The Baltimore Police Department last week defended its decision not to waive a $245,000 fee for police misconduct records requested by a community advocacy group, telling the Maryland Supreme Court that agencies have broad statutory discretion to conclude a fee is warranted despite strong public interest in the sought documents.
The Maryland Public Information Act authorizes an agency’s public records custodian to reject a fee-waiver request so long as the reason for the rejection was rational, in good faith and not arbitrary or capricious, said BPD’s attorney, Michael Redmond.
The records sought by Open Justice Baltimore, while in the public interest, were voluminous — and thus costly to reproduce — and already largely available due to the BPD’s consent decree with the U.S. Justice Department regarding past police misconduct, Redmond told the justices.
OJB’s attorney countered that the MPIA also calls for fees to be waived when public interest is high and the ability to pay is low.
Matthew Zernhelt said the public has no greater interest than being provided documents related to police department investigations of alleged misconduct.
“When you impose an enormous fee on a record, you are effectively denying (the public) that record,” said Matthew Zernhelt, of the Baltimore Action Legal Team. “It’s a de facto policy of denial.”
Zernhelt’s argument prevailed in the Maryland Appellate Court, which held that the public’s deep concern with allegations of police brutality essentially mandated that the fee be waived. BPD then appealed to the high court.
“We all agree that transparency, oversight and accountability in policing are all vital public goods and any project that intends to increase those things is meant to further the public interest,” Redmond told the justices.
But the law still empowers agency custodians to charge fees for requested documents at their discretion, said Redmond, of the Baltimore Law Department.
“It’s simply a very extraordinarily discretionary standard of review,” he added. “It’s really just whether there was a reasonable, rational basis for the agency’s determination.”
Justice Steven B. Gould asked whether it would be appropriate for the court to enumerate factors that custodians must consider in deciding whether to waive a fee rather than leave it to their broad discretion.
Redmond responded that the justices “could provide guidance” on what custodians should consider but the discretion remains with them.
“If you (judges) look at the record and say ‘it was reasonable for them just to consider (factors) A,B and C’ … then that (decision) needs to be affirmed,” Redmond told the justices. “If you say ‘how can anyone possibly look at the record here and ignore D, E and F,’ and that is absolutely irrational, then that would be reason to overturn it.”
Chief Justice Matthew J. Fader asked whether the court would have to defer to a custodian’s decision if his or her motive for refusing to waive a fee was to prevent disclosure of the requested documents.
Redmond responded that the custodian’s decision would have been in “bad faith” and should be “flat out” reversed.
In this case, however, “it was a reasonable, rational consideration,” Redmond said. “
“The determination was not done arbitrarily or capriciously,” he added. “It might not have been the same determination that anyone in this room might have made but that’s not the standard. The standard is was it rational, was it reasonable. I believe it was.”
But Zernhelt said the custodian’s denial of OJB’s request for a waiver, while not necessarily in bad faith, effectively prevented the disclosure of publicly important documents to the non-profit organization.
“We made it clear that we cannot pay such enormous fees,” Zernhelt said. “It becomes ironic at a point that the larger an officer’s misconduct record, because they have so many complaints against them, the more expensive it is for the community to review that officer.”
Gould asked Zernhelt whether a fee must be waived whenever a person or group requesting a document of public interest say they cannot afford the cost.
“What if Bill Gates were financially supporting your organization?” Gould said. “Would a waiver in your view still be required?”
In response, Zernhelt said a requestor’s ability to pay should be balanced against the public interest in disclosure, which is highest when the documents concern alleged police misconduct.
“The General Assembly did insert (in the MPIA) this fee-waiver provision for records that are innately in the public interest,” he added. “If this is not on the far end of the (public interest) spectrum, then I can’t imagine what that provision was inserted for.”
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 Appellate Court 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 high court.
The Supreme Court is expected to render its decision by Aug. 31 in the case, Baltimore Police Department et al. v. Open Justice Baltimore, No. 20 September Term 2022.