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Md. high court will weigh fee waiver denial in police records case

Maryland’s top court will consider whether the Baltimore Police Department must waive the fee it charges requestors of public records when the data sought relates to officers’ use of force.

The Court of Appeals last month agreed to hear BPD’s appeal of a lower court decision that the department wrongfully declined to waive a more than $245,000 fee for records sought by the advocacy group Open Justice Baltimore.

In its controversial ruling, the intermediate Court of Special Appeals said the public’s deep concern with allegations of police brutality essentially mandated that the fee be waived.

But BPD, in its successful request for high court review, said the Maryland Public Information Act gives the department’s public records custodian discretion regarding whether to waive the fee.

For example, the custodian may assess a fee to defray the department’s expense and time of sorting through the records, including the need to make permitted redactions to protect privacy and safeguard confidential investigations, BPD’s counsel stated.

However, the Court of Special Appeals’ unreported decision has created such “legal uncertainty” regarding whether a fee may be waived that it is “nearly impossible for both requestors and custodians to plan their budgets,” Michael Redmond wrote.

“Million-dollar swings in expenses are difficult for even a police department to absorb, especially when staffing shortages and institutional reform requirements place ever-increasing demands on the department’s resources,” added Redmond, director of the Baltimore Law Department’s appellate practice group.

“Moreover, the litigation of these disputes needlessly delays the production of the records that all parties agree the MPIA grants the public the right to access,” Redmond added in the petition for high court review. “Uncertainty over who pays expenses therefore hampers the very purpose of the MPIA. Thus, absolutely everyone would benefit from the Court of Appeals issuing its first opinion on the MPIA fee waiver provision in this case.”

OJB, in its response to BPD’s petition, urged the high court to reject the department’s “sky is falling argument” in support of review.

Millions of dollars are not at issue in the case, OJB stated, adding the Court of Special Appeals correctly determined that public interest in the records clearly called for a waiver of the fee.

The police department “is not so much distressed by costs, the proper fee waiver standard, or direction from the court, as much as BPD is fighting disclosure of misconduct records in any way it can,” wrote OJB’s attorney, Matthew Zernhelt of the Baltimore Action Legal Team.

“BPD casting a line for further delay and prevention of disclosure reflects BPD’s modus operandi,” Zernhelt added. “There is no ambiguity as to the MPIA, nor are there novel legal questions for this court to clarify around a custodian’s responsibilities regarding fee waivers in the public interest. The Court of Special Appeals’ application of the law was straightforward and based on prior case law.”

The Court of Appeals is scheduled to hear arguments in the case in January. The high court is expected to render its decision by Aug. 31 in Baltimore Police Department et al. v. Open Justice Baltimore, No. 20 September Term 2022.

The litigation arose when the BPD asked OJB for $245,123 to release thousands of pages of public records related to police use of force incidents.

OJB requested records of use-of-force investigations that BPD had closed between July 1, 2018, and Dec. 19, 2019; all administrative and civilian complaints closed between Jan. 1, 2019, and Dec. 19, 2019; and all internal investigations, as well as civilian and administrative complaints, that had been open for at least 12 months as of Jan. 10, 2020.

In February 2021, Baltimore City Circuit Judge John S. Nugent upheld the fee as a legitimate charge under the MPIA.

But the Court of Special Appeals in February 2022 said BPD acted arbitrarily and capriciously by declining to waive the fee without demonstrating that it had “meaningfully considered the way in which such records may have aided the public’s understanding of how (BPD) was addressing allegations of police misconduct.”

BPD then sought review by the Court of Appeals.