Public records cost dispute reaches state supreme court

Baltimore Police price tag for requests cited in arguments

Maryland legislators in 2021 made a swath of police misconduct records previously shielded from public inspection subject to disclosure under what’s known as Anton’s Law.

But the state’s public defenders and some public interest groups are voicing concern — in briefs filed with the state supreme court in a case focused on Baltimore Police — that police agencies might be sidestepping that intended transparency by charging exorbitant fees for investigatory files looking into officers.

Intentional or not, warned the Maryland Office of Public Defenders, police departments are failing to comply with the law by “imposing enormous and impossible fee requests.”

“Marylanders simply will not see production of the records that are now considered public when their production ... comes with a price tag in excess of one million dollars,” wrote Deborah Katz Levi, the office’s director of special litigation, in one brief.

Arguments over police records and the Maryland Public Information Act reached the state supreme court last Friday, focusing on how agencies weigh whether to grant so-called “fee waivers” to requesters.

It’s not clear when the justices will issue a written opinion in the case.

The dispute centers around public records requests filed to Baltimore Police in late 2019 by Open Justice Baltimore, a community organization that produces data-driven projects. The group sought the agency’s most serious use-of-force investigations for a given time period, along with probes stemming from citizen or administrative complaints.

It also sought a waiver to reduce costs for records that Baltimore Police initially estimated would cost more than $1 million, later reduced to roughly $245,000. State law allows records custodians to waive the cost of producing public records if the requester can’t afford to pay or if waiving fees would be in the “public interest.”

Baltimore Police declined the group’s request.

The Appellate Court of Maryland, formerly known as the Court of Special Appeals, ruled earlier this year that BPD’s waiver refusal was “arbitrary and capricious” because the agency didn’t meaningfully consider how the records would shed light on public controversy, such as scandals surrounding officers’ use of force.

In court filings following the police department’s appeal to the Maryland Supreme Court, city attorneys disagreed.

Baltimore Police, according to its brief, had considered factors including: whether the information was available elsewhere, whether the documents would be understandable to the public, how Open Justice Baltimore would use the information, whether Open Justice Baltimore could pay and the department’s own budget and manpower.

Attorney Michael Redmond said Friday during the court hearing that a cost-benefit analysis was used to determine whether public funds should be spent on the project. If a request would only provide a small public good, at a large expense to taxpayers, it may not be in the public’s interest, he said.

But to Matthew Zernhelt, who represented Open Justice Baltimore, the public documents in question were among those of the highest public interest. The records the group sought would cover the most extreme uses of force by police on community members, he said, and could reveal the quality of follow-up investigations.

“Broadly, the General Assembly did insert this fee waiver provision for records that are innately in the public interest,” Zernhelt said. “If this is not on the far end of the spectrum, I can’t imagine what that provision was inserted for.”

To impose an enormous fee on the records, he argued, was an effective denial.

An amicus brief from public interest groups including the ACLU of Maryland and the Public Justice Center agreed: “The core purpose of the PIA is severely undermined when agencies use exorbitant fees.”

“Making and pursuing FOIA and PIA requests is already complicated and time-consuming,” it said. “Organizations are likely to give up altogether if agencies are permitted to routinely reject fee waivers from public interest organizations seeking public records for public purposes.”

The lawsuit is one of several brought by

Open Justice Baltimore and the activist legal group Baltimore Action Legal Team, known as BALT, that is representing the organization.

It won a case in 2021 seeking then-State’s Attorney Marilyn Mosby’s list of more than 300 Baltimore police officers with credibility issues.

It also has a pending federal lawsuit against the city law department alleging it obstructed the disclosure of records by charging high fees, denying requests for fee waivers and ignoring deadlines.

The implementation of Anton’s Law has faced hurdles across the state.

The public defenders office described submitting 57 MPIA requests for records of 562 officers and receiving a cost estimate of $1,716,530.33. To date, it’s received nine partial files and hundreds of summaries, the brief said.

“Jurisdictions, including but not limited to Baltimore City, will view a reversal by this Court as a signal that they may charge exorbitant fees as a way to avoid compliance with Anton’s Law,” Levi wrote.

Beyond cost, at least two jurisdictions, Baltimore County and Montgomery County, will allow unions representing police to review documents prior to their release. Officers will be able to challenge the release in a “reverse MPIA” that critics say could “gut” transparency and accountability.

Requesters also have faced long waits for records, if the requests have been fulfilled at all.