Citing a history of violence against abortion providers, Maryland’s top court on Monday unanimously upheld the state’s refusal to disclose the names of administrators, owners and medical directors who have applied for licenses to open surgical facilities that perform abortions.
Though it favors disclosure, the Maryland Public Information Act permits state agencies to shield information that would “cause substantial injury to the public interest” if disclosed, the Court of Appeals held.
“Because of the history nationally of harassment and violence associated with the provision of abortion services, there is a palpable basis for concern that releasing the redacted information would jeopardize medical professionals from practicing within this particular field, which would deter ultimately access to women who seek an abortion in Maryland,” Judge Glenn T. Harrell Jr. wrote for the court. “The risk of violence is not speculative and is based on the ample evidence presented. The threshold for a denial under [the MPIA] was crossed.”
The high court’s decision was a defeat for Andrew Glenn, who said he made the MPIA request for the names to protect women from abortion-facility operators with checkered safety records in other states.
The Court of Appeals’ ruling upheld the Maryland Department of Health and Mental Hygiene’s decision to redact – in the interest of public safety — the names before providing Glenn with copies of the applications.
The MPIA’s disclosure exception “does not demand absolute certainty that the public interest would be harmed by disclosure, only that the disclosure of the information ‘would cause substantial injury to the public interest,’” wrote Harrell, a retired judge specially assigned to hear the case.
“Here the threat does not create merely a greater risk because the threat to the public interest is more than speculative,” Harrell added. “This history of violence associated with the provision of abortion services is undeniable.”
In its decision, the Court of Appeals said women seeking abortions in Maryland are adequately protected because they have access to the list of doctors licensed to perform the procedure as well as their accreditations, records and disciplinary history.
The court also cited National Abortion Federation data showing that eight abortion providers were murdered and another 17 attempted murders occurred nationwide between 1977 and 2011. Hundreds of incidents of harassment, such as stalking, hate mail and harassing phone calls of abortion providers, also occurred during those years, according to NAF, an association of abortion providers.
The Maryland attorney general’s office, which represented the state health agency, hailed the ruling.
“As the court said in its opinion, Maryland’s public information laws strongly lean toward disclosure, and denials should be rare and exceptional,” David Nitkin, a spokesman for the office, stated in an email. “The need to protect health care providers from danger, and to make sure that women have meaningful access to health services, made this case an exceptional one, as the court has found.”
But Erik M. Zimmerman, Glenn’s lawyer, said the court’s decision “will prevent the public from being able to effectively monitor whether the government is doing a good job ensuring that Maryland’s surgical abortion facilities are operated in accordance with legal, health, and safety requirements.”
Zimmerman, senior litigation counsel at the American Center for Law & Justice, which opposes abortion rights, said the health department’s decision was “based on speculative fear” and that the Court of Appeals’ decision could lead to countless requests for public information being denied.
“Within Maryland … the public is now left to blindly hope that the government’s mantra of ‘trust us, we are doing a good job’ will not ring hollow,” Zimmerman said.
Rare but justified
Judge Robert N. McDonald, in a concurring opinion, called it “an extraordinary thing for a state agency to withhold information related to the licensing of a business entity – in particular, the identities of those who operate it – in response to a PIA request.” The redactions, however, were justified due to the unchallenged concerns about physician safety and the limited scope of the redactions, McDonald wrote.
“While the court order that allows DHMH to continue to withhold the information from this requester does not have an end date, it is by its nature peculiar to this time and circumstance,” McDonald wrote. “The justification may dissipate with time and with new facts. It is not a precedent that necessarily forecloses forever the disclosure of such information.”
Glenn submitted his MPIA request for the applications in March 2013, eight months after DHMH adopted regulations requiring administrators, owners and medical directors to apply for and receive a license before operating a surgical abortion facility in the state.
On July 3, 2013, the agency sent Glenn copies of the applications, but with the names redacted, citing the “public interest” provision.
As required by the MPIA, DHMH then filed a petition within 10 business days asking the circuit court to authorize the agency’s continued redaction of the names.
Baltimore City Circuit Judge Emanuel Brown granted the petition on May 8, 2014. The Court of Special Appeals upheld Brown’s decision in an unreported opinion in April, prompting Glenn to seek review by the Court of Appeals.
The case is Andrew Glenn v. Maryland Department of Health and Mental Hygiene, No. 48, September Term 2015.