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Judge denies Salisbury’s motion to dismiss public information lawsuit

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A Wicomico County judge will allow a Maryland Public Information Act lawsuit to go forward after denying Salisbury’s motion to dismiss, which claimed the city did not possess the requested records about a 2016 excessive force lawsuit settlement and any records would be privileged if it did.

Wicomico County Circuit Judge W. Newton Jackson III rejected the city’s argument that it never prepared or possessed documents about the settlement, sought by the ACLU of Maryland and the Real News Network, because the litigation was handled by Local Government Insurance Trust. LGIT is an agent of the city, Jackson ruled.

“Were this Court to accept Defendants’ argument, then any government entity could shield public records from the public’s sight by transacting through their insurer or attorney,” he wrote in a May 31 opinion.

ACLU of Maryland attorney Nick Steiner said the opinion’s tone echoes the incredulity the plaintiffs heard from Jackson at the May 24 hearing.

“Right off the bat, I think the judge was kind of skeptical of defense counsel’s arguments and went pretty much straight to the heart of it,” he said.

The plaintiffs  filed MPIA requests seeking documents related to the resolution of an excessive force lawsuit brought by four Salisbury University students. Steiner said it came to the ACLU’s attention that a confidential settlement had been reached and the city was not disclosing the amount.

“To us, it seems like that’s something they should disclose to the public — the amount of money they settled for — because it’s taxpayer money,” he said.

The MPIA requests asked for settlement agreement, correspondence between the parties and officials about terms, documents related to budgetary approval and other records. The city responded it had none of the documents requested.

The suit was filed in Baltimore City Circuit Court in June 2017, and the case was later transferred to Wicomico County at the defendants’ request.

“This strong ruling in Salisbury for government transparency in police misconduct settlements sends a clear and important message across Maryland that the public today is deeply concerned about police misconduct, and our government owes its citizens open transparency about its handling of  lawsuits and investigations regarding abuses of police power in our communities,” Deborah Jeon, ACLU legal director, said in a statement.

Jackson agreed with the plaintiffs that it was premature to determine whether any of the requested documents are privileged.

“(B)ald assertions that documents may or may not be exempt from disclosure due to a privilege held by the government entity are not sufficient bases for a grant of summary judgment,” he wrote.

The city also argued the plaintiffs in the underlying litigation were necessary parties because of their privacy interest in the confidential settlement. But Jackson said a private contract provision does not shield a potential public record.

“There exists no ‘general catchall power’ inherent in the MPIA to deny requests for public records based upon an ‘unwarranted invasion of the privacy of a person in interest,’” he wrote.

Ernest I. “Skip” Cornbrooks IV, a lawyer for the city, did not respond to a request for comment. Cornbrooks is a partner at Karpinski, Colaresi & Carp. P.A. in Baltimore.

The case is American Civil Liberties Union Foundation of Maryland et al. vs. City of Salisbury et al., C-22-CV-17-000440.

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