Baltimore County claims plaintiffs to a federal lawsuit alleging police and prosecutors improperly handle sexual assault allegations are misusing the Maryland Public Information Act by making records requests before discovery has started.
The lawsuit was filed in September and contends that the University of Maryland, Baltimore County and local law enforcement have a “systematic, institutionalized indifference to crimes of sexual violence, coupled with bias against women.”
The judge presiding over the case has not yet issued a scheduling order. Under a local rule in U.S. District Court in Maryland, the parties cannot engage in discovery — the disclosure of requested documents and information between the parties — until such an order is issued.
However, attorneys for the county claimed in a letter to the court Monday that the plaintiffs have filed around 60 “document production requests” related to the lawsuit “under the guise of the Maryland Public Information Act requests.”
Earlier Monday, the county sent a letter to advise U.S. District Judge Deborah K. Chasanow of a “discovery-related issue” that “requires the intervention of the Court.” When Chasanow asked for an explanation, the county explained that the plaintiffs were engaging in discovery through the Maryland Public Information Act, or MPIA.
“In sum, Defendants take exception to Plaintiffs’ end-around of the normal discovery process, and request an audience with the Court to discuss a resolution to the issue,” attorney Neil E. Duke wrote.
Plaintiffs’ attorney Rignal W. Baldwin V fired back a letter Tuesday that accused the county of “confus(ing) public records, available as a matter of right, with the private information only available through discovery.”
The county has sought to discuss the issue with the federal court, but the plaintiffs argue the MPIA has remedies if the government believes it has a reason to withhold records. Chasanow had not taken any action as of Thursday afternoon.
On Wednesday, Baldwin confirmed that the county initially responded to MPIA requests sent after the lawsuit was filed. However, he said that some of the responses were incomplete and that the county has stopped responding altogether.
One of the plaintiffs filed a lawsuit in Baltimore County Circuit Court on Monday accusing the county of failing to comply with the MPIA when she requested records from the Baltimore County Police Department “relating to its treatment of victims of sexual assault.”
The plaintiff, who filed a request in February 2018 for records relating to an October 2017 assault, alleges the county’s response was incomplete and many records were withheld.
“Through outside counsel, Defendants now accuse (the plaintiff) of engaging in unethical, premature discovery in a related lawsuit … because she seeks public records from a government entity under the terms set forth in the Maryland Code,” the MPIA lawsuit alleges. “Defendants now refuse to respond to any of (the plaintiff’s) requests, denying her rights enumerated in the MPIA.”
A spokesman for the county said Thursday that he could not comment on the issue because of the pending litigation.
“The County is committed to transparency as it relates to our obligation to be responsive to public requests for information,” spokesman T.J. Smith said in an emailed statement. “However, the plaintiffs have elected to pursue a federal lawsuit.”
Duke, a shareholder at Baker Donelson in Baltimore, did not immediately respond to a request for comment Thursday.
Attorneys and records requests
Attorneys are some of the most frequent users of the MPIA, according Lisa Kershner, the state’s public access ombudsman.
“Attorneys use the MPIA professionally for all kinds of reasons,” she said. “One purpose, I think that comes up, is they use it to do their due diligence before filing or in conjunction with filing.”
Kershner said she could not take a position on the dispute in the Baltimore County case.
Since Kershner’s position was established in March 2016, with the aim of assisting MPIA applicants and custodians in records disputes, 7% of requesters who contact her office are attorneys. Of more than 1,000 mediation requests in those three years, 21% of disputes were because of a lack of response and an additional 20% were over a partial or allegedly incomplete response.
The Court of Appeals has held that the MPIA “was not intended to be a device to enlarge the scope of discovery beyond that provided by the Maryland Rules or to delay ongoing litigation” in the context of a criminal defendant requesting police investigatory records.
The court has also ruled that “absent a statute to the contrary, the rules of discovery applicable to circuit court proceedings are not, generally, applicable in respect to MPIA proceedings.”
No provision in the act expressly precludes parties in civil litigation from making MPIA requests.