In Re Ferndale Volunteer Fire Dept

Key Facts

Issues

• Whether the County waived its assertion of executive privilege by not raising it in the custodians' affidavits or Vaughn index, and whether the circuit court properly evaluated the executive privilege claim under Hamilton and Washington Post standards.
• Whether the circuit court erred in approving redactions under the deliberative process privilege when the County also asserted executive privilege, and whether the court properly evaluated the privilege on an item-by-item basis.
• Whether the circuit court erred in finding that the County properly redacted fifteen e-mails containing confidential executive discussions of an advisory nature, and whether the court properly balanced the need for confidentiality against the litigant's need for disclosure.
• Whether the circuit court's order approving the redaction of fifteen e-mails under the Maryland Public Information Act is appealable as an order refusing to grant an injunction under CJP § 12-303(3)(iii), given that the order is interlocutory because the claim for damages remained pending.

Holdings

Remedies

Legal Principles

• There is a strong presumption in favor of disclosure under the MPIA, such that exemptions must be applied narrowly. A custodian cannot invoke a blanket exemption to shield an entire file if only part of the file would suffice. Records must be reasonably severable, and any disclosable portions must be permitted for inspection. The executive privilege is for the benefit of the public, not officials, and is not absolute.
• Under the MPIA, the custodian has the burden of sustaining a decision to deny inspection of a public record. The agency must make a careful and thoughtful examination of each document to determine whether it meets exemption criteria. The court must balance the government's need for confidentiality against the litigant's need for production. A formal claim of privilege is required, but need not be supported by affidavit or Vaughn index.
• The deliberative process privilege (GP § 4-344) protects pre-decisional deliberative communications within agencies that would not be available to a private party in litigation. Records must be interagency or intra-agency memorandums or letters, and disclosure must be contrary to the public interest. The executive privilege protects confidential advisory and deliberative communications to government officials. Both privileges require item-by-item analysis rather than blanket withholding.
• An order refusing to grant an injunction under the Maryland Public Information Act is immediately appealable as an interlocutory order under CJP § 12-303(3)(iii). An order that denies a request to enjoin an agency from withholding records effectively constitutes a refusal to grant an injunction, even if not explicitly stated. The court held that the order approving redactions of fifteen e-mails was appealable because it effectively denied Ferndale's request for injunctive relief to enjoin the County from withholding records.

Precedent Name

• Schisler v. State
• Howard County v. Eberhart
• Office of State Prosecutor v. Judicial Watch, Inc.
• Hamilton v. Verdow
• Huertas v. Ward
• Cranford v. Montgomery County
• Administrative Office of the Courts v. Abell Foundation

Cited Statute

• Deliberative process privilege exemption
• Executive privilege exemption under MPIA
• Interlocutory appeal from refusal to grant injunction
• Maryland Public Information Act
• Judicial review and remedies under MPIA

Judge Name

• Chief Justice Wells
• Judge Tang
• Judge Leahy

Passage Text

• ORDER OF JUNE 22, 2023 THAT EXHIBITS 1.2, 1.6, 2.3-2.5, 2.7-2.10, 3.1.1, 3.1.3, 3.1.4, 3.2, 3.3.1, AND 3.4 WERE PROPERLY WITHHELD BY APPELLEES VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
• Although the part of the order in question did not explicitly deny an injunction, it effectively constituted such a denial by stating that the fifteen e-mails at issue were 'properly withheld' by the County. Therefore, this refusal to grant an injunction falls within the scope of CJP § 12-303(3)(iii) and is appealable.
• The order appealed from was interlocutory, rather than a final judgment, because the claim for damages remained pending when the appeal was noted. However, the aspect of the order that approved the redaction of fifteen e-mails is appealable under Maryland Code, Courts and Judicial Proceedings Article ('CJP') § 12-303(3)(iii) as an order refusing to grant an injunction.