Baltimore’s former top lawyer supports inspector general in records dispute with mayor, but judge still deciding

In her legal battle with the mayor over records access, Baltimore Inspector General Isabel Mercedes Cumming has received the support of the city’s former top lawyer, but the judge assigned to the case is still weighing sides.

In an affidavit filed Friday, former City Solicitor Andre Davis — who, before his tenure in city government, was a federal appellate judge — described his enthusiasm for a strong and independent Office of the Inspector General as “boundless.”

He called the justifications that Mayor Brandon Scott‘s administration has made for ending Cumming’s “direct access” to city records “nonsensical.”

The affidavit came ahead of a Tuesday hearing at which the parties debated the city’s motion to dismiss and cross-motions for summary judgment. Cumming attended the hearing but did not speak and declined to comment to reporters afterward.

Baltimore City Circuit Judge Pamela White said she hoped to rule on the city’s motion to dismiss within 30 days but that a possible obligation in another jurisdiction might slow her down.

White said she was “obsessed … with the clear and unambiguous language of the [city] charter,” saying the document has a guarantee of independence for the OIG. In April, she said the Scott administration “crushed” Cumming’s ability to enforce subpoenas.

Cumming sued the Scott administration earlier this year over its decision to consider subpoenas by the watchdog office as equivalent to civilians’ records requests under the Maryland Public Information Act. The city’s information technology office also withdrew the OIG’s access to internal city data, a move Cumming said meant she couldn’t guarantee confidentiality to whistleblowers.

The city argues her office violated attorney-client privilege, work-product privilege and deliberative-process privilege. Renita Collins, an attorney for the city, said the OIG had previously been “rifling through” city records.

“Just because the rules make a job harder . . . doesn’t mean the rules do not apply,” Collins said. The office has “no legal right to carte blanche access.”

Cumming argues the office is a co-custodian of all city records and is bound by confidentiality rules when it publishes reports. She also says that if the judge does determine her requests are bound by the MPIA, the law department is obligated to pay for independent lawyers without conflicts of interest to litigate any objections over records requests.

“To be crystal clear, Plaintiffs do not seek unfettered and unrestricted access to City information,” lawyers for the OIG wrote in a court filing that accompanied the Davis affidavit.

“Rather, Plaintiffs seek to reinstate the status quo and obtain the same access that the OIG has had to perform its Charter-mandated functions—access which is thoroughly documented and was, until now, freely given.”

When Davis was hired as solicitor general in 2017, part of his mandate was to transform the Office of the Inspector General — which he said was then a “moribund, inactive entity” within the city law department — into a robust internal watchdog investigating waste, fraud and abuse in city government. In 2018, city residents voted to make the office independent.

In one example, Davis stated that its “direct access” was critical in uncovering a “virtual cesspool of corruption, fraud and malfeasance” in the office responsible for the city’s worker’s compensation program.

“The contention that the Maryland Public Information Act somehow impedes the City’s effort to enhance the work of the independent OIG is a novel and extraordinary assertion,” Davis stated.

“Had such a proposition been advanced during my time as City Solicitor, the [city law department] would have done absolutely everything within its authority to rebut such an assertion and confirm that direct access by the OIG is entirely consistent with disclosure requirements and mandatory exemptions and exceptions contained in the Maryland Public Information Act.”