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Police lawyer knew deal was subject to MPIA

Less than a month before The Daily Record’s Maryland Public Information Act request for documents related to the then-confidential Yakov Shapiro settlement was denied, the lawyer representing the Baltimore Police Department in the case explained to the attorney for the mistakenly arrested violin teacher that any eventual settlement would be subject to the MPIA.

“Additionally, because we are public agencies, we MUST comply with MPIA requests, subpoena requests, and legislative public inquiries about the settlement,” Neal M. Janey Jr., deputy chief legal counsel for the police department, wrote to Steven Kupferberg in a Feb. 24, 2010, e-mail.

The parties officially came to terms two days later, and the Baltimore Board of Estimates approved the $200,000 deal on March 10. The newspaper’s March 12 MPIA request was denied on March 19, citing the expungement of Mr. Shapiro’s criminal record and his right to privacy.

City Solicitor George Nilson said last week that Janey’s statement is “general, generic language” about the city’s obligations but did not prescribe specific action in the Shapiro case.

“The compliance may be you get nothing because none of the documents are disclosable,” Nilson said. “Of the response, maybe you get one document, you get 10 documents or you get 30 documents.

“It doesn’t address the question if, in a given situation, confronted with a specific request and directed to a particular person…it doesn’t tell you what if anything we might have to provide in that situation,” Nilson said.

Nilson’s deputy, David Ralph, who was supervising Janey in the settlement of the case, said Kupferberg seemed not to understand fully the city’s legal practices and obligations and that Janey was simply explaining how Baltimore customarily settled suits.

“He was making general legal statements as to what our practices have been,” Ralph said. “It wasn’t like he was responding to a known request that was there.

“I think Neal was trying to explain to him, ‘Look, this is what we do, this is what we are,’” Ralph continued. “It was not a legal analysis.”

Janey has not responded to several phone calls since mid-December and was not in the office on Friday.

The Feb. 24 e-mail was contained in documents Ralph sent to The Daily Record last week, almost two weeks after Nilson was asked to respond to documents disclosed by Kupferberg on Dec. 22. Kupferberg’s documents backed up his statement that it was the city’s idea to keep the settlement confidential.

Nilson and Ralph offered their documentary rebuttal to a Baltimore Sun reporter on Dec. 23.

Kupferberg has steadfastly maintained that the secrecy surrounding the resolution of the case was the city’s idea, and Nilson and Ralph have been equally adamant that the confidentiality provision in the settlement came from Kupferberg.

The documents don’t provide any final answer about who first proposed the idea of keeping the litigation quiet. They do show, however, that secrecy was an important factor to the city and that both sides negotiated the wording of what would become Section 8 — Non-Disparagement/Prohibition Against Public Statements.

“When they sent me the initial draft of the agreement, it has the paragraph that they wrote,” Kupferberg said Friday. “I didn’t have any part in that. None. Zero. We did have a part in suggesting alternative language because they said under no circumstances would they modify that paragraph.”

The original nondisparagement clause barred only “the releasing party” — Kupferberg’s client, Shapiro — from making statements. Kupferberg made a number of suggested changes to include all parties, or convert the paragraph into a standard confidentiality clause.

On Feb. 18, Janey, then Ralph, wrote to Kupferberg, explaining why Kupferberg’s counterproposal was unacceptable.

“When monies are paid on [the city and police department’s] behalf, that fact is subject to public inspection,” Janey wrote. “This is why our confidentiality agreements are drafted in the manner they are.”

He also said that this had been “explained at the settlement conference.”

In the Feb. 24 e-mail, Janey alludes to the special treatment of the Shapiro case by the city law department.

“Dave and I told you about the problems of Section 8 at the settlement conference,” he wrote. “We told you that the BOE process was public, which is why we didn’t think we could get authority from the Settlement Committee in the first place.”

Nilson said last week that he could not remember why The Daily Record’s MPIA request was denied so quickly.

“At some point in the spring, I looked at the request and I said I think we should be providing at least redacted information from the file,” Nilson said.

He was conducting further analysis of documents when “we went in a different direction,” he said.

In light of Kupferberg’s insistence that the confidentiality agreement was not his idea, the idea of disclosing Kupferberg’s name arose as a possible alternative. Nilson and Kupferberg eventually agreed that Kupferberg could disclose truthful information about the case to the media.

“The whole process with providing you redacted documentary information was overcome by the eventual solution,” Nilson said.