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Advances in Administrative Law Volume XLIV • Number 3 May/June 2011 Advances in Administrative Law May 2011 MARYLAND BAR JOURNAL 1 Published bimonthly by the Volume XLIV • Number 3 May/June 2011 Maryland State Bar Association, Inc. The Maryland Bar Center AW A RD WINNING TOP Nat ION A L Stat E BA R MA G A ZINE 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 Features (800) 492-1964 Advances in Administrative Law Website: www.msba.org Executive Director – Paul V. Carlin Editor – Janet Stidman Eveleth Maryland Public Information Act: Maxims, Myths Assistant to the Editor – Jason Zeisloft and Misunderstandings 4 By Robert N. McDonald Design – Jason Quick Should Courts Defer the Least When it Matters the Most? 12 Advertising Sales – Network Publications By Austin Schlick and Michael Steffen Subscriptions: MSBA members receive Separation of Powers Redux–Receded Scope THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to of Judicial Review 18 publication. Others, $42 per year. By Joel A. Smith POSTMASTER: Send address change to THE MARYLAND BAR Judicial Review of Administrative Sanctions: JOURNAL, 520 W. Fayette St., Why Noland Should be Abandoned 24 Baltimore, MD 21201. By Arnold Rochvarg The Maryland Bar Journal welcomes articles on topics of interest to OAH’s Role in Foreclosure Mediation 28 Maryland attorneys. All manuscripts By Denise O. Shaffer must be original work, submitted for approval by the When Discretionary Agency Action Is Not So Discretionary 34 Special Committee on Editorial By Andrew H. Baida Advisory, and must conform to the Journal style guidelines, which are Dealing With Self-Represented Parties in Judicial available from the MSBA headquar- ters. The Special Committee reserves and Administrative Actions 38 the right to reject any manuscript By The Honorable Glenn T. Harrell, Jr. and Nicholas C. Stewart submitted for publication. Administrative Law: Rules to Results 44 Advertising: Advertising rates will be By Ralph S. Tyler and Karen Stakem Hornig furnished upon request. All advertis- ing is subject to approval by the Gubernatorial Executive Orders: Legislative or Editorial Advisory Board. Executive Power? 48 Editorial Advisory Board By The Honorable Robert A. Zarnoch Elizabeth M. Kameen, Chair James B. Astrachan PBRC Instills New Pro Bono Culture 54 Courtney Blair By Janet Stidman Eveleth Ann Norman Bosse Marcella A. Holland Louise A. Lock Departments Victoria Henry Pepper Mary Langdon Preis Ethics Docket MSBA Officers (2010-2011) Propriety of Using Generic Name of State Administrative Agency President - Thomas D. Murphy as Trade Name 58 President-Elect - Henry E. Dugan Jr. Practice Tips Secretary - Michael J. Baxter Treasurer - John P. Kudel The Unsettling Process of Settlement 60 Attorney Grievance Commission The Client Grievance 61 Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered. May 2011 MARYLAND BAR JOURNAL 3 Maryland InformationPublic Act: Maxims, Myths and Misunderstandings By Robert N. McDonald Those who have seen the movie Erin Brockovich may recall that its plot turns on a public records request. An attor- ney prosecuting a class action environmental suit against a California utility company is looking for information that will relate the utility’s activities to his clients’ illnesses. His assis- tant, Erin Brockovich, played by Julia Roberts, goes to an obscure water agency and requests access to certain public records. An eager young clerk, smitten by the charms of the requester, furnishes the records that turn out to be the key to the law suit’s success. 4 MARYLAND BAR JOURNAL May 2011 May 2011 MARYLAND BAR JOURNAL 5 In Maryland, no glamor is necessary to 2. As with all general rules, there a government record. The PIA thus access public records. As any attorney are exceptions. defers to other laws that prohibit dis- representing a state, county, or municipal There are many exceptions to the gen- closure of a particular record or par- agency can attest, the Maryland Public eral rule of disclosure – 43 specific ticular information. For example, the Information Act (“PIA”) provides any enumerated exceptions defined in the Juvenile Causes Act makes confidential member of the public with a broad right PIA with varying degrees of specific- many records relating to proceedings of access to agency records. The stat- ity and subject to various conditions involving children (Courts & Judicial ute, having now attained its 40th birth- – and several exceptions that simply Proceedings Article, §3-827, §3-8A-27). day, is codified in the Annotated Code incorporate privileges and confiden- The PIA is designed to respect that con- of Maryland, State Government Article tiality provisions already established fidentiality; such records would not be (“SG”), §10-611 et seq. When it was first in the common law, statute, or court available in response to a PIA request. enacted in 1970, it was drawn partly rule. In general, the exceptions appear Conversely, the sections of the PIA from the federal Freedom of Information designed to preserve legal privileges, that allow or mandate that an agency Act (“FOIA”) and partly from public safeguard personal and financial pri- withhold records from public access records statutes previously enacted in vacy, promote free competition, pro- each begin with the proviso “unless certain western states. Since then, the tect intellectual property, ensure the otherwise provided by law.” Thus, the Legislature has tweaked the PIA from integrity of investigations, and protect provisions of the PIA that might pre- time to time, though the basic structure public security. vent access to records bow to other of the statute has remained constant. Its Not surprisingly, exceptions protect laws that open those records to public provisions have been the subject of sev- the confidentiality of medical infor- inspection. For example, real property eral dozen appellate court decisions and mation, personal financial informa- assessment records that might other- Attorney General opinions. tion, personnel records of government wise be considered personal financial This article will state some basic employees, and privileged communi- information are open to public inspec- propositions about the PIA and sug- cations (e.g., executive privilege, attor- tion without charge (Tax-Property gest which are true (maxims), which ney-client privilege). Other exceptions Article, §2-211); certain police records are false (myths), and which are simply are less intuitively obvious or relate that might be covered by the investiga- misunderstandings of the statute. to narrower subjects. For example, tive records exception of the PIA are one exception concerns the location of available to criminal defendants under endangered species (SG §10-617(g)); the rules governing criminal discovery Maxims another protects photographic images (Maryland Rules 4-262, 4-263). 1. The general rule under the Public taken by traffic control signal monitor- Information Act is to disclose. ing systems (SG §10-616(o)). 4. It does not matter who you are or The PIA’s governing principle is that If an agency declines to provide why you want the records. “[a]ll persons are entitled to have access to a record, or to some informa- For the most part, the identity and access to information about the affairs tion in a record, it must identify the motive of the requester do not affect an of government and the official acts of exception that allows it to withhold agency’s response under the PIA. And public officials and employees.” SG that specific record or information. an agency cannot make disclosure of the §10-612(a). More concretely, “[e]xcept requester’s identity or motive a condi- as otherwise provided by law, a custo- 3. The PIA always defers to tion of responding to a PIA request. dian [of public records] shall permit a other law. There are a couple of minor qualifica- person ... to inspect any public record One of the exceptions to the PIA’s gen- tions to this maxim that can affect the at any reasonable time.” SG §10-613(a) eral rule of disclosure provides that “a content of the agency’s response. The (1). These sentiments are based on the custodian shall deny inspection of a PIA allows a person enhanced access to same insight that led Justice Brandeis public record ... if by law, [the record] records about himself or herself – in PIA to write in 1915 that “Sunlight is said is privileged or confidential” (SG §10- jargon, the “person in interest.” Thus, to be the best of disinfectants; electric 615(1)). This exception encompasses for certain records (e.g., medical records, light the most efficient policeman.” any other statute or common law rule student records, personnel and retire- that would preclude public access to ment records), the “person in interest” 6 MARYLAND BAR JOURNAL May 2011 ments for government agencies. Of course, an agency should not know- ingly destroy a record that is the sub- ject of a pending PIA request. 4. The PIA could not apply to a §501(c) (3) corporation because it would not be a government agency. The PIA applies to records of “units” and “instrumentalities” of State and local government (SG §10-611(g)). The appellate courts have not hesitated to hold that it applies to government instrumentalities that happen to be §501(c)(3) corporations. For example, in Baltimore Development Corp. v. Carmel Realty Associates, 395 Md. 299 (2006), the Court of Appeals held that the may have access when a member of the 2. A PIA request must be in writing. PIA applied to a nonprofit corporation general public would not. It is true that the statute appears to pre- formed to plan and implement devel- Also, the requester’s motive may be fer written requests, but it specifies no opment strategies in Baltimore City.
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