Top Md. court sides with Prince George’s residents seeking more info on Whole Foods deal

Commercial leases voluntarily submitted to counties cannot be totally and automatically shielded from public view, Maryland’s top court has unanimously ruled in a case involving the Whole Foods in Prince George’s County.

Rather, judges can prevent only the public release of information that the submitting party does not “customarily” release, such as trade secrets and commercial and financial information of benefit to competitors, the Court of Appeals said Monday in siding with county residents seeking additional information about the upscale supermarket’s lease in Riverdale Park.

The high court said its decision strikes an appropriate balance among the public’s need for information, the landlord’s desire to protect proprietary figures and the counties’ goal of ensuring companies remain willing to provide information voluntarily.

The residents have sought the public disclosure as part of their effort to challenge the rezoning of 36 acres of land, at the request of developer Calvert Tract LLC, from single-family residential use to mixed use near the intersection of Baltimore Avenue and East-West Highway. Specifically, the residents said they were not seeking proprietary figures but rather non-confidential information, such as who signed the lease and for how many years it will run.

The residents – including their attorney, Jayson L. Amster – had lost in Prince George’s County Circuit Court and the intermediate Court of Special Appeals, which sided with the county and Calvert Tract’s arguments against disclosure.

But the Court of Appeals ruled against a blanket ban on disclosure, saying the circuit court must examine which parts of the lease must be disclosed either because they have already been made public or the information is customarily released by a commercial landlord.

FOIA parallels

The high court’s ruling marked its latest interpretation of the Maryland Public Information Act‘s scope.

In its decision, the court said the MPIA mirrors the federal Freedom of Information Act and then cited a U.S. appeals court’s ruling on FOIA’s applicability to corporate information voluntarily submitted to the government.

In Critical Mass Energy Project v. Nuclear Regulatory Commission, the U.S. Circuit Court of Appeals for the District of Columbia held that such information is “confidential” – and need not be disclosed – if it “would customarily not be released to the public by the person from whom it was obtained.”

The Court of Appeals said many other courts have adopted that rationale, as well as the Maryland attorney general’s office, which has required state agencies to comply with the Critical Mass standard since shortly after the decision was issued in 1992.

“Upon consideration of its widespread approval, we agree that the Critical Mass test properly balances the need to protect confidential information voluntarily provided to the government with the public interest in disclosure – under both the FOIA and the MPIA,” Judge Sally D. Adkins wrote for the court. “Accordingly, we adopt the Critical Mass test for determining what information is ‘confidential’ under the MPIA exemption. Thus, we hold that commercial information is ‘confidential’ – and therefore exempt from MPIA disclosure – if it ‘would customarily not be released to the public by the person from whom it was obtained.’”

‘Basic law’ unchanged

Amster, an Upper Marlboro solo practitioner who argued the residents’ appeal, said Wednesday that he was not surprised by the high court’s decision calling for disclosure of non-proprietary, customarily released information in voluntarily submitted documents.

“I don’t think this (ruling) is going to be earth-shattering,” Amster added. “The basic law has been a part of Maryland law for a long time. That emphatically didn’t change, and it couldn’t change. You can’t say that if you raise ‘confidential’ that’s the end of it.”

Prince George’s County spokesman Barry L. Hudson stated in an email Wednesday that “the county is pleased that Maryland’s highest court upheld its reliance on the Critical Mass test, and will be reviewing its options in light of the remaining guidance provided in the opinion.”

Calvert Tract’s appellate attorney, Matthew M. Bryant, declined to comment Wednesday on the high court’s decision. Bryant is senior counsel with Joseph, Greenwald & Laake P.A. in Greenbelt.

The Court of Appeals rendered its decision in Jayson Amster v. Rushern L. Baker, County Executive for Prince George’s County et al., No. 63 September Term 2016.