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).

Based on the news article, Baltimore County had entered into a confidential settlement agreement with a former firefighter to resolve disputed retirement claims.  Earlier news reports state: “Baltimore County did not notify its County Council last year about a confidential settlement totaling more than $86,000 despite a law that requires council members be provided a list of settlements annually.”  Taylor Deville, Baltimore County Council not notified of $86,000 settlement last year despite disclosure requirement – Baltimore Sun (Sept. 4, 2021).

An MPIA request was made and rejected.  A lawsuit followed.  Mr. Barker reports that a former County administrative officer alleged that the current administration “violated the Maryland Public Information Act by refusing to turn over thousands of emails and by charging unreasonable fees for public records.”  Id.  Plaintiff’s attorney was quoted:

“The less you want to show it to me, the more I need to see it,” said Rignal W. Baldwin V, Homan’s attorney, in an interview Wednesday. “What’s the need for secrecy in county government?”

Mr. Barker reported on the Court’s decision:

“The confidentiality provision is not basis for withholding the settlement agreement,” the judge wrote in a Feb. 1 opinion that said the agreement was “wrongfully withheld.”

The Circuit Court for Baltimore County’s decision is not available on Westlaw.  The Court docket states only that “the retirement records exemption of the MPIA be interpreted narrowly, and that ‘retirement records’ for the purposes of the MPIA be defined as documents that can be indexed by name or social security number and which contain retirement-related information, etc.”

In another news report, J. Barker, PressReader.com – Digital Newspaper & Magazine Subscriptions (Mar.  14, 2024), it is stated that the Court “ruled that other documents, including correspondence between officials about [the firefighter’s] case, should also be released but that other records were properly withheld because of privacy considerations such as attorney-client privilege.”

The news reports did not address the allegation that the County charged an unreasonable fee for the MPIA request.  Fee waivers and cost-shifting may be permitted, depending on whether a request is made and on the facts presented in support of a request. See Maryland’s “Sunshine Law”:  Cooperation, Searches, Metadata, and Costs (Part III), citing Baltimore Police Dep’t v. Open Just. Baltimore, 2023 WL 5616318 (Md. Aug. 31, 2023), on the waiver issue.  It is not clear from the news reports whether a waiver was requested.

The docket reflects a subsequent fee petition, discovery requests, a motion for protective order, and a motion to enforce and petition for contempt.

I have written a series of blogs on the Maryland Public Information Act.  See Maryland’s “Sunshine Law”:  Cooperation, Searches, Metadata, and Costs (Part III) (Sept. 22, 2023).  The Maryland Attorney General has posted the office’s “PIA Manual (18^th ed.).

• How to Read a Load File
• More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”
• Possession, Custody, or Control – Part II
• Don’t Be Too Nice When You Send a Preservation Notice
• Relevance Redactions Revisited
• ABA Formal Opinion on Misconduct in Virtual Depositions
• Maryland Rules Order Amends Sanctions Rule
• Maryland Amends Ethics Rule 4.4(c)
• Maryland’s “Sunshine Law”:  Cooperation, Searches, Metadata, and Costs (Part III)
• Fowler Cell Phone Decision Affirmed, updating District of Maryland Sets Guidelines for Cell Phone Preservation in Place
• Candor Pays Off When It Comes to Alleged Spoliation: Notice + Accrual = Claims Bar
• Should an ESI Protocol Be Incorporated Into a Court Order?

Two hypertechnical blogs are:

• Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight
• What is Double Spacing?

I have written to the American Bar Association to ask whether it has taken a position on the threats against the Colorado Supreme Court.  Threats Against the Colorado Supreme Court Must Be Called Out.  I will update the blog when I receive an answer.

And, of course, there is always the important question of Is it Spoliation to Bury a Dead Cow?

Happy New Year!

THE ANTIQUATED PIA EXCEPTION FOR METADATA

When it comes to metadata, however, civil discovery principles and the PIA part company.  The Maryland PIA gives the custodian of public records the unilateral and unlimited power to scrub metadata, without any showing of cause.  Further, it appears that the custodian may bill the requestor for the cost of dumbing down the public records.

A better solution would be to require, at a minimum, discussions with the requestor regarding the production or scrubbing of metadata.  Often, a requestor will not need or want metadata. However, there may be times where metadata is important to the use or interpretation of the public records.

There was “metadata” in the Declaration of Independence.  See Thomas Jefferson’s “Metadata” in the Declaration of Independence.  One article suggests that: “If the Declaration of Independence were written today, it likely would be composed on a computer, with the drafters’ words stored in an electronic file as a series of ones and zeros. That file likely would contain a host of data about the document, including information about its author and editors; dates created, accessed, edited, e-mailed, or printed; file name, size, and type; file storage or location; and possibly revisions or comments, especially if the drafters used ‘track changes.’”  Peter S. Kozinets, “Access to Metadata in Public Records: Ensuring Open Government in the Information Age,” Communications Lawyer, July 2010, at 1.

If that document were requested under Maryland’s PIA, all of that information could be scrubbed.

Metadata is Discoverable in Civil Litigation

Historically, in civil litigation there was a presumption against production of metadata.  Civil litigators were concerned that production of hidden data could have negative consequences.

That changed after an influential Sedona Conference paper.  W. L. Wescott, III, “The Increasing Importance of Metadata in Electronic Discovery,” 14 Rich. J. L. Tech. 10 (2008).

Today, metadata is routinely exchanged in civil discovery and the Maryland Rules permit a requesting party to specify the form requested. The reason is important:  “Metadata sheds light on the origins, context, authenticity, reliability and distribution of electronic evidence, as well as providing clues to human behavior. It’s the electronic equivalent of DNA, ballistics and fingerprint evidence, with a comparable power to exonerate and incriminate.”  Craig Ball, Microsoft Word – Moving Past Data about Data.doc (craigball.com) (2005), 2.  Further, there is no advantage to producing a scrubbed, static document.  Craig Ball, The Case for Native, I Swear | Ball in your Court (craigball.net) (2020).

Under the PIA, Custodians Have the Unilateral Right to Scrub All Metadata

Under the Maryland PIA, metadata is not a “public record.”  In fact, the Maryland Attorney General’s Manual states that metadata can be removed “regardless of whether the metadata is otherwise exempt from disclosure.”  PIA Manual at 6-3. The Attorney General wrote that “[t]he invisible nature of metadata has made it a matter of concern to custodians.”  Id.

Although the PIA broadly defines “public records” that are subject to inspection upon request, it also states that: “A custodian may remove metadata from an electronic document before providing the electronic document to an applicant by: (i) using a software program or function; or (ii) converting the electronic document into a different searchable and analyzable format.”  GP §4-205(c)(3).

The PIA defines “metadata” as “information, generally not visible when an electronic document is printed, describing the history, tracking, or management of the electronic document, including information about data in the electronic document that describes how, when, and by whom the data is collected, created, accessed, or modified and how the data is formatted.”  GP §4-205(a)(1).

“Metadata” does not include “(i) a spreadsheet formula; (ii) a database field; (iii) an externally or internally linked file; or (iv) a reference to an external file or a hyperlink.”  GP §4-205(a)(2).[1]

Within that definition, the custodian of public records has the absolute right to scrub all metadata before disclosing a public record.  This provision permits removal of “MAC” metadata – modified, accessed, or created data – as well as the author’s name, editing time, and other non-confidential, and sometimes important, information.

The Attorney General’s Manual states that the legislative goal was to provide the requestor with a usable electronic copy “and, at the same time, to provide some comfort to a custodian who wishes to avoid the inadvertent production of exempt materials in invisible metadata.” Id. at 6-4.

While the statute and the Attorney General’s Manual are silent on this point, it appears that a public agency is also permitted to bill a requestor for the time and cost of scrubbing metadata. See, Baltimore Police Dept., 2023 WL 5616318 at *2 (discussing redaction).

Thus, a requestor often receives only an edited, partial, and “dumbed down” version of the public record.  And, if the requestor can be billed for the costs of the scrubbing process, the requestor must pay more, while receiving less.

The Unilateral Right to Remove Metadata Should be Reconsidered

I suggest that a better mousetrap would, at a minimum, be to make a decision to remove metadata a topic for discussion among the requestor and the public agency. Metadata may be important to some requestors and unimportant to others.  However, giving the agency unilateral power to decide does not appear to be consistent with the purposes of the sunshine law.  For example, the Kozinets article explains:

“Metadata also can reveal the influence of special interests on official conduct. Illustratively, in 2004, California’s then attorney general, Bill Lockyer, circulated a letter castigating peer-to-peer file-sharing software as ‘a dangerous product.’ Examination of the properties section of the document showed that one ‘stevensonv’ had written it. Vans Stevenson, a senior vice president of the Motion Picture Association of America, which vigorously opposed peer file sharing, later said that he had provided some input regarding the letter but had not written it.”

In short, the metadata showing the author was important.

Another example is the infamous “dodgy dossier” that led up to Britain’s involvement in the Iraq war.  “Analysis of hidden information in the so-called Iraq ‘dodgy dossier’ showed, among other things, the names of the four civil servants who worked on it.”  M. Ward, BBC NEWS | Technology | The hidden dangers of documents (Aug. 18, 2003).  “Hidden data in the UK government’s ‘Dodgy Dossier,’ the document that helped propel the country into war, revealed a student paper was the source of the document.” S. Smull,  Hidden Content In Your Documents: What You Don’t Know Can Be Dangerous (ccbjournal.com)(Oct. 4, 2011).

If that dossier had been produced under the MPIA, the metadata could have been scrubbed.

Maryland’s metadata exception was added to the PIA almost a decade ago.  Acts 2014, c. 94, §2 (effective Oct. 1, 2014).  “While common sense does not change, common human experience does. A technical marvel of an earlier time may become the everyday tool of the contemporary person.”  Johnson v. State, 457 Md. 513, 517 (2018)(significance of GPS data).

Times have changed: “In today’s world of electronically stored information, it makes no sense to convert electronic formats to TIFF images considering the information that’s lost and the severe burden and added expense so-called TIFF+ productions impose on requesting parties.”  Craig Ball,  2020-08-25_anonymized-ball-declaration.pdf (wordpress.com).

It is often not difficult to produce metadata. For example, Microsoft Outlook can easily export emails to a PST file, with metadata.

It is difficult to imagine why the author, as shown in the metadata of a Microsoft Word  or Excel document, is not a disclosable public record.  The same is true of “MAC” metadata.  Why should a custodian be permitted to remove the “date created” from a public record?

However, given the complexity of State and local government, as well as limits on resources, this should not be a “one size fits all” question.

Metadata could be important to a requestor.  EXIF data might show where, when, and how critical photographs were taken and if they were modified. However, a custodian can remove it.

“Metadata can verify the authenticity and integrity of a public record, reveal what officials knew about critical actions or decisions and when they knew it, and render intelligible vast storehouses of government data that would otherwise be useless when separated from their metadata.”   Kozinets, “Ensuring Open Government in the Information Age,” Communications Lawyer, July 2010, at 1

Or, metadata might be unimportant to others.  In many PIA requests, the requestor may seek only a few documents and may not need metadata for, for example, ingestion into a litigation review platform.  Similarly, metadata may be unnecessary in a request for public policy documents or legislative histories.

Further, context may be a factor.  Requestors, custodians, and government entities, ranging from State to local government, all have varying levels of sophistication and information technology systems, in addition to differing needs. A requestor may lack the tools to review metadata.

Given the many variables, instead of unilateral and unlimited power to scrub metadata, it may be reasonable to make the production of metadata – and cost sharing – negotiable in response to public records requests.  That is what is done in civil discovery.  It would, however, undoubtedly raise overburden concerns among government agencies that are struggling with tight budgets and limited personnel.

However, this suggestion should not necessarily overburden public agencies.  While the authorities and statutes are far from uniform, many other States consider metadata part of a public record.  For example, “embedded metadata is an inherent part of a public record maintained in an electronic format….”  Silverman v. Arizona Health Care Cost Containment Sys., 532 P.3d 762, 766 (Ariz. Ct. App. 2023).  “[A]n electronic version of a record, including its embedded metadata, is a public record subject to disclosure.”  Thurura v. Washington State Dep’t of Corr., 15 Wash. App. 2d 1047 (2020), quoting O’Neill v. City of Shoreline, 170 Wn.2d 138, 147, 240 P.3d 1149 (2010). “When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page.”  Lake v. City of Phoenix, 222 Ariz. 547, 550, 218 P.3d 1004, 1007 (2009).

Naturally, if metadata contains substantive information that cannot or should not be disclosed under a PIA request, that metadata is not part of the disclosable public record.  However, most metadata is computer generated and should not present that issue.  For example, it appears unlikely that metadata that “describes how, when, and by whom the data is collected, created, accessed, or modified and how the data is formatted” – the metadata that may be scrubbed under  GP §4-205(a)(1) – presents a significant risk of improper disclosure.

WAIVER OR APPORTIONMENT OF COSTS

The Maryland Supreme Court has spoken definitively and recently regarding cost waiver requests under the PIA.  Baltimore Police Dep’t v. Open Just. Baltimore, 2023 WL 5616318 (Md. Aug. 31, 2023):

“For more than 40 years, the Maryland Public Information Act (the ‘MPIA’ or the ‘Act’) has allowed records custodians, in certain circumstances, to grant requests for waivers of fees to search for, prepare, and produce records sought under the Act. The current version of the MPIA’s fee waiver provision states, in part, that an official custodian may grant a requested fee waiver if, ‘after consideration of the ability of the applicant to pay the fee and other relevant factors, the official custodian determines that the waiver would be in the public interest.’ Md. Code Ann., General Provisions (‘GP’) § 4-206(e) (2019 Repl. Vol.)….  For the purpose of acting on an applicant’s request for a fee waiver under the MPIA, the Act vests official custodians with discretion to determine which factors are relevant to a public interest determination (in addition to the applicant’s ability to pay and whether the public would benefit from disclosure of the requested records). The official custodian also has discretion to balance all relevant factors and determine whether it would be in the public interest to waive some, all, or none of the fees to comply with a public information request. After concluding that analysis, if the custodian determines that it would be in the public interest to grant a full or partial waiver of the fees, the custodian has no additional discretion to deny such a waiver.”

In civil discovery, the general rule is that each party bears its own costs.  However, Md. Rule 2-403 (protective orders), provides that, on motion, a court “may enter any order that justice requires to protect a party or person from … undue burden or expense,” including “that the discovery may be had only on specified terms and conditions, including an allocation of the expenses….”

While the factors considered differ, both the PIA and the discovery rules permit cost shifting or waivers where factually appropriate.  And, as noted above, because there is a mutual duty to cooperate, if parties negotiate whether to produce metadata, that could be a factor in any fees charged and cost waiver discussions.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

See generally Metadata May Not Be a Public Record in Maryland – E-Discovery LLC (ediscoveryllc.com) (May 24, 2011).

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[1] For a discussion of hyperlinked documents in civil discovery, see “Modern Attachments,” ESI Protocols, & Second Chances.

COOPERATION IN REQUESTS FOR PUBLIC RECORDS

The duty to cooperate in civil discovery is well established. Rodriguez v. Clarke, 400 Md. 39, 60 (2007); see also J. Pike & J. Willis, “The New Maryland Deposition and Discovery Procedure,” 6 Md. L. Rev. 4, 32 (1941); M. Berman and P. Grimm, “The Duty to Cooperate in Discovery,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020); “The Sedona Conference Cooperation Proclamation,” 10 Sedona Conf. J. 331 (2009).

There is also a parallel duty under the PIA: “For the MPIA to work as the General Assembly intends, applicants and custodians must engage in collaborative efforts when the path to fulfillment of a records request presents obstacles.” Baltimore Police Dept., 2023 WL 5616318, at *4.  Thus, “an agency should in good faith provide some reasonable assistance to the requestor in refining the request for the records the requestor seeks.” Id. (citation omitted).

The Supreme Court of Maryland added: “We also trust that both parties will proceed on remand in the spirit of collaboration upon which the MPIA depends for successful resolution of complicated requests for records that implicate competing interests.”  Id. at *29.  It wrote in footnote 36: “We expect that the parties will engage in collaborative efforts with new verve, given the importance of the public records at issue.”

In that respect, the PIA and civil discovery are similar.

PERFECT SEARCHES ARE NOT REQUIRED

 It is well-established in e-discovery that perfection is not the standard; reasonableness is. See, e.g., What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?” (citing cases). “[T]he perfect is the enemy of the good,” P. Grimm, L. Bergstrom, and M. Kraeutter, “Federal Rule of Evidence 502: Has It Lived Up To Its Potential?,” 17 Rich.J.L. & Tech. 13, 41, quoting Voltaire.

The same is true in connection with agency searches for public records under the PIA.  The PIA Manual of the Maryland Attorney General states that: “The PIA does not address the issue of the adequacy of the agency’s search for records.”  The Attorney General wrote that agencies “may be required to conduct relatively broad and time-consuming searches.”

However, the PIA requires only a reasonable search “designed to locate all records responsive to the particular PIA request, not a perfect search that leaves no stone unturned.”  Glass v. Anne Arundel Co., 453 Md. 201, 233 (2017).   “The reasonableness of an agency’s search is to be measured prospectively by how the agency designed the effort to find responsive records, not retrospectively by its success in locating every responsive record.  A search may be reasonable and adequate without being perfect.”  Id. at 232 (emphasis added).  The Court wrote, in note 32, that an agency is not required to hire a computer expert and conduct a forensic examination to recover deleted records or search backup files, unless it both is able to, and does, access the records for its own purposes without extraordinary expense.

That reasonable, limiting principle should be applied in conjunction with the duty to cooperate.  The Glass Court wrote that, “if possible, an agency should in good faith provide some reasonable assistance to the requestor in refining the request for records the requestor seeks.  Of course, nothing requires the requestor to accept such assistance.”  Id. at 232.  The Court continued:

“In practice, a productive response to a PIA request is often an iterative process in which the agency reports on the type and scope of the files it holds that may include responsive records, and the requestor refines the request to reduce the labor (and expense) of searching those records. When the requestor and agency work together, the process approximates the purpose and policy of the PIA. When they do not, what results is the requestor insisting on what, to the agency, is an unbounded and unreasonable search and the agency insisting on what, to the requestor, is an unbounded and unreasonable fee.”

Glass, 453 Md. at 233 (emphasis added).  While agencies generally lack litigation review platforms that can share “hit reports,” in regard to cooperating on searches, civil discovery and the PIA are mirror images.

Part III will address metadata, where there is wide gap between the PIA and civil discovery, and apportionment and waiver of costs.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE: D. Austin, Government Agencies Are Considering AI to Help with FOIA Requests (ediscoverytoday.com)(Aug. 4, 2023)(“’There is no way for FOIA to work in the future unless you can automate searching of the millions, hundreds of millions, billions of records that these government agencies hold,’ said Jason R. Baron, a University of Maryland information studies professor and leading expert on the use of artificial intelligence in government access.  ‘The problem is simply unsolvable without AI.’”);  I. Krier, “Shining a Light on Rattley: The Troublesome Diligent Search Standard Undercutting New York’s Freedom of Information Law,” 91 Fordham L. Rev. 681 (2022).

This is Part I of a three-part blog comparing disclosure of public records under the PIA and civil discovery under the Maryland Rules.

THE PURPOSES OF THE PIA AND CIVIL DISCOVERY

While both are disclosure provisions, the purpose of the PIA is “different from that of the discovery rules….”  Hammen v. Balt. Co. Police Dept., 373 Md. 440, 454 (2003).

The PIA is a sunshine law.  Under the PIA, “all persons” are permitted access to public records.  The act has a broad remedial purpose and inspection of requested public records should be permitted with the “least cost and least delay….”  Baltimore Police Dep’t v. Open Just. Baltimore, 2023 WL 5616318, at *2 (Md. Aug. 31, 2023).

Under the Maryland discovery rules, only litigants have the right to discovery.  The purpose is to eliminate “as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation.” Rodriguez v. Clarke, 400 Md. 39, 57 (2007)(cleaned up).

RELATIONSHIP OF THE PIA AND CIVIL DISCOVERY RULES

In Maryland civil lawsuits, litigants are permitted discovery of facts relevant to the subject matter of the action.  Md. Rule 2-402(a).  However, that Rule does not apply to the PIA. “We hold that, absent a statute to the contrary, the rules of discovery applicable to circuit court proceedings are not, generally, applicable in respect to MPIA proceedings.”  Hammen, 373 Md. at 453.

The Maryland Attorney General’s position is: “Just as the PIA does not narrow the scope of discovery, neither does the PIA expand it.” See Attorney General’s PIA Manual at 3-56.  A public record that is disclosable under the PIA may not be discoverable in litigation, and vice versa.

On the one hand, a person may obtain through a PIA request public records that are not available through civil discovery in litigation. Hammen, 373 Md. at 440, passim (surveillance video in tort).

On the other hand, the PIA’s exceptions to disclosure do not create a privilege to object to production in civil litigation.  Mezu v. Morgan State Univ., 269 F.R.D. 565, 576 (D. Md. 2010); accord Maryland Restorative Just. Initiative v. Hogan, 2018 WL 5026369, at *3 (D. Md. Oct. 17, 2018);  Monzon-Alvarado v. United States, 2013 WL 6054457, at *2 (D. Md. Nov. 14, 2013); McDonnell v. Hewitt-Angleberger, 2012 WL 6088830, at *2 (D. Md. Dec. 5, 2012); Shriner v. Annapolis City Police Dep’t, 2012 WL 959380, at *3 (D. Md. Mar. 19, 2012).

The scope of the two processes differs.  The PIA applies to all “public records,” however, a public record that is not relevant to the subject matter of the action is not discoverable in civil litigation.  See Md. Rule 2-402(a).  If the cost is disproportionate, or if the record is not reasonably accessible due to undue burden or cost, a document is, absent a court order, not discoverable under that Rule, even if it is a disclosable “public record” under the PIA.

There may be, however, room for discretion that could create some overlap.  See generally the Attorney General’s PIA Manual at 3-54, et seq. (“Maryland courts have sometimes held that the fact that a record is exempt from disclosure under the [PIA] is relevant to a record’s discoverability.”).  Mezu states that:  “At most, [the PIA] could be used as a basis to seek a protective order under Rule 26(c), to ask the Court to impose conditions regarding the production of records within the scope of the MPIA that would adequately address any confidentiality concerns.” Mezu, 269 F.R.D. at 576–77.

Part II will address cooperation and searching.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.