Getting Anton’s law passed last year in Annapolis was a milestone, but transparency advocates are discovering that making it work is the next challenge.
The law is named after Anton Black, the 19-year-old Black man who died in police custody in 2018 on the Eastern Shore.
The measure is aimed at making it easier for the public to gain access to information about officers disciplined in internal probes or who had numerous complaints lodged against them, and whether they had similar issues in previous employment.
The effect of the law was to revise how the Maryland Public Information Act handled internal police discipline and complaint records.
Those records had been exempted from disclosure under the law and treated as non-public personnel records, an exemption that continues to apply to other state and local government employees.
Anton’s Law reclassified police internal records so that they are no longer considered exempt personnel records.
BPD “arbitrarily and capriciously denied” a request from Baltimore Action Legal Team to waive fees of more than $1.4 million, the panel ruled.
A recent ruling by a three-judge panel of the Maryland Court of Special Appeals has given supporters hope that law enforcement agencies will do more to comply.
The ruling, which could still be reviewed by the state’s highest court, said that the Baltimore Police Department must hand over a set of discipline records at no cost.
The panel found that the BPD “arbitrarily and capriciously denied” a request from Baltimore Action Legal Team, a nonprofit advocacy group, to waive fees of $1,421,082.50 for the records “to which [BALT] was entitled.”
Matthew Zernhelt, head of litigation for BALT, said he was encouraged by his organization’s victory in the February 7 ruling.
He said he’d prefer the issue to play out in the courts rather than enact state Sen. Jill Carter’s proposed limits on fees, depending on whether the appellate court ruling stands.
Separately, the Maryland branch of the American Civil Liberties Union has sued the Calvert County sheriff and his office for refusing to provide documents and videos unless the ACLU paid $12,000 for the records.
The ACLU said the records might provide information about the police use of strip searches and body cavity searches, which the ACLU said has targeted Black people.
Another issue that could slow down or stymie requests in Montgomery County is a recent agreement with the police union to give the officers whose records are sought by the public 10 days to review them and potentially take steps to formally oppose release.
Darren Francke, assistant police chief for Montgomery County, said officers have so far not used the review time to block release of documents.
That review system is far from unique. State and local governments often have similar agreements to give advance notice to private companies with government contracts.
Cable companies and Amazon, for instance, regularly seek advance notice that a member of the public is seeking information about them.
Those arrangements often are written into their agreements with state and local governments, giving them time to mount a legal effort to block release.
Compiling a Database
At the University of Maryland, students working with professors at the Philip Merrill College of Journalism are compiling a statewide database of records disclosed under Anton’s Law.
Sean Mussenden, data editor for the Howard Center for Investigative Journalism, said the student reporters made about 120 records requests to Maryland police agencies.
The results are trickling in slowly. Part of the challenge is that police departments across the state do not have a uniform system for tracking cases, Mussenden said.
In some cases, smaller departments use paper records, while others track with software programs.
The way infractions are logged in vary widely – one officer may get written up for failing to wear his uniform properly. another for excessive force.
Such infractions may appear on the same spreadsheet, which University of Maryland reporters are sifting through to figure out which are the most significant cases.
Then they want to return to the police departments for more details in those cases. That, too, is contributing to a slow responses and, in some cases, requests for big fees.
“The sticking point has been the case files themselves,” Mussenden said. Reviewing them before public release takes police departments more time and effort, and often comes with a cost.
“We have seen huge variations in fees from $30 an hour to $250 an hour” – Sean Mussenden, Howard Center for Investigative Journalism.
But the price tags have ranged greatly. Some police department want to show the records to a lawyer whose hourly cost is usually in the hundreds of dollars. Others will run them by a clerk, who is well versed in the law, but whose hourly cost is substantially less.
“We have seen huge variations in fees,” Mussenden said, from about $250 per hour for a lawyer to about $30 per hour for a clerk to review the documents.
Chilling Effect on Police?
Justin Fenton, a Baltimore Banner reporter formerly with The Baltimore Sun, has been seeking a wide range of records from the city’s police department for several years.
Since Anton’s Law took effect, he has received records of internal investigations involving three officers. It has been slow and frustrating, part of what he sees as a pattern of delays from the BPD and other city agencies he has experienced for years.
“Some agencies feel they do not have to comply at all. They are reading the law differently. But the whole point of this was to create transparency,” he said.
Last year The Capital Gazette asked Anne Arundel County Police for records under Anton’s Law. It was rebuffed by department attorney Christine Ryder, who said disclosure could have a “chilling effect” on police and would be contrary to the public interest. But after Fenton contacted the department, it reversed course and agreed to provide records.
Anne Arundel County Police at first said disclosure would be contrary to the public interest.
Steve Thompson, a reporter for The Washington Post, said that he has yet to receive records from Baltimore, Prince George’s County or Montgomery County police departments, but that Maryland State Police produced documents. He filed about 150 requests across the state.
“I would estimate more than two-thirds of the agencies have responded in some way, and most of these have produced internal affairs records or data. The great majority of those who have provided records or data have done so for free,” Thompson wrote in an email.
“Only a few have charged what I would consider to be unreasonable fees. In most cases, I’m able to work with a department to narrow requests so that the labor in fulfilling them is not too burdensome, and that helps keep the fees down.”
Thompson has filed two complaints about fees to the Maryland Public Information Act Compliance Board.
Negotiating Fees Down
In Montgomery County, Joanna Silver, a defense lawyer active with the community-based Silver Spring Justice Coalition, said her group sought records in a handful of cases.
While the coalition did not receive complete records within the 30-day deadline, Silver said that the Montgomery County Sheriff’s Office and the Gaithersburg Police Department eventually did provide the records without charging any fees.
Her organization also negotiated with the Montgomery County Police Department to narrow a request, eliminating a $95,000 fee the department originally said it needed to charge, once the group agreed to forego video footage, she said.
Angela Valdez, a staff investigator for the federal public defender’s office, which covers all of Maryland, also reported mixed responses to the agency’s requests. The St. Mary’s County Sheriff’s Office complied relatively quickly and without a fee for information about one deputy, she said.
“Compared to everybody else, it was outstanding,” she said.
In Prince George’s County, the police department responded quickly to Valdez – in about 90 minutes – but only to say that the file Valdez’s office needed could not be released under the law because it was part of an investigative file exempt from disclosure.
(Once an investigation is completed, files can be released, but some departments spend months, even years, on an internal investigation, a move that some seeking records believe can be a delay tactic.)
Anton Black Family Lawsuit
Lisa Kershner, the Maryland public access ombudsman, who often mediates complaints about public records disputes, declined to describe what her office is seeing and hearing about how Anton’s Law is working.
She said doing so could affect the perception that she is a neutral arbiter when she mediates complaints about record access. Kershner’s office produces annual reports near the end of each calendar year that could offer some clues.
While police agencies and the public grapple over Anton’s Law, Black’s family is moving ahead with a federal wrongful death lawsuit that could provide more pressure for police accountability.
Black’s family has sued the officers involved in his death, the state medical examiner who had ruled the death accidental, the three towns that employed the officers (Centreville, Greensboro and Ridgely), and the two police chiefs involved in the case.
The suit alleges a wide range of violations. Recently, it survived a motion by defendants to dismiss the case and is slated to proceed.
• Miranda S. Spivack is a former reporter and editor for The Washington Post. She has written extensively about open government issues. Follow her on Twitter @mirandareporter and https://www.mirandaspivack.com.
This story was produced by the Maryland Delaware DC Press Association for “Sunshine Week.”