CITY OF BALTIMORE DEVELOPMENT CORPORATION v. CARMEL REALTY ASSOCIATES

CATHELL, J.

This appeal arises from an action filed by Carmel Realty Associates, respondent,1 alleging that the City of Baltimore Development Corporation (the "BDC"), petitioner, is subject to the requirements of both the Open Meetings Act2 and Maryland's Public Information Act.3 At the trial level, both parties moved for summary judgment. After hearing arguments on March 14, 2005, the Circuit Court for Baltimore City issued an Order denying Carmel Realty's motion and granting the BDC's motion. In an unreported opinion, filed January 24, 2006, the Court of Special Appeals reversed the ruling of the trial court and found that the BDC is subject to the requirements of both the Open Meetings Act and the requirements of Maryland's Public Information Act. The City of Baltimore Development Corporation filed a petition for a writ of certiorari on March 6, 2006, and Carmel Realty filed a cross-petition for a writ of certiorari on March 18, 2006. This Court granted both petitions on May 10, 2006. City of Baltimore Development Corporation v. Carmel Realty Associates, et al., 392 Md. 724, 898 A.2d 1004 (2006).

The following questions are presented for review:4

We hold that the City of Baltimore Development Corporation is, in essence, a public body for the purposes of the Open Meetings Act and it is, in essence, an instrumentality of Baltimore City for the purposes of Maryland's Public Information Act. There has been no decision at the trial level regarding the issue of attorney's fees. Accordingly, we decline to address the issue. See generally Stromberg Metal Works, Inc. v. University of Maryland, 395 Md. 120, 909 A.2d 663 (2006).5

I. Facts

A. City of Baltimore Development Corporation

The City of Baltimore Development Corporation (the "BDC") was formed in October of 1991 with three members: Claude E. Hitchcock, Lyn W. Townsend, and Arnold Williams. The initial Board of Directors was composed of four individuals: William R. Brown, Jr., Honora M. Freeman, Robert W. Hearn, and Lynette W. Young.6 The BDC is a not-for-profit corporation.

The BDC's stated purpose is:

Amended Articles of Incorporation of the City of Baltimore Development Corporation, ART. FOURTH, October 4, 1991.

B. "The Superblock."

In 1999, the Baltimore City Council enacted an amendment to the Urban Renewal Plan, City of Baltimore Ordinance 99-423, for the Westside section of Downtown Baltimore which was advertised as the largest Urban Renewal Plan since the Inner Harbor revitalization took place. Section 3 of that Ordinance states:

Section 4 of Ordinance 99-423 gives the BDC, "acting pursuant to its contract with the Mayor and City Council,"7 certain responsibilities with respect to the Westside project. Sections 5 and 6 of Ordinance 99-423 contain additional responsibilities the BDC is required to fulfill, separate and apart from its contract with the City.8

It is the matter referred to by the parties as the "Superblock" that brings this case before the Court. The Superblock is a part of the Westside project and its boundaries are, generally, the 100 block of Clay Street and the 200 block of West Lexington Street on the north; the 100 block of North Howard Street on the west; West Fayette Street on the south; and North Liberty Street on the east. Within this perimeter are more than 50 individual properties which comprise a total of 3.62 acres. Some of the properties to be condemned or purchased by the City, as part of the Superblock project, are owned by respondents.

On October 27, 2003, the BDC solicited requests for proposals ("RFP's") to develop the Superblock. All of the respondents submitted development proposals to the BDC for the buildings they owned or occupied by February 27, 2004. On October 23, 2004, respondents submitted a written request to the BDC seeking, under Maryland's Public Information Act, access to minutes of meetings of the BDC's Board of Directors, copies of the proposals submitted for the Superblock, and other information in the BDC's possession regarding the proposals. On November 9, 2004, the BDC's President denied the request, writing: "As a separate non-profit corporation, the City of Baltimore Development Corporation is not subject to the Maryland Public Information Act."

On November 16, 2004, all of the respondents, except Carmel Realty, received a letter from the BDC stating that it would contact each of them to arrange a meeting within two weeks of the date of the letter to discuss each respondent's proposal for the development of his or her property. Respondents were to "come prepared to discuss overall costs, financing sources and uses, owner's equity, anticipated public tax credit, subsidy, and grant or loan assistance. . . ." The letter was signed by the BDC's Chief Operating Officer.

On November 18, 2004, respondents submitted a written request to the BDC for information regarding the BDC's Board of Directors' scheduled meetings so that respondents could attend. The record does not contain a response by the BDC to this request. On that same day, the BDC's Board of Directors met and voted unanimously to recommend to the Mayor one entity as the "key developer" for the Superblock. Two other developers were selected to revitalize areas within the Superblock, but Carmel Realty was the only respondent to be selected as a developer.

On November 29, 2004, respondents filed a two count Complaint alleging that the BDC, as the "economic development arm" of Baltimore City, is subject to the provisions of the Open Meetings Act and that, as the City's instrumentality, the BDC is subject to the provisions of Maryland's Public Information Act. On March 14, 2005, the Circuit Court heard arguments on the parties' cross-motions for summary judgment. On June 8, 2005, the Circuit Court issued an Order with a Memorandum Opinion granting petitioner's motion and denying respondent's motion. Respondents appealed to the Court of Special Appeals.

On January 24, 2006, in an unreported opinion, the Court of Special Appeals reversed the judgment of the trial court and found that Maryland's Open Meetings and Public Information Acts applied to the BDC. For the reasons stated below, we affirm the judgment of the Court of Special Appeals.

II. Standard of Review

An appellate court reviews a trial court's grant of summary judgment de novo. Mayor and City Council of Baltimore v. Whalen, 395 Md. 154, 909 A.2d 683 (2006); Rockwood Cas. Ins. Co. v. Uninsured Employers' Fund, 385 Md. 99, 106, 867 A.2d 1026, 1030 (2005). Prior to making a determination as to whether the trial court was correct as a matter of law, the appellate court must make an initial determination as to whether there is a genuine dispute of material fact. Whalen, 395 Md. at 161, 909 A.2d at 688; Jurgensen v. New Phoenix Atlantic Condominium Council of Unit Owners, 380 Md. 106, 114, 843 A.2d 865, 869 (2004). Factual disputes and reasonable inferences drawn from the facts of the case must be resolved in favor of the non-moving party. Whalen, 395 Md. at 161, 909 A.2d at 688; Jurgensen, 380 Md. at 114, 843 A.2d at 869. Only when there is an absence of a genuine dispute of material fact, will an appellate court make a determination as to whether the trial court was correct as a matter of law. Whalen, 395 Md. at 161-62, 909 A.2d at 688; Rockwood, 385 Md. at 106, 867 A.2d at 1030.

The parties do not dispute any material facts for the purposes of determining whether the BDC is a public body under the Open Meetings Act or whether it is an instrumentality of Baltimore City under Maryland's Public Information Act. Therefore, our sole task is to make a determination as to whether the Circuit Court for Baltimore City was correct as a matter of law when it held that the Open Meetings Act and Maryland's Public Information Act do not apply to the BDC.

III. Discussion

Eminent domain is the "`inherent power of a governmental entity to take privately owned property . . . and convert it to public use. . . .'" J.L. Matthews, Inc. v. Maryland-National Capital Park and Planning Commission, 368 Md. 71, 87, 792 A.2d 288, 297 (2002) (quoting Black's Law Dictionary 541 (7th ed.1999)). It is a "basic principle of constitutional law that the power of eminent domain adheres to sovereignty and requires no constitutional authority for its existence." Lore v. Board of Public Works of State of Maryland, 277 Md. 356, 358, 354 A.2d 812, 814 (1976) (emphasis added). The "mode and manner of the exercise of the power of eminent domain, however, is exclusively vested in the judgment and discretion of the Legislature, and is not without its limitations." Matthews, 368 Md. at 87, 792 A.2d at 297 (citations omitted) (quotations omitted). The Fifth9 and Fourteenth10 Amendments to the United States Constitution, together with Article III, § 40 of the Maryland Constitution11 limit the Legislature's power of eminent domain "by requiring that the taking of private property by governmental entities `be for public use and that just compensation be paid.'" Matthews, 368 Md. at 87, 792 A.2d at 297 (quoting Utilities, Inc. Of Md. v. Wash. Suburban Sanitary Comm'n, 362 Md. 37, 45-46, 763 A.2d 129, 133 (2000)).

The recent Supreme Court decision Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), has sparked national, state, and local public debate over the eminent domain process. Writing for the dissent in Kelo, Justice O'Connor explained that Court's historical interpretation of the limitations the Fifth Amendment places on the exercise of eminent domain:

Kelo, 545 U.S. at ___-___, 125 S.Ct. at 2672-73 (O'Connor, J. dissenting) (citations omitted) (quotations omitted). It is clear in the present case that the BDC functions as part of the exercise of the City's powers of eminent domain.13 The BDC by itself has no such power.

We are mindful that the issues discussed by Justice O'Conner above appear to be at the very root of most urban renewal disputes, but they are not presently before us and we leave them for another day. We only note that when one is forced to convey his or her property to a public entity it is in contravention, albeit alleviated by compensation and thus permitted, of a constitutional right and, seemingly, such proceedings should be even more open to public scrutiny especially when the property might ultimately be conveyed to other private parties.

A. Statutory Interpretation.

In Chow v. State, the Court recited the principles of statutory interpretation which we have so often stated:

Chow, 393 Md. 431, 443-44, 903 A.2d 388, 395 (2006) (quoting Kushell v. Dept. of Natural Resources, 385 Md. 563, 576-77, 870 A.2d 186, 193-94 (2005)) (citations omitted) (quotations omitted). The Chow Court continued:

393 Md. at 444, 903 A.2d at 395 (quoting Price v. State, 378 Md. 378, 387-88, 835 A.2d 1221, 1226 (2003) (citations omitted)). We will apply these principles to the Open Meetings Act and to Maryland's Public Information Act in turn.

B. Open Meetings Act.

The openness of government was an issue of great import to at least one of this Country's founding fathers. John Adams, when distinguishing between the manner in which the public business of his ancestors was carried out and his hopes for the future of America, wrote that:

Maryland's first comprehensive legislation regarding open meetings came into being over 200 years later when, in 1977, the General Assembly enacted sections 7 through 15 of Article 76A of the Maryland Code. Community and Labor United For Baltimore Charter Committee (C.L.U.B.) v. Baltimore City Board of Elections, 377 Md. 183, 193, 832 A.2d 804, 809 (2003) (citing Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 137-138, 699 A.2d 434, 440 (1997)). "[T]he heart of the Act15 is found in the public policy declarations of § 7, i.e., that `public business be performed in an open and public manner and that the citizens be advised of and aware of . . . the deliberations and decisions that go into the making of public policy.'" New Carrollton v. Rogers, 287 Md. 56, 71-72, 410 A.2d 1070, 1078 (1980) (emphasis added). Then-Chief Judge Murphy, writing for the Court in New Carrollton, eloquently explained the policy behind the Open Meetings Act:

New Carrollton, 287 Md. at 72-73, 410 A.2d at 1078-79 (citations omitted). Judge Eldridge, more recently for this Court, stated: "The clear policy of the Open Meetings Act is to allow the general public to view the entire deliberative process." C.L.U.B., 377 Md. at 194, 832 A.2d at 810 (emphasis added). Article 76A was recodified as §§ 10-501-10-512 of the Open Meetings Act by Chapter 284 of the Acts of 1984 without any substantial changes. Therefore, the fundamental policy of the Open Meetings Act is the same today as it was in 1977, that: "it is essential to the maintenance of a democratic society that . . . public business be performed in an open and public manner; and citizens be allowed to observe . . . the deliberations and decisions that the making of public policy involves." § 10-501(a)(1)(ii) (emphasis added).

We continue with the plain language of the relevant portions of the Open Meetings Act:

§ 10-502(h).

Petitioner argues that it is not a public body within the meaning of the Open Meetings Act because it is not an entity created by one of the provisions of § 10-502(h)(1). It urges us to read § 10-502(h)(2) as being merely illustrative of § 10-502(h)(1) because the word "means" is used in (h)(1) and the word "includes" is used in (h)(2). Petitioner argues that the Legislature uses "means" to define and "includes" to illustrate or give examples only of what it has already defined in § 10-502(h)(1). The BDC incongruously relies on Maryland Code (1957, 2005 Repl. Vol.), Article 1, § 30, for support: "The words `includes' or `including' mean, unless the context requires otherwise, includes or including by way of illustration and not by way of limitation." (Emphasis added). Petitioner also cites to Hackley v. State, in which we quoted from the Maryland Style Manual for Statutory Law, Department of Legislative Services (Jan.1998) at 27: "[L]egislative drafters [are] to `[u]se "means" if the definition is intended to be exhaustive' . . . and to `[u]se "includes" if the definition is intended to be partial or illustrative'. . . ." Hackley, 389 Md. 387, 393, 885 A.2d 816, 820 (2005). In short, petitioner argues that § 10-502(h)(1) lists exclusively the threshold indicia of a public body for the purposes of the Open Meetings Act and § 10-502(h)(2) only illustrates or gives examples of those types of public bodies specified in § 10-502(h)(1). We disagree; rather, the two sections address alternative approaches. Section 10-502(h)(2) introduces a new concept and is not a subsidiary section to § 10-502(h)(1) because it introduces a different set of public bodies other than those described in § 10-502(h)(1).

Respondent's position is consistent with our view. Initially, respondent asserts that the BDC is subject to § 10-502(h)(1) because it originally had three "high City officials" on its governing body and because the BDC's website stated it was "chartered" by the City. Respondent also argues, persuasively, that when § 10-502(h)(1) and (2) are read together in context, the word "includes" is not used to limit § 10-502(h)(1) because § 10-502(h)(2) introduces a different manner in which qualifying public bodies may be created that is separate and distinct from § 10-502(h)(1). Thus, respondent asserts, the context of the word "includes" prevents it from being read only as illustrative of and limited to the provisions of § 10-502(h)(1). We agree. Had it been a subsidiary clause of § 10-502(h)(1) it would have been made subject to the prior section and normally would have been designated "§ 10-502(h)(1) . . . (iii)."

For an entity to meet the definition of a public body, § 10-502(h)(1)(i) requires that it consist of at least two individuals. Section 10-502(h)(1)(ii)(1-7) imposes the additional requirement that the entity be created by Maryland's Constitution; a State statute; a county charter; an ordinance; a rule, resolution, or bylaw; an executive order of the Governor; or an executive order of the chief executive authority of a political subdivision of the State. Thus, § 10-502(h)(1)(i) and (ii) make the Open Meetings Act applicable to entities consisting of at least two individuals that are created by some form of constitutional act, legislative act, or executive order. The BDC's Board of Directors consists of more than two individuals, as required by § 10-502(h)(1)(i), but there is nothing in the record to show that the BDC was created by any of the specific acts or orders found in § 10-502(h)(1)(ii) 1-7. Therefore, in the absence of support in the record, the BDC cannot be placed within the class of entities that are "public bodies" solely under the provisions of § 10-502(h)(1)(i) and (ii).

Section 10-502(h)(2)(i) additionally states, however, that a:

Section 10-502(h)(2)(i), as it pertains to the case at bar, makes multimember boards appointed by the chief executive authority of a political subdivision, which consist of at least two individuals not employed by the particular subdivision, subject to the Open Meetings Act. Thus, § 10-502(h)(2)(i) introduces a separate and distinct definition from the definition contained in § 10-502(h)(1) and the context requires that the word "includes" not be read as illustrative, by way of limitation, of the § 10-502(h)(1) methods by which a public body subject to the act is defined. Were we to find otherwise, we would be reading § 10-502(h)(2)(i) and the distinct meaning it introduces, as superfluous or nugatory and we would not be harmonizing provisions dealing with the same subject so that each may be given effect. Such a reading would be inconsistent with the principles of statutory interpretation. Moreover, the parties do not dispute that the BDC's bylaws require it to be a multimember board, that its Board of Directors currently consists of at least two individuals not employed by Baltimore City,16 and that the Board is nominated or appointed by the Mayor of Baltimore City.17

The City of Baltimore Development Corporation's Amended Articles of Incorporation provide:

ART. SIXTH, October 4, 1991. Section (1) gives the Board of Directors power over the activities of the Corporation. Section (2) provides that, in accordance with the corporation's bylaws, the Board of Directors will consist of a certain number of people who have certain qualifications. The bylaws, as amended on November 4, 1997,18 give the Mayor power of appointment or nomination to the Board, the power of removal over members of the Board, and the power to appoint directors to fill vacancies for the remainder of terms of vacating directors. The Mayor, to a large extent, can control the Board of Directors and the Board controls the BDC. Thus, through the nomination, removal, and appointment process, the Mayor controls the City of Baltimore Development Corporation and it is, in essence, a public body under the plain language of § 10-502(h)(2) and must comply prospectively with the provisions of the Open Meetings Act.19

Although there is no ambiguity in the term "includes" as it is used in § 10-502(h)(2) and no interpretation is required, petitioner argues, in the alternative, that the legislative history of § 10-502(h)(2) demonstrates that the General Assembly never intended to apply the Open Meetings Act to entities like the BDC. Petitioner bases its argument on an Attorney General's letter discussing the interpretation of "includes" (in the context of a failed amendment to the Open Meetings Act), two failed bills which would have expanded the definition of public body to expressly reach private corporations, and one failed bill which would have expanded the definition for the sole purpose of reaching the BDC.

We note at the outset, that Attorney General opinions are entitled to consideration, but that they are not binding on this Court. Dodds v. Shamer, 339 Md. 540, 556, 663 A.2d 1318, 1326 (1995). The proposed language of the suggested amendment to § 10-502(h)(2) that the Attorney General was asked to interpret for the purposes of the advisory letter was: "`PUBLIC BODY' INCLUDES THE MULTIMEMBER GOVERNING BODY OF ANY CORPORATION DIRECTLY SUPPORTED ENTIRELY BY PUBLIC FUNDS."20 (quotations omitted). That language, however, was not included in the amendment. The language that was actually enacted read:

Chapter 655 of the Acts of 1991. The letter from the Attorney General is not relevant to the case at bar because the version of the bill that the Attorney General was asked to interpret was apparently rejected by the General Assembly when it enacted an entirely different version of the bill that included the language we here interpret.21

Petitioner then argues that three proposed amendments to the definition of "public body" that were rejected by the General Assembly are evidence that it never intended § 10-502(h)(2) to apply to the BDC. The first two proposed bills were essentially the same. In 1998, Senate Bill 340 proposed an amendment to § 10-502(h)(2) that would make corporations whose bylaws required at least half of the governing body to be composed of public officers or public employees or the appointees of public officers or public employees subject to the Open Meetings Act. Senate Bill 608, introduced in 2000, would have only made corporations whose bylaws required the Board of Directors to be composed of at least half public appointees subject to the Open Meetings Act. Also in 2000, Senate Bill 241 attempted to amend § 10-502(h)(2) to specifically include the BDC.22

When addressing this precise issue with respect to Failed Senate Bill 340, the Court of Special Appeals said: "Although it may be appropriate and useful to review a failed legislative effort in determining legislative intent, whether as part of the original legislative effort or subsequent amendments, legislative rejection is not an infallible indicator of legislative intent." Andy's Ice Cream, Inc. v. City of Salisbury, 125 Md.App. 125, 154, 724 A.2d 717, 731 (1999). See also, State v. Bell, 351 Md. 709, 721, 720 A.2d 311, 318 (1998). We have pointed out that this is because the General Assembly may well have concluded that the rejected amendment "warrant[ed] further investigation" before acting on it, Automobile Trade Ass'n v. Ins. Comm'nr, 292 Md. 15, 24, 437 A.2d 199, 203 (1981), or decided not to enact the amendment for a myriad of other reasons. It may have felt that the entity was already covered by the Open Meetings Act and that a statute expressly so providing was superfluous. Thus, "the fact that a bill on a specific subject fails of passage in the General Assembly is a rather weak reed upon which to lean in ascertaining legislative intent," id. at 24, 437 A.2d at 203, and we are not persuaded that the failure of the General Assembly to enact the above mentioned Bills is demonstrative of their intent that the BDC not be subject to the Open Meetings Act.

In summary, the Legislature, as a matter of public policy, has determined that it is essential to the maintenance of a democratic society that, subject to certain well defined exceptions, the deliberations of a public body be open to the public which it serves. An entity that possesses as many public traits as does the BDC is a public body for the purposes of the Open Meetings Act. The table below represents a survey of the provisions of the Corporate Charter, the BDC contracts with the City, and the governing ordinance and is a powerful visual aid demonstrating the extent to which the BDC has been able to cloak the business of the Citizens of the City of Baltimore behind the veil of a supposedly private corporation.

           Purely Public                          Public and Private                Purely Private
             Function                                  Function                        Function

  Develop and implement long-range       Coordinate development efforts
  development strategies for             between the public and private
  the City.                              sector and expedite the review of
                                         public approvals and other government
                                         services in the City.

  Undertake any appropriate activity     Provide in the furtherance of
  to achieve the continued               these declared purposes, financing,
  strong business climate, urban         financial assistance, and financial
  renewal, and development               advice, including but not
  throughout the City.                   limited to activities permitted under
                                         programs of the Small Business
                                         Administration and other
                                         economic development programs
                                         of the Federal, state, or local
                                         governments.

  Implement, oversee, and encourage      Encourage cultural, entertainment,
  public and private development         recreational, historic, and
  and rehabilitation projects            educational facilities that will further
  that will increase the City's tax      the promotion of the benefits
  base.                                  of living or visiting the City; to
                                         bring new spending power to the
                                         City's economy.

  Enhance and improve the physical       Enhance and improve the image
  and cultural environment of            of the City as a place to live,
  the City through the creation of       work, and visit; and to encourage



  public open space, and improved        new residential initiatives in the
  transportation systems.                City.

  Improve the economic health of         Coordinate activities of local,
  the City through attraction of         state, and Federal agencies as
  new businesses, retention of existing  well as private for-profit and non-profit
  businesses, and the stimulation        entities for the purpose of
  and encouragement of                   achieving the Corporation's objectives,
  growth and expansion of commercial     and to receive an expend
  office uses, manufacturing,            funds from any legal source or
  warehousing, distribution,             legal purpose so long as consistent
  research, and development.             with its declared purposes.

  In furtherance of these declared       Undertake activities within the
  purposes, to carry out a contract      City or outside the City when
  or contracts, between the Corporation  such activities are reasonably
  and the City; such services            anticipated to have an impact on
  as therein specified, to include,      the City; which activities may include
  the coordination of public             research, planning, and
  functions such as preparation,         investigation.
  adoption, and execution of Urban
  Renewal Plans, Planned
  Unit Developments, Industrial
  Retention Zones, and Free Enterprise
  Zones.

  The Mayor of Baltimore has the         Increase minority business enterprise
  power to appoint or nominate           and women's business enterprise
  the BDC's Board of Directors,          participation in business
  including the Chairman of the          and development activity.
  Board.

  The Mayor of Baltimore has
  powers in respect to removing
  the BDC's Board of Directors,
  including the Chairman of the
  Board.

  If BDC ceases to exist, pursuant
  to contract with the City, tangible
  property purchased with
  funds attached to that contract
  revert to the City.

  Over 80% of the BDC's budget is        The remaining percentage of the
  provided by the City of                BDC's funding comes from public
  Baltimore.                             and private sources other than
                                         the City.

The left-hand column indicates the most direct qualities which make the BDC a public body under the Open Meetings Act. The middle column indicates activities with both a public and a private connotation. As far as we have discerned, from the record before us, there are no purely private functions of the BDC for the purposes of the Open Meetings Act. As such, it is consistent with the intent of the Open Meetings Act that the deliberative process of the BDC, to include all deliberations preceding the final decisions made by the Mayor or the City Council, must be open to the public to the same extent as would any proceeding of the Mayor or City Council of Baltimore City. This is because every step of the process comprises the consideration or transaction of public business. Thus, consistent with the precedent established by the Court in the opinion written by then-Chief Judge Murphy in New Carrollton, supra, we have construed the statute so as to frustrate all evasive devices relating to any public matter upon which foreseeable public action will be taken.

C. Maryland's Public Information Act.

Section 10-611(g)(1)(i) of Maryland's Public Information Act ("MPIA") states:

Maryland Code (1984, 2004 Repl.Vol.), § 10-611 of the State Government Article.

Petitioner argues that it is not a statutorily created entity and, therefore, the MPIA does not apply to it. Respondents argue that the law only requires that the BDC be an "instrumentality" of Baltimore City for the MPIA to apply. Thus, the dispositive issue is whether the BDC is an "instrumentality" of Baltimore City. We hold that the BDC is an instrumentality of the City.23

Such a holding is consistent with the stated purpose of the Maryland Public Information Act:

§ 10-612. Moreover, holding that the BDC is an instrumentality of the City is consistent with our interpretation of the General Assembly's intent when it enacted the MPIA: "[I]t is well established that `"the provisions of the [MPIA] reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government."'" Caffrey v. Department of Liquor Control for Montgomery County, 370 Md. 272, 305, 805 A.2d 268 (2002) (quoting Kirwan v. The Diamondback, 352 Md. 74, 81, 721 A.2d 196, 199 (1998) (holding that parking violations issued to the head coach and members of the basketball team at the University of Maryland were subject to the MPIA)); accord Fioretti v. Md. State Bd. of Dental Exam'rs, 351 Md. 66, 73, 716 A.2d 258, 262 (1998) (State Board of Dental Examiners failed to carry its burden that its records fell within the MPIA's exception for law enforcement reports compiled for investigatory purposes); A.S. Abell Pub.Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983) (statutorily created Maryland Insurance Guaranty Trust was an instrumentality of the State and therefore, subject to the MPIA). On several occasions, this Court has "`explained that the provisions of the statute" must be liberally construed . . . in order to effectuate the [MPIA's] broad remedial purpose."'" Caffrey, 370 Md. at 306, 805 A.2d at 288 (quoting Kirwan, 352 Md. at 81, 721 A.2d at 199). Therefore, finding that the MPIA is applicable to the BDC is consistent with the stated purpose and the intent of the statute; the public should have broad access to information concerning the operation of governmental instrumentalities especially when the instrumentality's operations may involve charting the course and laying the foundation leading to the involuntary, albeit legal, taking of constitutionally protected private property even for compensation.

The ordinary and popular meaning of the plain language of the statute does not require that an entity be established by a statute for it to be subject to the provisions of the MPIA. The statute only requires that the entity be a "unit or instrumentality" of the City for its provisions to apply.24 Instrumentality is defined as "the quality or state of being instrumental" and instrumental is defined as "serving as a means, agent, or tool." Merriam Webster's Collegiate Dictionary 607 (10th ed.1998). Instrumentality is also defined as: "1. A thing used to achieve an end or purpose. 2. A means or agency through which a function of another entity is accomplished, such as a branch of a governing body." Black's Law Dictionary 814 (8th ed.2004). As the table above indicates, the BDC was formed to plan and implement long range development strategies throughout the City of Baltimore in behalf of the City of Baltimore; to implement, oversee, and encourage development that will increase the City's tax base; to provide jobs in the City; to enhance and improve the physical and cultural environment of the City; to improve the economic health of the City; and to be responsible for Urban Renewal Plans, Planned Unit Developments, Industrial Retention Zones, and Free Enterprise Zones on behalf of the City. The BDC was clearly established, and is maintained, as an agent or tool of Baltimore City in order to accomplish the City's ends or purposes. Thus, the plain language of the statute, in its ordinary and popular meaning, makes the BDC, in essence, an instrumentality of the City and, therefore, the MPIA is applicable to the BDC.

Petitioner argues, in the alternative, that if we find ambiguity in § 10-611(g)(1)(i), that Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975) and Mezzanote, 297 Md. 26, 464 A.2d 1068, require us to find that the determining factor in whether the BDC is subject to the MPIA is whether it was created by law. Although we perceive no ambiguity in § 10-611(g)(1)(i), we will address these arguments.

Petitioner misconstrues the holdings of Moberly and Mezzanote. There is no one factor we looked to in either of those cases to determine whether an entity is an instrumentality of the state. Instead, we examined all aspects of the relationship between the entity and the state or political subdivision. In Moberly, the Court was asked to determine whether a statutorily established corporation, known as the Board of Governors of the Memorial Hospital of Cumberland, was subject to the provisions of the MPIA. The Moberly Court found that a statutorily established corporation was subject to the MPIA based on all aspects of the interrelationship between it and the City of Cumberland. 276 Md. at 225, 345 A.2d at 862-63. In Mezzanote, the Court was asked to determine whether the statutorily created Maryland Insurance Guaranty ("MIGA") was an instrumentality of the state for the purposes of the MPIA. The Mezzanote Court concluded that MIGA was subject to the provisions of MPIA only after: "[E]xamining all aspects of the interrelationship between the State and MIGA, including the degree of control exercised by the State over MIGA's operation. . . ." 297 Md. at 39, 464 A.2d at 1074. Thus, the fact that the Memorial Hospital of Cumberland and MIGA were created by statute was one factor, but not the only factor in assessing the degree of control exercised by the State or political subdivision over that entity.

With respect to the BDC, the following aspects of its relationship with the City make it an instrumentality of the City: The BDC's Board of Directors, to include the Chairman of the Board, are nominated or appointed by the Mayor of Baltimore; he has the power to remove members of the Board before their four year terms are up; the Mayor also has the power to fill vacancies; the City's Commissioner of the Department of Housing and Community Development and the City's Director of Finance are permanent members of the Board; the BDC receives a substantial portion of its budget from the City;25 the BDC has a tax exempt status under the Internal Revenue Code; pursuant to the City's contract with the BDC, if it should cease to exist, the City would control the disposition of the BDC's assets; BDC is also authorized to prepare and adopt Urban Renewal Plans, Unit Development, Industrial Retention Zones, and Free Enterprise Zones which are traditionally governmental functions.26 We also note that the City Solicitor represented the BDC in this matter.27 Thus, even though the BDC was not created by a legislative act, the factors listed above demonstrate that the BDC is subject to substantial control by the City because of how closely the two are intertwined. Therefore, even if the statute is ambiguous, which it is not, and the test applied in Moberly and Mezzanote was controlling — even under that test — the BDC is, in essence, an instrumentality of the City.

IV. Conclusion

We hold that the trial court erred as a matter of law and that the City of Baltimore Development Corporation is, in essence, a public body for the purposes of the Open Meetings Act and that it is also an instrumentality of the City of Baltimore for the purposes of Maryland's Public Information Act.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND TO THE CIRCUIT COURT FOR BALTIMORE CITY WITH INSTRUCTIONS FOR THE CIRCUIT COURT TO RENDER JUDGMENT CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.