Montgomery County judge denies police union’s challenge to transparency law

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A Montgomery County judge rejected a police union’s efforts to block the release of an officer’s disciplinary records and deem some Maryland police-accountability reforms unconstitutional.

In a Friday opinion, Circuit Judge J. Bradford McCullough upheld Anton’s Law, a change to the Maryland Public Information Act that made most police disciplinary records disclosable.

The law, passed along with various other policing reforms in the state, has been litigated by transparency advocates and police unions since taking effect in 2021. Police agencies have attracted criticism after responding to records requests with high search fees and slow response times.

The law is named after Anton Black, a 19-year-old who died in 2018 after a struggle with police officers on the Eastern Shore.

‘Serious public policy issues’

Filed by the Fraternal Order of Police Lodge 35 and a member whose records had been requested, the lawsuit argued that disclosing records of “unfounded or unsubstantiated” allegations made against officers violates their constitutional rights.

McCullough found that the law does not violate officers’ rights to due process or equal protection, and that Montgomery County is permitted to produce the records requested by resident Alexa Renehan, who in 2010 filed a complaint against an officer and sought the disciplinary records after Anton’s Law took effect.

McCullough wrote that each side’s arguments on the merits presented “serious public policy issues,” but they fell “squarely within the purview of the elected branches of government, not the judiciary.”

“It is not for this Court to decide if Anton’s Law is good idea or bad idea,” McCullough wrote. “It is not for this Court to decide if the legislature acted wisely or foolishly in enacting that law.”

Union agreement ruled invalid

McCullough also struck down a memorandum of agreement between the union and the county, finding that the deal “flies in the face” of the state transparency law’s timing provisions.

Although the public records law requires records to be released “immediately or within a reasonable period that is needed to retrieve the public records,” the deal required the county to provide requested disciplinary records to the officer in question at least 10 business days before the records are released — and allowed the officer 10 days to file a “reverse MPIA action.”

The judge held that such actions don’t exist, and allowing such a procedure “would impede the public policy behind the MPIA.” The agreement “makes it impossible for the County to produce the requested record to the requesting party the record within ten business days of the request,” McCullough found.

The police union, which was represented by Anthony Conti and Meriam Mossad of Conti Fenn LLC, declined to comment. The union represents the rank-and-file officers of the Montgomery County Police Department and has a membership of roughly 1,500 active and retired law enforcement personnel.

The ACLU of Maryland said in a news release that McCullough’s decision means that a similar policy adopted by Baltimore County police “is also clearly unlawful and unenforceable.”

“Neither secret deals with police unions, police policy changes, nor meritless legal challenges can override the public’s right to know how law enforcement exercises its authority,” David Rocah, senior staff attorney at the Maryland branch of the ACLU, said in a Tuesday statement.

Attorneys from the ACLU represented the Maryland Coalition for Justice and Police Accountability, which intervened along with the Reporters Committee for Freedom of the Press and The Washington Post.

Separate ruling on Anton’s Law

McCullough’s decision came the same day the Appellate Court of Maryland partially affirmed a Worcester County judge’s ruling that Anton’s Law makes use-of-force reviews subject to disclosure.

In that case, which was brought by The Post, the appeals court found that although such records are no longer considered “personnel records,” the Ocean City Police Department records sought by the newspaper were still subject to a review for other redactions.

“We do not intend the holdings reached in this case to suggest that under Anton’s Law, the Post is granted unfettered access to [use-of-force] Reports and [use-of-force] Reviews,” Appellate Court Judge Andrea M. Leahy wrote.