Wednesday, June 21, 2017

Amster v. Baker (Ct. of Appeals)

Filed: May 22, 2017

Opinion by: J. Adkins

Holding:  Commercial information is “confidential” and therefore exempt from disclosure under the Maryland Public Information Act (the “MPIA”) if it “would customarily not be released to the public by the person from whom it was obtained.”

Facts:  A developer submitted a zoning application to the Prince George’s Planning Board of Maryland-National Capital Park and Planning Commission (the “Commission”) to develop a certain tract of land for a mixed-use town center.  In connection with the planned development, the developer entered into a lease with a supermarket chain.  The developer voluntarily provided a redacted copy of the lease with the supermarket to the Prince George’s County Executive (the “County Executive”) to assist with ongoing discussions regarding the proposed development.  The plaintiff filed a MPIA request with the County Executive requesting a copy of the lease.  Such request was denied and plaintiff filed suit against the County Executive seeking access to the lease (the developer subsequently intervened as a defendant).  Applying the test established in Critical Mass Energy Project v. Nuclear Regulatory Commission (975 F.2d 871 (D.C. Cir. 1992)), and based in part on an affidavit from an employee of the developer that the contents of the lease were the product of “extensive confidential negotiations,” the circuit court granted the defendants’ motion for summary judgment finding the lease was “confidential commercial information.” On appeal, the Court of Special Appeals affirmed the circuit court’s grant of summary judgment and further held that confidential treatment of the lease had not been waived by the public disclosure of certain terms of the lease.

Analysis:  The MPIA grants a general right of access to records in the possession of the Maryland State and local governments, which is limited by numerous exemptions to the disclosure requirement.  A mandatory exemption to the disclosure requirement applies to any part of a public record containing any confidential commercial information.  Looking to federal courts’ interpretations of a similar exemption under the Federal Freedom of Information Act (the “FOIA”), the Court of Appeals declined to apply the two-part test established in National Parks and Conservation Ass’n v. Morton (498 F.2d 765 (D.C. Cir. 1974)) and instead upheld the circuit court’s application of the test established in Critical Mass, which held that commercial information voluntarily provided to the government is confidential, and therefore not required to be disclosed under the MPIA, if it “would customarily not be released to the public by the person from whom it was obtained.”  The Court of Appeals noted that in National Parks, the commercial information was provided to the government pursuant to statute, whereas in Critical Mass, and in this case, the commercial information was provided to the government voluntarily; therefore, the government interests at stake differed.  In the former situations, the government’s interest focuses on the effect of disclosure on its quality; in the later situations, the government’s interest is in ensuring continued available of the voluntarily disclosed commercial information, since the disclosing party may refuse further cooperation.  

Although the circuit court applied the correct test in granting summary judgment in favor of the defendants, the Court of Appeals vacated the summary judgment and remanded the matter back to the circuit court to conduct the necessary factual inquiry to determine whether all aspects of the lease were confidential and therefore exempt from disclosure under the MPIA.  The Court of Appeals highlighted that the disclosure requirements and exemptions under the MPIA apply to information, not documents, and therefore the circuit court needed to determine whether the lease contained any non-confidential information subject to disclosure, particularly because the defendants failed to demonstrate that the lease should be exempt from disclosure in its entirety because the developer had not demonstrated that it would not customarily disclose any contents of the lease.  Moreover, any information with respect to the lease that was already publically disclosed by defendants in other settings was not protected by the exemption for confidential commercial information.

The full opinion is available in pdf.

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