Interest fee

MD high court to assess denial of fee waiver in Baltimore police records case

Maryland’s highest court will consider whether the Baltimore Police Department should waive the fees it charges public records requesters when the data sought relates to officers’ use of force.

Last month, the Court of Appeals agreed to hear the BPD’s appeal of a lower court ruling that the department wrongly refused to waive fees of more than $245,000 for records requested by the advocacy group Open Justice Baltimore.

In its controversial decision, the Special Intermediate Court of Appeal said the deep public concern over allegations of police brutality essentially demanded that the charges be waived.

But the BPD, in its application for High Court review, said Maryland’s public information law gives the department’s public records custodian discretion whether or not to waive the fee.

For example, the custodian may charge a fee to cover the department’s expenses and time to triage records, including the need to make authorized redactions to protect privacy and safeguard confidential investigations, the BPD attorney said. .

However, the unreported decision of the Court of Special Appeal has created such “legal uncertainty” about the ability to waive fees that it is “almost impossible for claimants and trustees to plan their budgets”, it said. writes Michael Redmond.

“Million-dollar fluctuations in expenditures are difficult to absorb even for a police service, particularly when staffing shortages and demands for institutional reform place ever-increasing demands on service resources,” added Redmond, director of the Baltimore Legal Department’s Appellate Practice Group.

“Furthermore, the litigation of these disputes unnecessarily delays the production of the records that all parties agree the MPIA grants the public the right of access to,” Redmond added in the High Court review petition. “Uncertainty over who pays the expenses therefore hampers the very purpose of the MPIA. So absolutely everyone would benefit from the Court of Appeals issuing its first opinion on the MPIA fee waiver provision in this case.

The OJB, in its response to the BPD’s petition, urged the High Court to reject the department’s “sky is falling” argument in support of the review.

Millions of dollars are not at issue in this case, OJB said, adding that the Special Appeals Court correctly determined that the public interest in the cases clearly called for a waiver of costs.

The police department “is not so distressed by the costs, the appropriate fee waiver standard, or the court’s direction, as much as BPD fights the disclosure of misconduct records in every way possible,” wrote OJB attorney Matthew Zernhelt of Baltimore. Action’s legal team.

“BPD throwing a line for further delay and prevention of disclosure reflects BPD’s modus operandi,” Zernhelt added. “There is no ambiguity as to the MPIA, nor are there any new legal issues for this court to clarify regarding a custodian’s responsibilities regarding fee waivers in the public interest. The application of the law by the Court of Special Appeal was simple and based on previous case law.

The Court of Appeal is due to hear arguments in the case in January. The high court is expected to deliver its decision by August 31 in Baltimore Police Department et al. against Open Justice BaltimoreSeptember 20, 2022.

The litigation arose when the BPD asked OJB for $245,123 to release thousands of pages of public documents related to incidents of police use of force.

OJB requested records of use of force investigations that the BPD closed between July 1, 2018 and December 19, 2019; all administrative and civil complaints were closed between January 1, 2019 and December 19, 2019; and all internal investigations, as well as civil and administrative complaints, open for at least 12 months as of January 10, 2020.

In February 2021, Baltimore City Circuit Judge John S. Nugent upheld the charges as a lawful charge under the MPIA.

But the Special Court of Appeal in February 2022 said the BPD had acted arbitrarily and capriciously in refusing to waive the charges without demonstrating that it had “significantly considered how these recordings might have helped the public to understand how (the BPD) dealt with allegations of police misconduct.”

BPD then requested review by the Court of Appeal.