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Accountabilityby David A. Plymyer10:56 amJun 21, 20210

City’s narrow reading of the Public Information Act in SWP case is undercutting transparency

Mayor Brandon Scott ran on a platform of making city government more open and accountable. He should tell that to his law department. [OP-ED]

Above: With a vulnerable IT system and no cybersecurity insurance, the cost of recovering from a malware attack was high.

The Baltimore Law Department denied a request by The Brew for the inspector general’s full report on the investigation into the city housing department’s proposed MOU with Southwest Partnership (SWP) that would have given the nonprofit preferential rights to tax-delinquent properties on behalf of private developers.

Chief Solicitor Hilary Ruley told this website that the report concerns a personnel matter, is “investigatory” in nature, and was prepared “in anticipation of possible litigation.”

She claimed that all three factors justified denial of the request under the Maryland Public Information Act (MPIA.)

I disagree. The most troublesome of the purported justifications is her contention that the report of an investigation by the IG into the legality of a transaction is a “personnel record” that the city is prohibited from disclosing under the MPIA.

A cabinet-level firing and a tax-sale arrangement questioned by Baltimore’s inspector general are now mostly shrouded in secrecy.

In my opinion, the report is not a personnel record. It is an “investigatory file” governed by a separate provision of the MPIA.

Disregarding the difference under the MPIA between the investigatory files of inspectors general with the personnel records of employees would have an extraordinarily chilling effect on the public’s right to know what goes on inside local and state government.

Ruley gave The Brew a lengthy explanation of her conclusion, but the issue boils down to the interpretation of a single case decided by the Maryland Court of Appeals, Montgomery County v. Shropshire.

In that case the court held that the report of an investigation done into the conduct of two county police officers by the internal affairs division (IAD) of the police department was a “personnel record” under the MPIA.

That investigation was done in accordance with the Law Enforcement Officers’ Bill of Rights (LEOBR), the statutory prerequisite for taking disciplinary action against police officers that dictates how investigations leading to discipline must be done.

The court found that the IAD report was related to employee discipline and therefore was a personnel record.

Exemptions Must be Narrowly Construed

The General Assembly included the following mandate in the MPIA: “Unless an unwarranted invasion of the privacy of a person in interest would result, [the MPIA] shall be construed in favor of allowing inspection of a public record, with the least cost and least delay to the person or governmental unit that requests the inspection.”

Translation: Rule One in interpreting the MPIA is to construe exemptions to disclosure as narrowly as possible.

Ruley violated Rule One by applying the decision in Shropshire to an investigation initiated for a purpose other than employee discipline.

When the IG initiated an investigation into whether the MOU violated city law, it did so for a “law enforcement purpose” as that term is broadly defined for purposes of the MPIA.

For example, the Maryland Court of Special Appeals held in Equitable Trust Company v. Commission on Human Relations that investigations of discriminatory practices done by the Human Relations Commission are done for a law enforcement purpose within the meaning of the MPIA.

The Court of Appeals cited the Equitable Trust Company decision with approval in Fioretti v. Maryland Board of Dental Examiners. Like the Human Relations Commission, the city IG is not a traditional law enforcement agency, but its investigations into the legality of transactions and practices are done for a law enforcement purpose as defined by the MPIA.

The city IG has no authority over employee discipline. An analogy helps explain the key distinction that the law department failed to make.

An ordinary police report on an alleged crime is an investigatory file. On occasion the information in a report done by the Baltimore Police Department triggers disciplinary action against a city employee.

The record of that disciplinary action is protected as a personnel record, but that does not make the police report itself a personnel record. The police report remains subject to public inspection even if it names the employee believed to have committed a crime.

Where would the law department draw the line with its expansive interpretation of the Shropshire decision?

If the city auditor discovers an irregularity during the audit of a city agency, would the law department order the report suppressed because the employee responsible for the irregularity might be subject to disciplinary action?

The harm done to public transparency and accountability by the law department’s interpretation could be far-reaching.

An investigatory file may be withheld from inspection only under circumstances described in state law. The discretion of a custodian of the file to deny inspection is significantly reduced once an investigation is concluded and the matter closed – the custodian must specify the reason that continued denial is in the public interest.

To date no legitimate reason has been described for withholding the report of the city IG.

Ruley told The Brew that the IG’s report was prepared “in anticipation of possible litigation.” No, the report was prepared in accordance with the duty imposed on the IG by Article X of the City Charter to investigate “complaints of fraud, financial waste and abuse in City government.”

If the chief solicitor believes that release of the report would compromise litigation, then she must identify that litigation and explain why.

If there were concerns about identifying whistleblowers and the sources of complaints to the IG, they can be addressed through redactions.

More Than a Talking Point

Mayor Brandon Scott ran on a campaign platform that included a pledge to make city government more open and accountable to restore public confidence badly tarnished by the city’s last elected mayor, the criminal conduct of the Gun Task Trace Force and other scandals.

He spelled out what he called the “fundamentals of progress” in a recent Baltimore Sun column – integrity, transparency and accountability.

He should remind his agencies, especially the city solicitor and his staff, of that promise.
David A. Plymyer retired as Anne Arundel County Attorney in 2014 after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.

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