In this declaratory judgment action,
After a hearing on the parties' cross-motions for summary judgment, the Circuit Court for Montgomery County ordered the disclosure of records of the internal investigation, but not information "of a personal nature." Both parties appealed to the Court of Special Appeals, but, before the appeal could be decided by the intermediate appellate court, we granted a Petition for Writ of Certiorari filed by Sergeant Shropshire and Captain Parker-Loan,
We shall hold that records of an internal investigation pertaining to the alleged violation of administrative rules are "personnel records" pursuant to Section 10-616(i) of the State Government Article
Background and Procedural History
In November 2008, Sergeant Shropshire and Captain Parker-Loan of the Montgomery County Police Department responded to an automobile accident involving Montgomery County Assistant Fire Chief Gregory J. DeHaven. A complaint subsequently was filed questioning the police officers' conduct during the accident investigation, in which it was alleged that both had violated various administrative rules.
At the conclusion of the investigation on May 26, 2009, the Internal Affairs Division (IAD) of the County's police department determined that Sergeant Shropshire and Captain Parker-Loan had committed "no administrative violations":
Memorandum from Captain David Falcinelli, Director, Internal Affairs Division, to Sergeant Edward Shropshire (May 26, 2009); Memorandum from Captain David Falcinelli, Director, Internal Affairs Division,
Even before the close of the internal affairs investigation, on January 9, 2009, the Montgomery County Inspector General initiated an investigation into the handling of the accident "to determine whether [the Department's] methods to investigate Gregory J. DeHaven's vehicle accident on November 30, 2008 and any improper actions on the part of those involved in the accident are consistent with generally accepted investigative standards to ensure legal, fiscal, and ethical accountability in Montgomery County government organizations." The Inspector General submitted a request to the Chief Administrative Officer of the Offices of the County Executive for numerous records, including:
Before the records were disclosed, Sergeant Shropshire and Captain Parker-Loan filed a complaint in the Circuit Court seeking a declaration prohibiting the custodian of records from releasing the internal investigation records to the Inspector General. The officers alleged that the records were exempt from disclosure, because they were "personnel records" or, alternatively, were "confidential under State law," as follows:
In the second count of the complaint, Sergeant Shropshire and Captain Parker-Loan also sought a writ of mandamus to prohibit the Inspector General from accessing the internal affairs records.
Thereafter, Montgomery County filed a motion for summary judgment, asserting that the internal affairs investigation records were not "personnel records," but rather were "investigatory records," because no evidence of wrongdoing was found by either officer, such that "no documentation ha[d] been placed in [the officers'] personnel file[s] about the investigation." The County further argued that because the Inspector General is charged with preventing and detecting "fraud, waste and abuse in government activities," disclosure of the records was mandated by County law.
Sergeant Shropshire and Captain Parker-Loan responded and also filed a motion for summary judgment, asserting that the internal affairs records in the present case constitute "personnel records" pursuant to Section 10-616(i) of the State Government Article and are, therefore, protected from disclosure. In the alternative, the officers contended that the records were protected from disclosure by Section 10-615(1) of the State Government Article, prohibiting disclosure of those records that are "confidential" by virtue of State law, because "police internal affairs investigative records are confidential under LEOBR."
After a hearing on the parties' cross-motions for summary judgment, the Circuit Court judge delivered an oral opinion, granting the Inspector General access to the disputed internal affairs investigation records, as follows:
The Circuit Court entered an order granting the County's motion for summary judgment and stating that the Inspector General was permitted to access the internal affairs records, with the exception of "information of a personal nature" unless "directly relevant to the underlying investigation":
The County appealed to the Court of Special Appeals, asserting that the records, in their entirety, should be disclosed to the Inspector General, and the officers also appealed, arguing that the internal affairs investigation records were prohibited from disclosure as "personnel records," or alternatively, as "confidential" by law pursuant to the Law Enforcement Officers' Bill of Rights. This Court issued a writ of certiorari at this juncture, before the intermediate appellate court acted.
Montgomery County Inspector General
The Office of the Montgomery County Inspector General is a relatively new institution, created in 1997,
The Inspector General is appointed by the County Council for a four year term and has powers granted by ordinance, including the power to "conduct investigations" and "develop recommendations," as follows:
Montgomery County Code, Section 2-151(h). Moreover, Section 2-151(l) provides that each "department or office in County government" is required to provide any information concerning its operations to the County Inspector General, although the Inspector General "must comply with any restrictions on public disclosure of the document or information that are required by federal or state law":
Internal Police Investigations
Internal investigations of law enforcement officers are governed by Sections 3-101 et seq. of the Public Safety Article, Maryland Code (2003), known as the Law Enforcement Officers' Bill of Rights (LEOBR).
Montgomery County Police Department Function Code 301, "Disciplinary Process for LEOBR—Covered Sworn Officers," provides guidelines for the disciplinary process.
An internal investigation is initiated by a "complaint" or "allegation of misconduct made against an employee of the department." The Director of the Internal Affairs Division reviews the complaint and determines whether it merits further investigation. If it does, the Director then assigns the complaint to an investigator, typically a commanding officer, tasked with gathering "all available documentary evidence" and compiling an "Internal Investigative Report," which contains the allegations, a written report of any information uncovered by the investigation, and a list of all those contacted or interviewed.
Maryland Public Information Act Request
The Maryland Public Information Act, enacted by Chapter 698 of the Maryland Laws of 1970, embodies the policy, as a general rule, that "[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees." Section 10-612(a); see A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983). Significant mandatory exemptions exist, nevertheless, in Section 10-615 and Section 10-616, among others,
See Police Patrol Security Systems, Inc. v. Prince George's County, 378 Md. 702, 710-13, 838 A.2d 1191, 1196-97 (2003); Caffrey v. Department of Liquor Control, 370 Md. 272, 303-04, 805 A.2d 268, 286-87 (2002); Blythe v. State, 161 Md.App. 492, 516-517, 870 A.2d 1246, 1259-60 (2005).
Similarly, Section 10-616 of the State Government Article governs "required denials" of "specific records," including "personnel records," as follows:
See University System v. Baltimore Sun, 381 Md. 79, 85-99, 847 A.2d 427, 432-440 (2004); Baltimore Police v. State, 158 Md.App. 274, 282, 857 A.2d 148, 153 (2004). No definition of "personnel records" exists in the statute. Kirwan v. The Diamondback, 352 Md. 74, 82, 721 A.2d 196, 200 (1998).
Section 10-618 of the State Government Article, in contrast, gives the custodian of records discretion to deny disclosure of requested information, most significantly,
The essential difference between the mandatory and discretionary provisions was succinctly stated by Judge John C. Eldridge, writing for this Court in Attorney General v. Gallagher, 359 Md. 341, 353-54, 753 A.2d 1036, 1043 (2000):
The "Rubik's Cube"
The County argues that the internal affairs records constitute "investigative" records subject to discretionary disclosure pursuant to Section 10-618(f), because the investigation "yielded no evidence that the officers were involved in any wrongdoing, so no disciplinary action ensued." Sergeant Shropshire and Captain Parker-Loan counter that the internal affairs records are "personnel records" pursuant to Section 10-616(i), no matter what, because an investigation of alleged administrative rule violations "necessarily entails the employer's narrowly focused assessment of the employee's
There is no statutory definition of "personnel records" in the Maryland Public Information Act. Kirwan v. The Diamondback, 352 Md. 74, 721 A.2d 196 (1998), was our first foray to consider the contours of the phrase "personnel records" pursuant to Section 10-616(i) of the State Government Article. We recognized that the language of subsection (i) "discloses what type of documents the Legislature considered to be personnel records," and determined that personnel records were those relating to hiring, discipline, promotion, dismissal, or any matter involving an employee's status. In that case, a collegiate newspaper had requested documents from the University of Maryland relating to campus parking violations committed by members of the men's basketball team, as well as the team's head coach. We concluded that the University had erroneously denied the requests on the basis of the "personnel records" exception, asserting that parking tickets received by the coach were nondisclosable "personnel records." In so doing, we reasoned that tickets issued by campus police did not relate to the coach's hiring, discipline, promotion, dismissal, or any matter involving his status as an employee, and, therefore, did not fit within the commonly understood meaning of the term "personnel records." Id. at 83, 721 A.2d at 200.
Subsequently, in Governor v. Washington Post, 360 Md. 520, 759 A.2d 249 (2000), we reinforced the tenets of Kirwan when we emphasized that scheduling and telephone records were not "personnel records," because they did not relate to an employee's "hiring, discipline, promotion, dismissal, or any matter involving his status as an employee." Id. at 547, 759 A.2d at 264. In that case, the Washington Post had requested telephone and scheduling records from the Office of the Governor. We determined that the records did not fall within the purview of "personnel records," because, for instance, the record of telephone numbers called by the Governor or members of his staff about possible future appointments did not relate to an employee's hiring, discipline, or status:
Id. at 548, 759 A.2d at 264, quoting Kirwan, 352 Md. at 83, 721 A.2d at 200.
Id. at 95, 617 A.2d at 1048. In so doing, we noted that "[m]istaken or even deliberately false reports and accusations are made against members of the department," and that, "[i]n some instances, the most conscientious and hardworking members will be the subject of such reports." Id. at 84, 617 A.2d at 1043. We further emphasized the significant public interest in preserving the confidentiality of internal police investigations both in promoting cooperation by civilian witnesses and police officers.
In the present case, the Internal Affairs Division inquiry explored whether Sergeant Shropshire and Captain Parker-Loan had committed administrative rule violations in connection with the accident investigation involving Assistant Fire Chief Gregory J. DeHaven. Specifically, the internal affairs investigation examined "[a]llegations of administrative misconduct. . . that, if true, would or could result in disciplinary action." As we emphasized in Kirwan and its progeny, because the internal affairs records involving Sergeant Shropshire and Captain Parker-Loan related to employee discipline, the records are indeed "personnel records" exempt from disclosure pursuant to Section 10-616(i) of the State Government Article.
Moreover, as we recognized in Maryland Committee, where, as here, an investigation clears the officers of wrongdoing, there is a significant public interest in maintaining confidentiality, both in fairness to the investigated officers and cooperating witnesses. This policy is embodied in Section 3-104(n) of the Public Safety Article, which states that an investigated officer must "execute a confidentiality agreement" before obtaining a copy of his or her investigatory file at the close of an investigation. As evidenced by the deposition testimony of Internal Affairs Division Chief, Captain David Falcinelli, attached to Sergeant Shropshire and Captain Parker-Loan's motion for summary judgment, "even the best officers could be subject to false or baseless complaints," so that an officer's professional life and reputation
The County asserts that the internal affairs records are, nevertheless, disclosable, referring us to Maryland State Police v. NAACP Branches, 190 Md.App. 359, 988 A.2d 1075 (2010), cert. granted Maryland State Police v. NAACP Branches, 415 Md. 38, 997 A.2d 789 (2010), which also was relied upon by the Circuit Court in the present case, in which the Court of Special Appeals considered whether documents relating to allegations of illegal racial profiling were "personnel records" pursuant to the Maryland Public Information Act. In that case, the NAACP and the Maryland State Police ("MSP") had entered into a consent decree in federal court in 2003, in order to settle litigation between the parties that obligated the MSP to prevent any incidents of racial profiling by its officers. In 2007, the NAACP became suspicious that the MSP was not fulfilling its obligations under the consent decree and filed a request with MSP for "documents obtained or created in connection with any complaint of racial profiling," pursuant to the Maryland Public Information Act. The MSP denied the request on the ground that the documents were "personnel records of an individual" pursuant to Section 10-616(i) of the State Government Article.
The Court of Special Appeals in NAACP Branches determined that the documents were disclosable, because they were not "personnel records;" the records were not indexed by the name of the employee or by the employee's identification number, but rather were stored in a central location, suggesting that the records were significant in the aggregate, as providing statistical information, rather than pertaining to the hiring, discipline, promotion, dismissal, or any other employee matter relative to particular employees. Id. at 369, 988 A.2d at 1080-81.
The present case is distinguishable, because the internal affairs records specifically reference the acts taken by Sergeant Shropshire and Captain Parker-Loan during the investigation of a discrete motor vehicle accident and the unsustained allegations against them, rather than statistics compiled regarding the acts of a group of officers without identification of their personal information. Records of alleged systemic racial profiling by a police department as a whole clearly are differentiated from records investigating alleged administrative rule violations by identified police officers in connection with a specific incident.
Finally, the County's reference to Blades v. Woods, 107 Md.App. 178, 667 A.2d 917 (1995), in which a police officer, who was disciplined for "sexual misconduct," filed a Section 1983 claim alleging that he was a victim of race discrimination and requesting answers to interrogatories relating to all departmental investigations involving sexual misconduct, is misplaced because the Maryland Public Information Act was not implicated in that case.
In sum, the internal affairs records involving alleged administrative rule violations by Sergeant Shropshire and Captain Parker-Loan are "personnel records" pursuant to Section 10-616(i) of the State Government Article, and are, therefore, mandatorily exempt from disclosure by the custodian of records. We shall direct that the case be remanded to the Circuit Court for entry of an appropriate declaratory judgment to that effect, in conformance with this Opinion.
ADKINS and BARBERA, JJ., dissent.
ADKINS, J., dissenting.
In crafting the Maryland Public Information Act ("MPIA"), the General Assembly sought to promote the disclosure of public records. See Kirwan v. Diamondback, 352 Md. 74, 84, 721 A.2d 196, 200 (1998) ("[T]he policy of the Public Information Act is to allow access to public records."). This objective is memorialized in the statute itself, MPIA § 10-612(a) ("All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees."), and reiterated in its legislative history, House Constitutional and Administrative Law Committee 1976 REPORT TO THE GENERAL ASSEMBLY OF MARYLAND at 111 ("By amending the law in this manner, it makes clear that in construing even the withholding section the law should be viewed in a manner which would permit disclosure."). Accordingly, we have repeatedly held that "the statute should be interpreted to favor disclosure." Kirwan, 352 Md. at 84, 721 A.2d at 200. Here, however, the majority glosses over this policy in order to rush to a conclusion that would undermine it.
This case presents us with a tug of war, between the police and the public, over the boundaries of "investigative" and "personnel" records. The playing field is not level, however, as the burden to show that an exemption exists rests squarely on the shoulders of the party seeking to prevent disclosure, in this case, the police officers. Cf. Cranford v. Montgomery County, 300 Md. 759, 780, 481 A.2d 221, 231-32 (1984) (holding that the presentation of evidence at trial to support the denial of petitioner's MPIA request was "simply too general and conclusory, standing alone, to meet the [custodian's] burden of proof"); Fioretti v. Maryland State Bd. of Dental Exam'rs, 351 Md. 66, 87, 716 A.2d 258, 268-69 (1998) (custodian was "required to show that the documents it [sought] to withhold [were] investigatory files compiled for law enforcement purposes, [and] that disclosure of the records would have prejudiced its investigation").
The MPIA sheds some light onto the types of documents that are "personnel records." Although the MPIA does not
I first observe that the type of records developed during an investigation, like the records at issue in this case, are a far cry from the three examples enumerated in the statute. This is so even if, as the majority asserts, that investigation concerns a discrete event and involves only a few, identifiable employees. Indeed, the Kirwan Court reasoned that, in light of the MPIA's policy favoring disclosure, it did "not believe that the General Assembly intended that any record identifying an employee would be exempt from disclosure as a personnel record. Instead, the General Assembly likely intended that the term `personnel records' retain its common sense meaning." Kirwan, 352 Md. at 84, 721 A.2d at 200.
Here, the Inspector General was attempting to determine whether both the accident and internal affairs investigations were consistent with generally accepted investigative standards. Thus the purpose of the request went to investigation technique and not to evaluating the performance of the individual officers. We should not, as I submit the majority does, extend the term "personnel records" to include all records relating to an officer's actions in the course of his duty. Not only would this holding impair the Inspector General in performing its oversight role, but would also shield the police, who are public officers, from public scrutiny, an outcome completely at odds with the spirit of the MPIA.
This is not the first time Maryland courts have distinguished "investigation records" and "personnel records" with regard to investigations of potential police misconduct. In Maryland Dep't of State Police v. Maryland State Conference of NAACP Branches, 190 Md.App. 359, 988 A.2d 1075 (2010), the Court of Special Appeals held that internal affairs files relating to investigations into complaints of illegal racial profiling were investigative records and not personnel records. The Court began by emphasizing the "broad remedial purpose" of the MPIA, which is to ensure "that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government." Id. at 367, 988 A.2d at 1079 (quoting A.S. Abell Publg. Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983)). The Court then applied this reasoning to the records of racial profiling complaints, concluding
NAACP Branches, 190 Md.App. at 368, 988 A.2d at 1080 (emphasis added) (citations omitted).
Here, the officers were on duty and engaged in public service when they investigated the automobile accident. The internal affairs staff were also on duty and engaged in public service when they investigated whether the officers' investigation violated any administrative rules. Undeniably, the public has an interest in protecting against abuse, bias, and conspiracy by the very people it has hired for protection. Therefore, like the records in NAACP Branches, "the files at issue concern public actions by agents of the State concerning affairs of government, which are exactly the types of material the Act was designed to allow the public to see." 190 Md.App. at 368, 988 A.2d at 1080.
In NAACP Branches the Court also reasoned that, because the records so clearly fell within the "records of investigations" exemption under the MPIA, the General Assembly could not have intended that those same records would also be subject to the more general "personnel records" exemption:
190 Md.App. at 370-71, 988 A.2d at 1081. This logic holds true for the records here. The requested documents concern an internal affairs investigation, meaning that they are, quite plainly, "records of investigations conducted by . . . a police department." Accordingly, they fall under the permissible denial section of the MPIA.
The Majority attempts to distinguish this case on the grounds that the racial profiling records at issue in NAACP Branches did not contain personal information on the individual officer and were stored in a central location:
Maj. Op. at 382, 23 A.3d at 217. It is true that, in NAACP Branches, the records "were not indexed by the name of the employee or by the employee's identification number[,]" but instead were "kept in one filing cabinet located in the MSP's Internal Affairs Office." 190 Md.App. at 369, 988 A.2d at 1080. Yet, as the County argues, that also seems to be the case here:
More importantly, as the majority concedes, the internal affairs records pertain to "the investigation of a discrete motor vehicle accident[.]" (Emphasis added). The fact that only a few officers were involved in the underlying investigation, making them easily identifiable, does not transform the investigation records into personnel records. Indeed, in our electronic age, a simple word search can yield all documents pertaining to a particular officer. Under the majority's logic, this keystroke would transform those records into personnel records, regardless of whether a more appropriate label exists. The Kirwan Court recognized this as an absurd result, and it concluded that the General Assembly did not intend that "any record identifying an employee would be exempt from disclosure as a personnel record." Kirwan, 352 Md. at 84, 721 A.2d at 200. For these reasons, I conclude that the records here are not personnel records.
Ironically, my belief that internal review records are records of investigation is shared by the officers' comrades in arms. In Mayor and City Council of Baltimore v. Md. Committee Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993), it was the police department that characterized such records as falling under the "investigation" exemption of the PIA. Just like the documents here, the records at issue in that case were generated in the course of an investigation conducted by the Internal Investigation Division (IID) of the police department in Baltimore City. That investigation was initiated by civilian complaints about the conduct of police officers during the service of a subpoena duces tecum on the Maryland Committee Against the Gun Ban ("Committee"). When the Committee sought disclosure of those records, the director of the IID rejected the request by relying on the records of "investigations" exemption of the MPIA. 329 Md. at 86, 617 A.2d at 1044. The records in the present case are of the exact same type as those in Gun Ban; they are the product of an internal review investigation into the techniques employed by its officers during the execution of a public service.
Because the records in this case are "investigation records," thereby falling under the permissible denial section of the MPIA, Montgomery County law demands that the custodian release them to the Inspector General. As we have previously explained, "the `permissible denial' provisions of the MPIA authorize custodians to exercise discretion in granting or denying requests for certain information. Therefore, home rule counties may direct or
For the aforementioned reasons, I respectfully dissent. Judge Barbera authorizes me to state that she joins in the views expressed in this dissent.
Here, the police officers' confidentiality interest must be balanced against the public interest in transparency. The Inspector General was created specifically to "prevent and detect fraud, waste, and abuse in government activities[.]" Montgomery County Code § 2-151(a)(2). Indeed, the public has a vital interest in preventing abuse in government activities. On the other side of the scale, the possibility that the IAD file will be released to the public at large is minor, because under the County Code, the "Inspector General must comply with any restrictions on public disclosure of the document or information that are required by federal or state law." Montgomery County Code § 2-151(l)(1). Thus, the confidentiality interest extends only to preventing the Inspector General from viewing the file. Here, the Inspector General is acting as the government's auditor of the IAD, much like the IAD was the government's auditor of the underlying police investigation. I do not see how the officers view their confidentiality interest as being further hindered by the same type of investigation.