By: Ryan Powelson

     The Supreme Court of Maryland held that the Baltimore Police Department’s (“BPD”) denial of a fee waiver under the Maryland Public Information Act (“MPIA”) was arbitrary and capricious because BPD, in making its public interest determination, failed to consider “all relevant factors.”  Balt. Police Dep’t v. Open Just. Balt., 485 Md. 605, 301 A.3d 201 (2023).  If the agency decides a fee waiver would be in the public interest based on a requesting party’s ability to pay and “other relevant factors, the waiver request must be granted.  Id at 650-53, 301 A.3d at 227-28.

     Between December 2019 and February 2020, Open Justice Baltimore (“OJB”), a Baltimore-based non-profit, submitted a series of requests for a range of BPD personnel records that spanned all levels of seriousness regarding misconduct and use of force complaints.  Throughout their disclosure requests, OJB requested fee waivers in accordance with their interpretation of the MPIA.  OJB justified its request on the basis that a public release of the documents sought would benefit the public interest, which was something contemplated by the statute.

     After initial talks, BPD neither approved nor denied the fee waiver request but said OJB may not be eligible for a fee waiver.  BPD then asked if the organization would consider narrowing the scope of documents sought.  OJB declined to do so and clarified that it sought all documents relevant to its search terms, over 13,000 in total, but indicated a willingness to pay certain copying costs.  After identifying the relevant records, BPD quoted a fee of $1,431,475.50 to comply with the request.  OJB responded to the cost estimate by reiterating its fee waiver request and questioned the number of documents contained within the total.  BPD considered OJB’s concerns and sent a revised cost estimate of $245,123.00, to which OJB reiterated its desire to waive the fee.  Finally, OJB sent a final waiver request highlighting why they believed the release of the records was in the public interest.  OJB cited the history of misconduct within BPD, including the Gun Trace Task Force scandal, to highlight the public need for information about the department’s inner workings.  Ultimately, BPD denied the request.

     On March 2, 2020, after BPD failed to respond to the information requests within the timeline demanded by the MPIA, OJB filed a complaint in the Circuit Court for Baltimore City.  The complaint alleged that BPD’s decision to deny the fee waiver request was arbitrary and capricious.  The circuit court held that OJB’s request was not adequately specific about how the public interest would be served by the disclosure.  That fact, paired with the volume of records requested by OJB led the court to conclude that BPD’s denial of the fee waiver request was not arbitrary and capricious.  The court also upheld BPD’s refusal to turn over records related to open personnel investigations.

     OJB appealed the circuit court’s decision to the Appellate Court of Maryland.  The Appellate Court or Maryland issued an unreported opinion upholding the denial of open investigation files but overturned the denial of the fee waiver request.  BPD then filed a writ of certiorari, which was granted by the Supreme Court of Maryland.

     The Supreme Court of Maryland began its analysis by identifying the proper standard of review. Open Just. Balt., 485 Md. at 644, 301 A.3d at 223.  Unlike the federal Freedom of Information Act, the MPIA affords agencies discretion in determining if a fee waiver is justified. Id. at 658, 301 A.3d at 232.  The court reasoned that by giving agencies such discretion, the Maryland General Assembly understood that appeals of fee waiver decisions would be decided under the arbitrary and capricious standard used for such agency decisions.  Id. The court also held that due to the lack of an appellate procedure within the statutory framework of the MPIA, the circuit court had jurisdiction to hear the appeal as a writ of mandamus action.  Id. at 646, 301 A.3d 224-25. 

     The court then turned to the meaning of the statutory language.  Open Just. Balt., 485 Md. at 646, 301 A.3d at 224-25.  The MPIA states that a custodian agency may grant a fee waiver request if: (1) the applicant files an affidavit of indigency, or (2) if, in light of the applicant’s ability to pay and “other relevant factors,” the agency finds a fee waiver to be in the public interest.  Id. at 646, 301 A.3d at 225.  The court reasoned that the term “may” in the statutory text provides discretion to determine if the conditions are met.  Id. at 650, 301 A.3d at 227.  In the absence of an affidavit of indigency, BPD has the discretion to determine whether a release is in the public interest based on OJB’s ability to pay or “other relevant factors.”  Id. at 651, 301 A.3d at 227-28.  The fee must be waived if, based on those criteria, the agency finds the release to serve the public interest.  Id.

     Next, the court applied the arbitrary and capricious standard to the facts of this case.  Open Just. Balt., 485 Md. at 660, 301 A.3d at 223.  BPD argued its denial of OJB’s fee waiver request was justified because the public interest served was “too vague[,]” that the requested information would not be illuminating to the public, and that OJB had the ability to pay.  Id. at 663, 301 A.3d at 235.  The court rejected these justifications.  Id. at 663, 665, 667-68, 301 A.3d 235-36, 237-38.  In the court’s view, the publicized controversies surrounding BPD clarify the public interest rationale.  Id. at 664, 301 A.3d at 225.  The court also rejected BPD’s claim that the information in the records was redundant to publicly available information, because the requested information would contain previously unavailable investigative findings.  Id. at 665, 301 A.3d at 226.  Finally, the court rejected as unfounded BPD’s argument that the necessary redactions would render the files unintelligible.  Id.

     Then, the court addressed BPD’s determination that OJB could pay the quoted fee.  Open Just. Balt., 485 Md. at 666, 301 A.3d at 236.  The court found BPD’s reliance on an email exchange in which OJB’s counsel indicated the organization’s willingness to pay certain copying fees unconvincing.  Id. at 668, 301 A.3d at 237.  That email alone did not support the conclusion that OJB could pay the full fee.  Id.  Although the court found BPD’s consideration of its own administrative costs proper, considering BPD’s mistaken appraisal of OJB’s ability to pay and its failure to consider other factors, the court deemed BPD’s denial as arbitrary and capricious. Id. 

     Finally, the court identified what “other relevant factors” were necessary to consider OJB’s fee waiver request properly.  Open Just. Balt., Md. 485 at 668, 301 A.3d at 238.  In the court’s view, BPD should have considered at least two factors beyond the ability to pay and contribution to public understanding: (1) whether disclosure would help inform the public about a public controversy, and (2) whether a denial would fuel public scrutiny. Id.  By failing to consider factors other than OJB’s suspected ability to pay and production costs, BPD fell short of its requirement to consider “other relevant factors.” Id. 

     For these reasons, the court held that BPD’s denial of the fee waiver request was arbitrary and capricious.  Open Just. Balt., 285 Md. at 673, 301 A.3d at 241.  The court remanded the matter for BPD to reconsider the fee waiver based on the proper factors.  Id.

     The Supreme Court of Maryland’s holding directs agencies to weigh broader considerations when granting a fee waiver under the Maryland Public Information Act.  By forcing agencies to undertake a more fulsome analysis, the court has increased the likelihood that information relevant to the public interest will be released at no or reduced cost.  For law enforcement agencies like the Baltimore City Police Department, which have faced a wave of public criticism in recent years, this new standard can build trust as increased transparency will foster the public’s understanding of police operations and hopefully help to improve community relations.

Ryan Powelson is a third-year law student at the University of Baltimore School of Law. Ryan attended Salisbury University and graduated in 2020 with a B.A. in Political Science. Before law school, Ryan worked for the Register of Wills in Anne Arundel County, Maryland. 1L summer, he worked as a law clerk for the Maryland Office of the Attorney General, State Highway Administration. Currently, Ryan is an extern at the U.S. Attorney’s Office for the District of Maryland.