Maryland County Deemed to Have Failed to Provide Open Government Documents

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In Maryland, “sunshine” statutes such as the Open Meetings Act, Md. Code Ann., Gen’l. Prov. Art. §3-301, et seq., and the Public Information Act, Md. Code Ann., Gen’l. Prov. Art. §4-101, et seq., further the goal of open and transparent government.

In State compliance board rules Cassilly’s office violated Public Information Act – Baltimore Sun (Mar. 26, 2024), Ben Terzi reported that the Maryland Attorney General’s Public Information Compliance Board determined that the Harford County Executive failed to comply with a Maryland Public Information Act (“MPIA”) request submitted by the Harford County Sheriff.

In short, the County Sheriff asked the County to permit inspection of certain public records stored on government servers.  The County responded that a County legislator had asserted that its accessing those records was an illegal wiretap and the County asserted that “the Sheriff’s Office had ‘dispatched’ employees to ‘harass’ certain County  employees.” The County added that the Office of the State Prosecutor (“OSP”) had opened an investigation into the wiretapping allegations.  Thus, the County refused the Sheriff’s MPIA request.

However, the administrative Public Information Act Compliance Board determined that the public records must be produced.

According to the Baltimore Sun article, the genesis of the sunshine request was that, after a change in office, the new County Executive “shelved” a project to repurpose a building as a law enforcement training facility and also removed two positions from the sheriff’s 2024 budget. Id.  The Baltimore Sun reported:

In the MPIA request, [Sheriff] Gahler asked for any documents since December 2022, including archived letters and emails from county employees, that mentioned “MW Studios Architecture Master Planning,” as well as any emails sent or received by an address ending with “@mwsarch.com.” Gahler sent his initial request to Harford County Director of Administration Robert McCord in September 2023 and got a response on Nov. 15 refusing the request.

[County Executive] Cassilly’s office said it could not search electronic servers while the county executive is the subject of an open criminal investigation into illegal wiretapping of county employees. That case, based on allegations by Harford County Council member Aaron Penman, was referred to law enforcement last August. McCord’s response to Gahler stated that no county employee would be directed to search county servers until a court rules it is not illegal to do so.

Id.

In its March 19, 2024, decision, the Public Information Act Compliance Board disagreed with the County.  It described each party’s position as follows:

The Board wrote: “In response to the [Sheriff’s] complaint, the County indicates that, while it believes it has authority to comply with the PIA request, it is precluded from doing so because the Sheriff has taken the position, in a different matter, that ‘searching for and retrieving emails from a County-owned server’ constitutes illegal wiretapping.’”

On the other hand, the Board wrote that: “In his complaint, the [Sheriff] challenges the County’s ‘outright false assertion’ that it cannot search for emails of its employees due to the open criminal investigation being conducted by OSP.  The [Sheriff] acknowledges that there is such an open investigation, but stresses that it is ‘centered on the County Executive’s Office searching the emails of a Councilman who is not their employee,’ and that the investigation ‘in no way negates the County’s ability or duty’ to respond to his PIA request.”

The Board stated that the MPIA is rooted in the principle 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,” quoting the statute.

It wrote:

While it is far beyond our role to decide what may or may not constitute wiretapping under Maryland’s criminal laws, we nevertheless observe that the Wiretap Act has not been an apparent impediment to custodians’ access to email records….  We agree that, by refusing to search for records received or generated by County employees that may be responsive to the complainant’s PIA request, the County has effectively denied inspection of those records and thus violated the PIA.  We direct the County to “conduct a search in good faith that is reasonably designed to capture all responsive records,” [citation omitted], and to disclose all non-exempt responsive public records to the complainant….

While it is also far beyond this blog to comment or opine on the allegations, for news reports on the wiretap allegations, which are denied by the County, see Kelsey Kushner, WJZ obtains new evidence into wiretapping allegations against Harford County Executive – CBS Baltimore (cbsnews.com)(Aug. 9, 2023), and  Jason Fontelieu, Harford County executive, administration accused of violating wiretap law; case referred to state prosecutor’s office – Baltimore Sun (Aug. 1, 2023).

For general information on the MPIA, please see Maryland’s “Sunshine Law”:  Cooperation, Searches, Metadata, and Costs (Part III)(Sep. 22, 2023), and “Baltimore County improperly withheld some documents sought by former official, judge says” (Mar. 15, 2024).

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