amster v. Baker

, 453 Md. 68, 79 (2017); 63

Opinions of the Attorney General

355, 360-62 (1978). The U.S. Department of Justice

publishes a guide on the scope and extent of the analogous FOIA exemptions. U.S.

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

Department of Justice,

Guide to the Freedom of Information Act

Exemption 4

(available on-line at https://www.justice.gov/oip/doj-guide-freedom-information-act-

0).

Under FOIA, a “trade secret” is considered a “secret, commercially valuable plan,

formula, process, or device that is used for the making, preparing, compounding, or

processing of trade commodities and that can be said to be the end product of either

innovation or substantial effort.”

Prince George’s County v. Washington Post Co.

, 149

Md. App. 289, 312, n.17 (2003) (citing

Public Citizen Health Research Group v. FDA

704 F.2d 1280, 1288 (D.C. Cir. 1983));

see also

Opinions of the Attorney General

359 (defining a “trade secret” as “an unpatented secret formula or process known only

to certain individuals using it in compounding some article of trade having commercial

value. Secrecy is an essential element. Thus, [a] trade secret is something known to

only one or a few, kept from the general public, and not susceptible of general

knowledge. If the principles incorporated in a device are known to the industry, there

is no trade secret . . . .” (footnotes, internal quotations, and citations omitted)).

Often the more difficult inquiry is what constitutes confidential commercial or

financial information. To fit within that exemption, the information must, of course,

be of a commercial or financial nature, and it must be obtained from a person outside

the agency or from another governmental unit. Information generated by the agency

itself is not covered by GP § 4-335, but it may be protected from disclosure by a

different exception.

See Stromberg Metal Works

Inc. v. University of Maryland

382

Md. 151, 167-70 (2004);

Federal Open Market Committee v. Merrill

, 443 U.S. 340, 360

(1979).

In addition, a record is not confidential commercial or financial information

simply because it was generated in the course of a transaction or has some other indirect

connection to commercial activity. In

Office of the Governor

, for example, the

Supreme Court of Maryland held that a record of a telephone call about an economic

development project does not itself constitute confidential commercial information,

although notes detailing the substance of the discussion might. 360 Md. at 549.

Under Maryland law, the proper test to determine if commercial information is

“confidential” is relatively clear as applied to information

voluntarily

supplied to the

government but still largely unsettled as applied to information

required

to be supplied

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

to the government. As to commercial information that is voluntarily supplied to the

government, the Supreme Court of Maryland has held, relying on the then-existing

federal standard, that such information is “‘confidential’—and therefore exempt from

disclosure under the [PIA]—if it ‘would customarily not be released to the public by

the person from whom it was obtained.’”

Amster

, 453 Md.

at 81 (quoting

Critical Mass

Energy Project v. Nuclear Regulatory Commission

, 975 F.2d 871, 879 (D.C. Cir. 1992)).

The Court applied this test to a commercial lease that had been voluntarily supplied to

a local government by a landowner and held that the local government and the

landowner had not met their burden of proving that all of the information in the lease

was confidential, because they had “not demonstrated that [the landowner] would not

‘customarily’ disclose” the contents of the records.

Id.

at 86;

see also

Opinions of

the Attorney General

188, 189 (1992) (value or description of abandoned property

should not be disclosed because it constitutes personal financial information); Opinion

No. 85-011 (April 15, 1985) (unpublished) (names of municipal bond holders should

not be disclosed because they constitute information about a particular financial

interest of an individual); Memorandum from Jack Schwartz to Principal Counsel (Aug.

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

17, 1995) (information that an individual was a lottery winner is considered a record of

an individual person’s finances and the Lottery Agency was prohibited from disclosing

to the press the individual’s identity); Letter of Assistant Attorney General Robert A.

Zarnoch to Delegate Kevin Kelly (July 18, 2007) (public records related to paper gaming

profits of businesses in Allegany County not covered by this exception); 71

Opinions of

the Attorney General

282, 284 (1986) (county ethics ordinance, under authority of State

ethics law, requires disclosure of information ordinarily non-disclosable under GP § 4-

336(b)). The exemption is not limited to the actual value of the asset. Even information

that reveals the

comparative

value of different assets is exempt from disclosure.

See

Immanuel v. Comptroller of the Treasury

, 449 Md. 76, 97-98 (2016) (ranking of assets

by value reveals financial information even if absolute values are not disclosed).

The rationale for this exception was explained by the Governor’s Information

Practices Commission:

In the performance of their duties, public agencies quite

properly collect a significant amount of detailed financial

information pertaining to individuals. This data is [

sic

] essential in

determining eligibility for State scholarship programs, income

maintenance benefits, subsidized housing programs, and many

other areas.

While the Commission recognizes that this data must be

available to agencies, this does not mean that such information

should be available to third parties . . . .

The Commission . . . recommends that an amendment be added

to the Public Information Act specifying that personally

identifiable data which is financial in character not be disclosed,

unless otherwise provided by law. It is important to emphasize the

last phrase, “unless otherwise provided by law.” Enactment of the

above recommendation would have no impact whatsoever on

those personally identifiable financial records which the

Legislature has determined should be available for public

inspection. For example, the salaries of public employees would

continue to be available under the Public Information Act; the

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

Commission completely supports the disclosure of this

information. The Commission’s recommendation, therefore,

would only affect financial data in those record systems, . . . which

have been inadvertently disclosed.

Governor’s Information Practices Commission, Final Report 534-35 (1982).

6. Records Containing Investigatory Procurement Information

GP § 4-337 prohibits the disclosure of any part of a public record that contains

procurement information generated by the federal government or another state as a

result of an investigation into suspected collusive or anticompetitive activity on the

part of a transportation contractor. The reason for the exemption was explained as

follows:

The Department of Transportation advises that if it receives the

result of an investigation into suspected bid rigging activity on the

part of a potential contractor, which investigation was conducted

by the federal government or another State, that information is

subject to disclosure under the Maryland Public Information Law.

As a result, these sources have been unwilling to share this

information with Maryland officials.

House Bill 228 would provide assurances to these sources that

the information provided to Maryland investigators will remain

confidential and not be subject to disclosure. Section 10-617 of the

State Government Article, to which the bill is drafted, limits access

to a part of a public record. This means that the results of the

Maryland investigation would be public information, except for

those parts which relate to the information gathered from the

confidential sources. As a result, the MDOT will have access to a

greater range of information when conducting its own

investigation into collusive or anticompetitive activity.

Bill Analysis, House Bill 228 (1994).

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

7. Names and Addresses of Senior Center Enrollees

GP § 4-340(b) makes confidential the name, address, telephone number, and e-

mail address of a member or enrollee of a senior citizen activities center. The statute

permits access to the information by the person in interest, as well as law enforcement

and emergency services personnel. Such information can also be protected under the

exception for sociological information if an agency adopts a regulation defining

sociological information.

See

Letter from Assistant Attorney General Kathryn M. Rowe

to Senator Nancy J. King (Feb. 9, 2011).

8. Distribution Lists

GP § 4-341 was enacted in 2018 and requires a custodian to deny inspection of

“a distribution list and a request to be added to a distribution list” if:

▪ the distribution list “is used by a governmental entity or an elected official

for the sole purpose of: (1) periodically sending news about the official

activities of the governmental entity or elected official; or (2) sending

informational notices or emergency alerts”; and

▪ the distribution list or request to be added to the distribution list “identifies

a physical address, an e-mail address, or a telephone number of an

individual.”

For purposes of this section, “governmental entity” is defined as “a unit or an

instrumentality of the State or of a political subdivision.”

9. Miscellaneous Information

Other public information protected under Part III includes:

▪ Certain information about the application and commission of a notary public,

GP § 4-332;

▪ Social security numbers provided in applications for marriage licenses or

recreational licenses issued under the Fish and Fisheries title of the Natural

Resources Article, GP § 4-334;

▪ Information about security of information systems, GP § 4-338; and

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

▪ Information that identifies or contains personal information about a person,

including a commercial entity, that maintains an alarm or security system,

GP § 4-339.

D. Discretionary Exceptions

Under Subtitle 3, Part IV, a custodian

may

deny the right of inspection to certain

records or parts of records, but only if disclosure would be contrary to the “public

interest.” GP § 4-343. These records are:

▪ Interagency or intra-agency memoranda or letters that would be privileged

in litigation, GP § 4-344;

▪ Testing records for academic, employment, or licensing examinations, GP

§ 4-345;

▪ Specific details of a research project that an institution of the State or of a

political subdivision is conducting, GP § 4-346;

▪ Information relating to an invention owned by a State public institution of

higher education, GP § 4-347;

▪ Information relating to a trade secret, confidential commercial information,

or confidential financial information owned by the Maryland Technology

Development Corporation or by a public senior higher educational

institution, GP § 4-348;

▪ Contents of a real estate appraisal made for a public agency about a pending

acquisition (except from the property owner), GP § 4-349;

▪ Site-specific location of certain plants, animals, or property, GP § 4-350;

▪ Records of investigation, intelligence information, security procedures, or

investigatory files, GP § 4-351;

▪ Plans and procedures relating to emergency procedures and records relating

to buildings, facilities, and infrastructure, the disclosure of which would

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

jeopardize security, facilitate planning of a terrorist attack, or endanger life

or physical safety, GP § 4-352;

▪ Records reflecting rates for certain services and facilities held by the

Maryland Port Administration and research concerning the competitive

position of the port, GP § 4-353;

▪ Records of University of Maryland Global Campus concerning the provision

of competitive educational services, GP § 4-354; and

▪ Records of a public institution of higher education that contain personal

information about a student, GP § 4-355.

▪ Records of 911 communications that depict a victim of domestic violence,

sexual abuse, or child abuse, GP § 4-356.

A “person in interest”—generally the person who is the subject of the record,

GP § 4-101(g)—has a greater right of access to the information contained in

investigatory and testing records. GP §§ 4-351(b) and 4-345(b);

see also

Chapter 2, Part

A, above.

These exceptions are “‘discretionary’ not in the sense that the agency may

withhold or disclose as it pleases, but in the sense that the agency must make a judgment

whether . . . disclosure ‘would be contrary to the public interest.’”

Glass v. Anne

Arundel County

, 453 Md. 201, 210 (2017). Whether disclosure would be “contrary to

the public interest” under these exceptions is in the custodian’s “sound discretion,” to

be exercised “only after careful consideration is given to the public interest involved.”

Opinions of the Attorney General

563, 566 (1973). In making this determination,

the custodian must carefully balance the possible consequences of disclosure against

the public interest in favor of disclosure. 64

Opinions of the Attorney General

236, 242

(1979). If the custodian denies access under one of the discretionary exemptions, the

custodian must provide “a brief explanation of why the denial is necessary” and “an

explanation of why redacting information would not address the reasons for the

denial.” GP § 4-203(c)(1)(i)2.

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

1. Inter- and Intra-Agency Memoranda and Letters

GP § 4-344 allows a custodian to deny inspection of “any part of an interagency

or intra-agency letter or memorandum that would not be available by law to a private

party in litigation with the unit.” This exemption “to some extent reflects that part of

the executive privilege doctrine encompassing letters, memoranda, or similar internal

government documents containing confidential opinions, deliberations, advice or

recommendations from one governmental employee or official to another for the

purpose of assisting the latter official in the decision-making function.”

Office of the

Governor v. Washington Post Company

, 360 Md. 520, 551 (2000);

see also

Opinions

of the Attorney General

98, 100-02 (1981) (executive agency budget recommendations

requested by and submitted to the Governor in confidence are subject to executive

privilege). However, the privilege can apply to a broader range of officials than the

constitutionally-based executive privilege, which was discussed in more detail in

Section A.4 above. This privilege, commonly referred to as the deliberative process

privilege, arose from the common law, the rules of evidence, and the discovery rules

for civil proceedings.

Stromberg Metal Works

Inc. v. University of Maryland

, 382 Md.

151, 163 (2004). Although the privilege “gives a measure of protection to the

deliberative and mental process of decision-makers,” it “differs from other evidentiary

privileges because it is for the benefit of the public and not the government officials

who claim the privilege.”

Maryland Bd. of Physicians v. Geier

, 451 Md. 526, 568-69

(2017) (internal quotations, citations, and modifications omitted) (explaining that

“preventing the disclosure of [a professional disciplinary board’s] pre-decisional

deliberations greatly benefits the public by allowing [that board] to undertake their

core public protection function without the constant threat of harassment and

intimidation by aggrieved parties.”).

An agency that claims this privilege, when challenged, has the initial burden to

provide “a relatively detailed analysis” as to why the exemption applies, including

“enough detail to make understandable the issues involved in the claim of exemption

without presenting so much detail as to compromise the privileged material.”

Cranford

v. Montgomery County

300 Md. 759, 778 (1984). If the agency meets this initial

burden and the court determines that the exemption applies, however, then it is

presumed that disclosure of the material would be contrary to the public interest.

Id.

at 776.

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

This exception is very close in wording to the FOIA exemption in 5 U.S.C.

§ 552(b)(5), and the case law developed under that exemption is persuasive in

interpreting GP § 4-344.

Stromberg

Metal Works

Inc.

, 382 Md. at 163-64; 58

Opinions

of the Attorney General

53, 56 (1973). The FOIA exemption is “intended to preserve

the process of agency decision-making from the natural muting of free and frank

discussion which would occur if each voice of opinion and recommendation could be

heard and questioned by the world outside the agency.” 1 O’Reilly,

Federal

Information Disclosure

§ 15.01 (Summer 2021 ed.);

see also

Gallagher

, 141 Md. App. at 676 (adopting

the so-called “common-interest” rule, under which “parties with shared interests in

actual or pending litigation against a common adversary may share privileged

information without waiving their right to assert the privilege”). At the same time, the

Appellate Court of Maryland has recently emphasized that an agency must be able to

demonstrate that the material it seeks to withhold was created in anticipation of

litigation and not in the ordinary course of business.

See Baltimore Action Legal Team

v. Office of the State’s Attorney of Baltimore City

, 253 Md. App. 360 (2021).

The difficulty of applying the GP § 4-344 exception to the myriad of agency-

generated documents is obvious. We suggest that a presumption of disclosure should

prevail, unless the responsible agency official can demonstrate specific reasons why

agency decision-making may be compromised if the questioned records are released.

In applying the deliberative process privilege, an agency should determine whether

disclosure of the requested information “would actually inhibit candor in the decision-

making process if made available to the public.”

Army Times Publishing Co. v.

Department of the Air Force

, 998 F.2d 1067, 1072 (D.C. Cir. 1993). Unless specific

reasons can be articulated, the agency decision to withhold documents might be

overturned by the courts.

Cranford v. Montgomery County

, 300 Md. 759 (1984), for example,

Maryland’s Supreme Court vacated a decision by the Appellate Court of Maryland

upholding an agency’s decision to withhold documents. The Supreme Court stated that

the agency’s proffered justification was too general and conclusory. The Supreme Court

also cited the failure of the courts below to analyze the agency memoranda exemption

in relationship to discovery of particular documents and suggested that the lower courts

had put too much emphasis on the public policy justification for nondisclosure. The

Court agreed that reports prepared by outside consultants in anticipation of litigation

are not routinely discoverable and may be protected from disclosure under the inter-

agency and intra-agency documents exemption.

Cranford

, 300 Md. at 784. If the

expert who made the report is to be called at trial, however, the report is not protected,

because it is discoverable under Rule 2-402(g), which requires a party to “produce any

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

written report made by the expert concerning those findings and opinion.” 300 Md. at

783.

Maryland Attorney General opinions on this exception are 58

Opinions of the

Attorney General

53 (1975) and No. 75-202 (Dec. 1, 1975) (unpublished). Sources on

the scope and extent of the FOIA exemption are: 1 Pierce,

Administrative Law Treatise

(5th ed. § 5.11); 1 O’Reilly,

Federal Information Disclosure

, Ch. 15 (Summer 2021 ed.);

168 A.L.R. Fed. 143; and United States Department of Justice, Guide to the Freedom of

Information Act (https://www.justice.gov/d9/pages/attachments/2023/03/13/exemption

_5_final.pdf).

2. Testing Data

GP § 4-345 allows a custodian to deny access to testing data for licensing,

employment or academic examinations. For promotional examinations, however, a

person who took the exam is given a right to inspect, but not copy, the examination

and its results.

See, e.g.

PIACB Decisions

23-16 (May 3, 2023).

3. Research Projects

The specific details of an ongoing research project conducted by an institution

of the State or a political subdivision (

e.g.

, medical research project) need not be

disclosed by the custodian. GP § 4-346. Only the name, title, expenditures, and the

time when the final project summary will be available must be disclosed.

See

Opinions of the Attorney General

53, 59 (1973) for an application of this exception to

a consultant’s report.

See also

Letter from Assistant Attorney General Catherine M.

Shultz to Leon Johnson, Chairman, Governor’s Commission on Migratory and Seasonal

Labor (Aug. 8, 1985) (census information revealing individual migrants’ names may be

protected under this provision).

4. Inventions Owned by Higher Education Institutions

Under GP § 4-347, information disclosing or relating to an invention owned in

whole or in part by a State public institution of higher education need not be disclosed

for a limited period. The purpose of this exception is to allow the institution an

opportunity to evaluate whether to patent or market the invention and pursue

economic development and licensing opportunities. However, this exception does not

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

apply if the information has been published or disseminated by the inventors in the

course of their academic activities or if it has been disclosed in a published patent. The

exception also does not apply if the invention has been licensed by the institution for

at least four years, or if four years have elapsed from the date of the written disclosure

of the invention to the institution.

5. Certain Proprietary Information Owned by the Maryland Technology

Development Corporation or Senior Higher Education Institutions

GP § 4-348 allows protection of trade secret, confidential commercial

information, and confidential financial information owned, in whole or in part, by the

Maryland Technology Development Corporation or by a public senior higher education

institution (Morgan State University, St. Mary’s College, and constituent institutions of

the University of Maryland) in connection with economic development efforts and

certain arrangements with the private sector.

6. Real Estate Appraisals

GP § 4-349 concerns appraisals of real estate contemplated for acquisition by a

State or local entity. An appraisal need not be disclosed until title has passed to that

entity. However, the contents of the appraisal are available to the owner of the

property at any time, unless some other statute would prohibit access.

7. Location of Plants, Animals, or Property

GP § 4-350 allows a custodian to deny inspection of a record that contains the

location of an endangered or threatened species of plant or animal, plants and animals

in need of conservation, a cave, or an historic property. However, this provision does

not authorize the denial of information requested by the property owner or by any

entity authorized to take the property through condemnation.

8. Investigatory Records

GP § 4-351 permits the withholding of certain investigatory records and records

that contain intelligence information and security procedures. The determinations

required of the custodian vary depending on the particular records at issue.

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

For certain named agencies, the custodian may deny the right of inspection of

records of investigations conducted by the agency, intelligence information, or security

procedures. The listed agencies are: any sheriff or police department, any county or

city attorney, State’s Attorney, or the Attorney General’s office. GP § 4-351(a)(1). This

exception also applies to intelligence information and security procedures of these

agencies, as well as of State and local correctional facilities. GP § 4-351(a)(3). Although

not listed in GP § 4-351(a)(1), the State Prosecutor is considered in the same category

as a State’s Attorney.

Office of the State Prosecutor v. Judicial Watch

Inc.

, 356 Md.

118, 141 (1999). Many records received or created by law enforcement agencies may

fall within this category.

See

e.g.

, 92

Opinions of the Attorney General

26, 44 (2007)

(mug shot considered an investigatory record). Not every record in the possession of

the law enforcement agency constitutes a record of an investigation, however.

See

e.g.

, 63

Opinions of the Attorney General

543, 547 (1978) (arrest logs not investigatory

records).

When the records in question are investigatory, and when they come from one

of these enumerated agencies, the exception applies without any need for an actual

showing that the records were compiled specifically for law enforcement or

prosecution purposes. The Supreme Court of Maryland has instead held that the

investigatory records of one of the seven enumerated agencies are presumed to be for

law enforcement purposes.

Superintendent v. Henschen

, 279 Md. 468, 475 (1977);

see

also Blythe v. State

, 161 Md. App. 492, 525 n.6 (2005). Thus, an enumerated agency

need not make a particularized showing of a law enforcement purpose to justify the

withholding of a record relating to a criminal investigation.

See Office of the State

Prosecutor

, 356 Md. at 140. As discussed further below (at page 3-43), however, once

an investigation is closed, disclosure is less likely to be “contrary to the public interest,”

and courts will require a more particularized factual basis for the separate requirement

that the denial be in the “public interest.”

City of Frederick v. Randall Family

LLC

154 Md. App. 543, 562-67 (2004);

Prince George’s County v. Washington Post Co.

, 149

Md. App. 289, 333 (2003).

On the other hand, the investigatory files of other agencies are exempt from

disclosure only if there is a demonstration that the agency compiled them for a law

enforcement, judicial, correctional, or prosecution purpose. GP § 4-351(a)(2). What

constitutes a “law enforcement” purpose within the meaning of this exemption is broad;

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

the exemption “‘covers investigatory files related to enforcement of [a]ll kinds of laws,

labor and securities laws as well as criminal laws. This would include files prepared in

connection with related Government litigation and adjudicative proceedings.’”

Equitable Tr. Co. v. State, Comm'n on Human Relations

, 42 Md. App. 53, 76

(1979),

rev'd

on other grounds

, 287 Md. 80 (1980) (quoting

Wellman Indus., Inc. v.

NLRB

, 490 F.2d 427, 430 (4th Cir. 1974));

see also

GP § 4-343. Finally, a custodian is

required to notify the person in interest when the record is inspected but may not

disclose the identity of the requester. GP § 4-351(e).

In carrying out its statutory function, an agency might have records obtained

from investigatory files of another agency. In these circumstances, it is appropriate for

the agency to withhold investigatory materials if the agency that provided the

information would itself deny access under the investigatory records exemption. 89

Opinions of the Attorney General

31, 44 (2004) (addressing records of the Office of the

Independent Juvenile Justice Monitor collected in the investigation of Department of

Juvenile Services facilities).

Maryland’s current investigatory records exception is similar to the investigatory

records exemption in FOIA, 5 U.S.C. § 552(b)(7), and the case law developed under that

exemption should be of assistance in interpreting GP § 4-351.

Faulk v. State’s Attorney

for Harford County

, 299 Md. 493, 506-11 (1984). FOIA cases also discuss criteria for

determining whether a record was compiled for law enforcement purposes.

See

e.g.

John Doe Agency v. John Doe Corp.

, 493 U.S. 146, 153-55 (1990) (information or

records not initially obtained for law enforcement purposes may qualify for the

exemption if they were subsequently compiled for such purposes before the

government invokes the exemption);

Rosenfeld v. Department of Justice

, 57 F.3d 803,

808 (9th Cir. 1995) (where compiling agency has clear law enforcement mandate,

government has easier burden to establish that record it seeks to withhold was

compiled for law enforcement purposes; under these circumstances, the government

need only establish rational nexus between the enforcement of federal law and the

document for which the law enforcement exemption is claimed);

see also

55 A.L.R. Fed.

583.

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

A custodian of investigatory records must nonetheless disclose them to any

person, unless the custodian determines that disclosure would be “contrary to the

public interest” or unless other law would prevent disclosure. For example, Maryland’s

Supreme Court held that it would be contrary to the public interest to disclose the

Baltimore City Police Department’s report of its internal investigation of a police

officer. Disclosure of an internal report would discourage witnesses or other persons

with information from cooperating.

Mayor and City Council of Baltimore v. Maryland

Comm. Against the Gun Ban

, 329 Md. 78, 94-96 (1993);

see also

Opinions of the

Attorney General

183, 185 (1992) (custodian of an investigatory record containing the

name and address of a crime victim would be required under the PIA to consider the

assertions of the public interest made by the requester, as well as the privacy interests

of the victim); 64

Opinions of the Attorney General

236, 241 (1979) (police department

need not disclose police investigative report to the extent that disclosure would be

contrary to the public interest). In justifying the denial of a request for an investigatory

record under GP § 4-351, the courts have recognized a distinction based on whether

an investigation is ongoing or closed. While an investigation is ongoing or the

defendant is awaiting trial, the justification for why disclosure would be contrary to

the public interest is obvious. As noted above, however, once an investigation is closed,

disclosure is less likely to be “contrary to the public interest,” and courts will require a

more particularized factual basis for a “public interest” denial.

Randall Family

LLC

154 Md. App. at 562-67;

Washington Post Co.

, 149 Md. App. at 333.

The rules are somewhat different when the request for an investigatory file is

made by the “person in interest.” Under GP § 4-351(b), the “person in interest” is

entitled to inspect investigatory records of which he or she is the subject unless

production would:

(1) interfere with a valid and proper law enforcement

proceeding;

(2) deprive another person of a right to a fair trial or an impartial

adjudication;

(3) constitute an unwarranted invasion of personal privacy;

(4) disclose the identity of a confidential source;

(5) disclose an investigative technique or procedure;

Maryland Public Information Act Manual (18th ed., Oct. 2023) 3-

(6) prejudice an investigation; or

(7) endanger the life or physical safety of an individual.

See generally Maryland Comm. Against the Gun Ban

, 329 Md. at 81-83, 96-97;

Briscoe

v. Mayor and City Council of Baltimore

, 100 Md. App. 124, 129-31 (1994); 82

Opinions

of the Attorney General

111, 113-14 (1997); 81

Opinions of the Attorney General

154,

155-56 (1996). Because a person in interest enjoys a favored status, a custodian must

point out precisely which of the seven grounds enumerated in GP

§ 4-351(b) justifies the withholding of an investigatory record and explain precisely

why it would do so.

Blythe

, 161 Md. App. at 531.

The number and scope of these factors will often lead to a denial of disclosure

by the law enforcement agency, especially where records have been recently obtained

and are in active use in investigations. The seven factors listed above may also be

considered as part of the more general “public interest” determination in deciding

whether to deny access to a person who is not a person in interest.

See National

Archives and Records Administration v. Favish

, 541 U.S. 157, 171-75 (2004) (request

for death-scene photographs of White House Counsel properly denied under FOIA

investigatory records exception in light of privacy interest of the decedent’s family).

Indeed, under limited circumstances, one of these factors might even justify an agency’s

refusal to confirm or deny that a record exists—something often referred to as a

“Glomar response.”

See Wilner v. National Sec. Agency

, 592 F.3d 60, 67-68 (2d Cir.

2009) (a “Glomar response” is a response that neither confirms nor denies the existence

of documents responsive to the request, and is permissible where to answer the FOIA

inquiry by confirming or denying the existence of responsive documents would “cause

harm cognizable under a[] FOIA exception”);