MD court rules Calvert County sheriff arbitrarily denied fee waiver for ACLU’s records request

The Calvert County Sheriff’s Office arbitrarily denied a fee waiver for a records request made by the American Civil Liberties Union of Maryland, the Maryland Appellate Court held.

The fee for records from the Calvert County Sheriff Office documenting the use of body searches, strip searches and manual body cavity searches performed by officers over a four-year span totaled more than $12,000 for approximately 366 hours the sheriff estimated it would take to locate, review and produce the records.

In a reported opinion written by Judge Douglas R. M. Nazarian and filed last month, the Maryland Appellate Court largely upheld the Baltimore City Circuit Court’s finding that the Calvert County Sheriff’s Office violated the law by requiring exorbitant fees in connection with the ACLU’s records request.

The appellate court rejected the sheriff’s notion that disclosure of the requested records is not in the public interest.

“It is sheer nonsense to claim that there is no public interest in ascertaining whether law enforcement might be engaged in improper invasive search activity — or, for that matter, that it might not be,” the appeals court wrote.

Instead, the appellate court found that the records requested would contain some insight into police officers’ activities and actions.

“Here, the requested documents likewise ‘would surely contain some insight into the activities’ of the sheriff’s use of body searches, strip searches, and manual body cavity searches and ‘indicate whether a certain officer’s actions’ in performing such searches ‘were proper,’” the appellate court wrote.

Samantha Miller Kavanagh, counsel for the ACLU of Maryland, said this case makes clear that government officials “cannot arbitrarily dismiss” the ACLU and other organizations’ public interest role.

“The courts have clearly recognized that the fee demand by the Sheriff’s Office ignored the public interest that was inherent in the ACLU’s record request,” Kavanagh said in a statement. “The ACLU and other organizations play a vital role in ensuring access to information that allows citizens to hold government agencies, including law enforcement, accountable.”

A spokesperson for the Maryland Office of the Attorney General, who represented Sheriff Ricky Cox in the case, declined to comment.

In a phone call Tuesday, Kavanagh said that while government agencies have discretion to grant or deny fee waivers, courts will get involved if that discretion is abused.

“What this ruling does and what the appellate court made clear is that courts can and should reverse improper denials of requests for fee waivers,” Kavanagh said Tuesday. “We do expect that adherence to this court’s ruling will produce fewer arbitrary and capricious fee waiver denials, which will in turn make it easier for public interest organizations to get access to these public records and get those records with important information into the hands of the public.”

Zuckerman Spaeder LLC represented the ACLU.