Maryland public defender, ACLU supporting lawsuit over public records fees for police files

A lawsuit challenging “exorbitant” fees for police misconduct files requested under Maryland’s public records law has drawn support from a variety of groups, including the Office of the Public Defender, ACLU of Maryland and news organizations.

In amicus briefs filed this month, the groups urged the newly renamed Supreme Court of Maryland to expand the use of fee waivers in response to Public Information Act requests that serve the public interest.

The advocacy group Open Justice Baltimore originally brought the lawsuit after the Baltimore Police Department asked for more than $200,000 to release thousands of pages of public records related to officers’ use of force.

The Appellate Court of Maryland ruled earlier this year that the department’s denial of a fee waiver request was arbitrary and capricious. Now the case is before the Supreme Court of Maryland.

The amicus briefs show a growing frustration with the large records fees that agencies are charging for police misconduct records, which became available to the public with the 2021 passage of Anton’s Law.

Deborah Katz Levi, the director of special litigation for the Office of Public Defender, wrote in one of the briefs that OPD has made dozens of MPIA requests for police misconduct files but has received almost none in response and has been asked to pay more than $1.7 million for the records.

“Marylanders simply will not see production of the records that are now considered public when their production to the public, or a government agency, comes with a price tag in excess of one million dollars,” Levi wrote.

The ACLU of Maryland and other public interest groups also filed a brief arguing that Maryland agencies increasingly require fees from PIA requesters and do so far more often than the federal government does in response to Freedom of Information Act requests.

Maryland’s public records law was originally intended to require fees only in cases where the disclosure would primarily benefit the requester’s commercial interests, such as when private companies requested financial information about their competitors.

“The core purpose of the PIA is severely undermined when agencies use exorbitant fees — fees that many organizations cannot afford, and even if technically affordable, fees that require redirecting funds from other mission-furthering purposes,” wrote the lawyer for the public interest groups, Adam B. Abelson of Zuckerman Spaeder LLP.

“Based on amici’s experience, a shift has occurred in recent years, with local governments and law enforcement agencies, like (the Baltimore Police Department), granting fee waivers even less frequently—and the fees imposed by such agencies can be especially high.”

News groups, including the Reporters Committee for Freedom of the Press, National Press Club and Society of Professional Journalists, also asked the Supreme Court of Maryland to uphold the lower court’s ruling.

“In a period when newsrooms are facing increasing financial constraints, news media organizations — and particularly small, local news organizations — may be unable to pay six- or seven-figure fees to obtain access to public records, or to pursue litigation to challenge arbitrary and capricious fee-waiver denials,” the groups wrote.

Matthew Zernhelt, the legal director of the activist legal group Baltimore Action Legal Team, which filed the MPIA requests at the center of Open Justice Baltimore’s lawsuit, said that the “varied views taken on amici show the widespread public interest argument and widespread impact of BPD’s conduct.”