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Counties need not disclose private commercial leases, Md. court says

Judge Patrick L. Woodward wrote for the Court of Special Appeals that Davis “testified that, when he signed the affidavits of parentage, he believed that he was the biological father of the children." (FILE)

Judge Patrick L. Woodward wrote for the Court of Special Appeals that compelling counties to disclose leases would impair the government’s ability to get such records from private parties. (FILE)

Counties need not publicly disclose under the Maryland Public Information Act the contents of commercial leases that private parties voluntarily submit to them, Maryland’s second-highest court has ruled.

In its 3-0 decision, the Court of Special Appeals said the MPIA’s commercial-secrets exemption applies to the entire lease, because even judge-ordered redactions may inadvertently disclose propriety information to the landlord’s competitors or would-be tenants.

Compelling disclosure of the leases would also violate public policy as landlords — seeking to protect information such as ancillary fees and guarantees — would be less willing to submit the documents to county leaders, the court added in its reported decision released Aug. 30.

“The purpose of the confidential commercial information exemption, as applied to private records voluntarily submitted to the government, is to encourage individuals to provide certain kinds of confidential information to the government, and public disclosure of the lease in question would impair the government’s ability to get this necessary information in the future, because private developers would cease sharing their private leases with the county if doing so would subject the leases to disclosure, or the possibility of disclosure, under the MPIA,” Judge Patrick L. Woodward wrote for the court. “This chilling effect would contravene the legislature’s intent to encourage private parties to voluntarily share the information that the government does not have a mechanism to compel.”

The appellate court’s decision marked a second courtroom defeat for Prince George’s County resident Jayson Amster in his effort to secure disclosure of a redacted version of landlord Calvert Tract’s lease with Whole Foods for the store in Riverdale Park.

Amster, an attorney, has sought the document since April 2012 on behalf of himself and fellow nearby residents challenging the Calvert Tract-backed rezoning of 36 acres of land from single-family residential use to mixed use near the intersection of Baltimore Avenue and East-West Highway. Whole Foods is an anchor of the Riverdale Park Station.

Amster said he was seeking information about the lease, such as who signed it and for how many years it will run.

Prince George’s County Circuit Judge Leo E. Green Jr. had ruled against Amster in 2013, citing the commercial-secrets exemption. Green said the safest course was to bar disclosure of the entire lease, as judges not steeped in the nuances of commercial leases might fail to redact proprietary information.

The Court of Special Appeals agreed.

“In the instant case, Calvert Tract noted in its affidavit that it ‘does not customarily publicly disclose its commercial leases,’ that it ‘intends to pursue negotiations with other businesses to enter into leases at the property,’ and that disclosure of the Whole Foods lease ‘would place Calvert [Tract] at a disadvantage when negotiating future commercial leases for the property,’” Woodward wrote. “Therefore, if we were to rule that portions of the Whole Foods lease may be severable, and thus in camera review [by a judge] is required, it logically follows that Calvert Tract and other commercial developers would cease voluntarily providing their leases to the county to avoid any risk of disclosure.”

Amster, an Upper Marlboro solo practitioner, said Friday that he is reviewing the decision and has not decided whether to seek review by the Maryland Court of Appeals.

“The whole point of the MPIA is for transparency, to open government up,” he added. “To have a judge say that you can’t even see this document, I don’t think that’s good law.”

But Scott Peterson, spokesman for Prince George’s County Executive Rushern L Baker III, said the Court of Special Appeals struck a proper balance.

“We are very pleased with the court’s decision,” Peterson said in an email Friday. “The county supports open government and believes the public is entitled to information regarding its activities. The county also supports the protection of private information shared with the county by residents, individuals and businesses who interact with the county.”

Judges Andrea M. Leahy and Michael W. Reed joined Woodward’s opinion in Jayson Amster v. Rushern L. Baker, No. 1801 September Term 2013.

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