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Appeals court rules against Baltimore police’s PIA fee waiver denial

The Baltimore Police Department’s refusal to waive a $245,000 fee for public records related to officers’ use of force was arbitrary and capricious, Maryland’s Court of Special Appeals ruled this week, marking the second time in recent months that the appeals court has stepped in over a similar fee waiver dispute.

The ruling reverses a decision out of Baltimore City Circuit Court. The advocacy group Open Justice Baltimore brought the case after the city police department asked the nonprofit for $245,123 to release thousands of pages of public records related to police use of force incidents.

Open Justice Baltimore asked the department to waive its fees, arguing that the release of the records is in the public’s interest.

“BPD owes the community insight into its operations and accountability of its officers, as officers have caused disruption and harm throughout the city,” wrote the group’s lawyer, Matt Zernhelt, in court filings.

The department declined to waive the fees, and later argued in court that the organization’s public interest argument was too vague and that the documents would not contribute to the public’s understanding of police operations because the records would be heavily redacted.

A Baltimore circuit judge agreed with the department, but the Court of Special Appeals reversed and pointed to an opinion from December that dealt with similar issues raised by the activist legal group Baltimore Action Legal Team. BALT acted as counsel for Open Justice Baltimore in its lawsuit over police records.

The December opinion centered on a list of police officers whom the Baltimore City State’s Attorney’s Office considers to have credibility issues and thus could pose a problem if the officers need to testify in court. State’s Attorney Marilyn Mosby ultimately released an abbreviated list.

The decision also found that the State’s Attorney’s Office had been arbitrary and capricious in denying BALT’s request for a fee waiver, in part because it had not considered whether the requested records would shed light on a public controversy. BALT had also requested records related to any alleged criminal activity by police officers.

“We find this inquiry particularly germane in the context of a request seeking criminal investigatory records of city police officers, including those concerning use of force,” Judge Gregory Wells wrote in the December opinion. “Considering the well-documented public controversy surrounding use of force by city police officers, which was the motivation for BALT’s requests, at least some consideration should have been given to whether disclosure of these records would inform the public about this subject.”

The December decision was originally unreported but later moved to reported status. The Court of Special Appeals used the same reasoning to find that Baltimore police acted arbitrarily and capriciously in denying Open Justice Baltimore’s request for a fee waiver.

Zernhelt said the decision will further the purpose of Maryland’s Public Information Act.

The decision is especially relevant, he said, because of the recently passed Anton’s Law, which aimed to make police disciplinary records more accessible under the PIA. Some departments have responded to requests under the new law with high fee requests.

“Police departments are declaring that how they hold police officers accountable is not in the public interest to disclose, … challenging the community to come up with resources to litigate against them,” Zernhelt said.

In an emailed statement, Baltimore’s law department said, “We are aware of the result and will explore our appellate options, but the City remains deeply committed to compliance with the Maryland Public Information Act.”