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Governor’s Affairs Not Private

The Washington Post is entitled to some of the phone and appointment records it requested from Gov. Parris N. Glendening, a divided Court of Appeals held yesterday, but the governor will get another chance to prove individual records are protected by executive privilege.

Maryland Gov. Parris N. Glendening claimed that his schedule and telephone records were exempt from disclosure under the state’s Public Information Act.


In a 4-3 decision, the court rejected Glendening’s blanket claim that his schedule and telephone records were exempt from disclosure under the state Public Information Act. That means instead of the newspaper having the burden of proving the records are not privileged when the case goes back to circuit court, the governor has the burden of proving they are.The court majority also held that the act applies to the governor and his staff, even though the similar federal Freedom of Information Act does not apply to the office of the president. The distinction, the court explained, is that the Maryland law applies to “public records,” while the federal law applies to “agency records.”“Unlike the Federal Act,” Judge John C. Eldridge wrote, “there is no statutory language or legislative history suggesting that any unit of the Maryland Government is exempt from the Public Information Act’s coverage.”In a vigorous dissent, Judge Dale R. Cathell said the separation of powers doctrine “does not permit the Legislature to create laws that can be used directly to require the Governor to make his nonpublic activities public … .”“With all due respect to the majority, the doctrine’s history in this state calls for a more rigid adherence than that afforded to the federal implication of separation of powers, not the lesser standard the majority adopts with its position in this case,” he wrote. “[T]he majority today relegates the doctrine to an unimportant requirement that the Legislature can ignore when it chooses.”Both sides claimed victory in the court’s decision, which sends the case back to the Anne Arundel County Circuit Court for further proceedings.“The majority of the court came down in favor of disclosure,” said Patrick J. Carome, a partner with Wilmer, Cutler & Pickering representing the Post. He focused on the court’s holdings that the act applied to the governor, and that he could not make a broad claim of executive privilege for the requested records.“The alternative to either of these holdings would be that the governor and his office would be utterly shielded from the public scrutiny that the Public Information Act assures,” he added.Michael E. Morrill, the governor’s communications director, said the court’s decision “provides some very clear guidelines for how we can continue to conduct the business of the office and at the same time still comply with the spirit of the Public Information Act.”He also praised the court for providing the governor “some very clear zones of privacy.”One of those zones is the governor’s mansion, or Government House. The Washington Post is not entitled to records of phone calls made from the official residence, the court held.“[T]he Governor and his family might not have the identical expectations of privacy while living there as one has in his or her privately owned home,” Eldridge wrote. “Nonetheless, we do not believe that the Governor and his family must relinquish all normal expectations of privacy in their home simply because, in accordance with constitutional and statutory provisions, their home and furnishings, including telephone service, are supplied by the state.”The governor also can redact from his schedule records of personal and family meetings or gatherings.Two reporters from The Washington Post initially sought two years of records, including the governor’s schedule and phone logs, as well as the phone logs of top advisers. After negotiations, the newspaper limited its request to six months of 1996.The Post filed suit in 1997, after receiving limited information from the governor’s office. Anne Arundel Circuit Judge Lawrence H. Rushworth denied both sides’ motions for summary judgment and reviewed the disputed documents himself.In October 1998 Rushworth ruled that Glendening failed to make a particularized showing of executive privilege and ordered him to turn over the records. That order was stayed pending the governor’s appeal.The state’s top court initially heard oral arguments in March 1999, but had not issued its decision before Judge Howard S. Chasanow retired and was replaced by Judge Glenn T. Harrell Jr. Earlier this year, the court asked the lawyers to reargue the case.According to Carome, the court’s clerk said the judges who had heard the arguments were deadlocked 3-3.Joining Eldridge and Harrell in the majority were Judges Alan M. Wilner and Lawrence F. Rodowsky. Judge Irma S. Raker filed a separate dissent.Chief Judge Robert M. Bell joined in Cathell’s dissent, which questioned how the court planned to enforce its decision if the governor decided not to comply. “If he declines, are we going to hold him in contempt≠” he asked.“[A] mandatory directive ordering a Governor to act in this particular way, I suggest, is a pig that will have difficulty trying to fly.”<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

Case: Office of the Governor, et al. v. Washington Post Co., CA No. 117, Sept. Term 1998. Reported. Opinion by Eldridge, J.; dissenting opinions by Cathell and Raker, JJ. Filed Sept. 12, 2000.Issue: Are the governor’s schedule and phone records exempt from disclosure under the Public Information Act by a blanket claim of executive privilege≠Holding: No. The records are not confidential advisory or deliberative communications. Nevertheless, the governor can make a particularized showing of privilege for each item he seeks to withhold.Counsel: Lawrence P. Fletcher-Hill and Carmen M. Shepard for appellants; Jonathan J. Frankel for appellee.RecordFax:# 0-0912-22 (91 pages)