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Md. high court: MPIA requires judicial review of supervisor’s notes

A government agency supervisor’s personal notes about an employee may be disclosable to the worker under the Maryland Public Information Act following judicial review, Maryland’s top court ruled Tuesday.

The MPIA generally entitles state and county employees to their own official personnel records, pending review by a trial judge’s personal review, the Court of Appeals said. In addition, the workers have similar access to a supervisor’s notes that are kept not in the employees’ personnel file but in a private journal, the high court held.

The court’s decision was a victory for Bernadette Lamson, a longtime employee of the Montgomery County attorney’s office, who argued she is entitled under the MPIA to notes her supervisor, Silvia Kinch, kept in her personal moleskin journal and which might have formed the basis for a poor job evaluation.

These notes include a chronological record of Kinch’s meetings with clients and the attorneys she supervises, as well as make reference to Lamson’s responses to work assignments, according to papers filed with the high court.

Lower courts had held Lamson is not entitled to the supervisor’s personal journal, saying the notes are not part of the official public record. The county had argued disclosure would invade the privacy of bosses, who should be entitled to keep secret their personal notes about meetings with employees.

But the high court, in remanding the case to the circuit court judge for review, said disclosure under the MPIA is based on the substance of the document, not its form, and a judge must determine whether it is a public record subject to disclosure.

The judge can conduct this review via a private, or in camera, review of all the records; by reviewing an itemized and indexed compilation of the documents; or by reviewing submitted testimony regarding why the documents should not be disclosed, the court said, adding its preference for in camera review of a personal journal.

“(T)he mere physical location of a record is not necessarily dispositive of its characterization” under the MPIA, Judge Michele D. Hotten wrote for the high court. “It is equally possible that the notes contain entries that relate to (Lamson’s) employment and or the devaluation of her performance rating. In either instance, there is uncertainty regarding the nature of the records at issue and must be resolved by closely examining the notes at issue, as well as the exceptions (to disclosure) offered thereto.”

These exceptions could prove the county’s assertion the supervisor’s documents are protected under attorney-client privilege, an argument that was not considered by the Montgomery County Circuit Court when it summarily rejected Lamson’s request for the personal journal, the high court said.

The intermediate Court of Special Appeals had upheld the circuit court’s rejection of Lamson’s request, prompting her to seek review by the Court of Appeals.

Judge Shirley M. Watts, in a concurring opinion, said the circuit court judge must conduct an in camera review of the personal notes to determine if they are disclosable personnel records.

Lamson’s attorney, Timothy F. Maloney, hailed the Court of Appeals’ handling of “the important question of off-line government records” under the MPIA.

“The court looked at the substance of the information and not the location and that’s an important principle going forward,” said Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt. “Government supervisors will not be able to keep an off-line record keeping system to keep themselves shielded from the Maryland Public Information Act.”

Montgomery County’s attorney, Erek L. Barron, called the high court’s decision a tie – for now — between the employee’s request for the records and the local government’s desire to keep them confidential on behalf of its supervisory employee.

“This is one of those legal false starts,” said Barron, of Whiteford Taylor & Preston LLP in Bethesda. “We’ve got to go back to the starting gate and the lower court needs to do some further investigation of what these records are and hear from both sides.

“It’s a draw, so to speak,” he added, until the lower court does what the higher court has instructed.

The high court rendered its decision in Bernadette Fowler Lamson v. Montgomery County, Md., No. 67, September 2017.

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