A.C. v. Office of the Attorney Gen.

A.C. v. OFFICE OF THE ATTORNEY GENERAL

No. 791

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

February 13, 2018

Circuit Court for Baltimore City

Case No. 24-C-15-005592

UNREPORTED

Eyler, Deborah S., Graeff, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

A.C., the appellant, a former employee of the Maryland Office of the Attorney General ("OAG"), the appellee, challenges an order of the Circuit Court for Baltimore City affirming the administrative decision by the Chief Deputy Attorney General (the "Agency") denying her request to inspect and correct certain public records in the custody of the OAG.

The appellant presents four questions for review, which we have reworded:

I. Did the Agency err by ruling that the OAG properly denied her request for eighteen documents that the OAG withheld based on exceptions under the Maryland Public Information Act?

II. Did the Agency err by ruling that the OAG properly denied her request to correct public records under the Maryland Public Information Act?

III. Did the Agency err by denying her request for an in camera inspection of the eighteen withheld documents?

IV. Did the Agency err by ruling that the OAG acted in good faith and produced all responsive documents?

For the following reasons, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

The appellant, an African American female, was formerly employed as a Special Assistant Attorney General for the OAG in the Health Club Registration Unit of the Consumer Protection Division ("CPD"). She had worked in that capacity for seven years. On March 3, 2012, the OAG gave the appellant an ultimatum—she could either resign or be terminated. She was given twenty-four hours to make a decision. The appellant did not give the OAG an answer, however, and on March 4, 2012, Attorney General Douglas F. Gansler sent her an official termination letter.

On June 21, 2012, the appellant's attorney sent a letter to the Attorney General appealing the termination and asserting that race had played a role. A week later, the appellant's attorney sent a second letter to the Attorney General, requesting that the OAG preserve all "pertinent evidence" in its possession for trial. By letter of July 19, 2012, the OAG denied the appellant's challenge to her termination as untimely.

On October 30, 2012, the appellant filed a complaint with the Maryland Commission on Civil Rights ("MCCR"), alleging that she had been terminated based on her race. In response, the OAG provided the MCCR with documents and a written position statement. Ten months later, on August 20, 2013, the MCCR held a fact-finding conference. According to the appellant, she learned for the first time at that conference that the OAG had received written complaints about her work.

On September 9, 2013, a few weeks after the fact-finding conference, the appellant submitted a Maryland Public Information Act ("PIA") request to the OAG seeking "a copy of all records in [its] custody and control contained in [her] personnel file and all documents pertaining to [her] discharge from the position of Assistant Attorney General[.]" On October 7 and October 24, 2013, the OAG provided the appellant with documents in response. It withheld certain documents from disclosure, however, claiming that several exceptions under the PIA applied. A month later, the appellant wrote to the OAG seeking production of the documents it had withheld and correction and removal of three documents from her personnel file. She alleged as to the latter documents that they were"both false and misleading."¹ By letters dated January 7, 2014, the OAG denied her request to turn over the withheld documents, as they were excepted from disclosure, and denied her request to correct/remove the three documents from her personnel file, stating that after an inquiry the OAG had found the content of the documents to be accurate.

On February 12, 2014, the appellant filed an administrative appeal of the OAG's partial denial of her PIA request with the Office of Administrative Hearings.² After a motions hearing, the administrative law judge ("ALJ") directed that the OAG file a more descriptive Vaughn index of the eighteen documents withheld.³ In response, the OAG filed a nine-page amended Vaughn index ("AVI") listing for each of the eighteen documents: the date of the document, the author(s), the recipient(s), a description of the document, the subject of the document, and the privilege/PIA exception claimed. On June 2, 2014, after a hearing on several pending motions, the ALJ issued an order that among other things denied the appellant's request for an in camera review of the eighteen withheld documents.

On June 9-11, 2014, the ALJ held a merits hearing at which six witnesses testified and the parties submitted close to 100 documents. The witnesses included: the appellant; Beverly Pivec, the OAG's Director of Administration; Yolanda Colkley, the OAG's Fair Practices Coordinator; Steven Sakamoto-Wengel, the OAG's Consumer Protection Counsel for Regulation, Legislation, and Policy and a prior supervisor of the appellant; Philip Ziperman, Deputy Chief of the CPD and a prior supervisor of the appellant; and William Gruhn, Chief of the CPD and Ziperman's supervisor.

On July 11, 2014, the ALJ filed a 46-page proposed decision, making the following pertinent findings of fact. On May 3, 2012, the appellant received a telephone call from Colkley informing her that she was to meet with Pivec and Katherine Winfree, the OAG's Chief Deputy. The appellant refused to meet with them and said she might need an attorney. According to the appellant, Winfree subsequently called to inform her that her "services were no longer required" and told her to decide whether she wanted to resign or be terminated. The following day, after not receiving a response from the appellant, Attorney General Gansler sent the appellant the letter of termination.

The ALJ also found that upon receiving the appellant's PIA request, Pivec spoke with several OAG employees who she thought would have responsive documents, including: Sakamoto-Wengel, Ziperman, Gruhn, Colkley, and Winfree. The employees searched their files and provided Pivec with responsive documents in their possession. Pivec and Colkley compiled these documents and used them to respond to the appellant's PIA request.

The ALJ determined that the OAG had acted thoroughly and in good faith in gathering the documents in response to the appellant's PIA request. He analyzed each of the withheld documents, the OAG's claimed exception from disclosure, and the parties' arguments. In conclusion, the ALJ recommended affirmance of the OAG's decision to withhold the eighteen documents based on lawful exceptions recognized in the PIA. He also recommended affirmance of the OAG's decision to deny the appellant's request to correct/remove the three documents from her personnel records.

On August 11, 2014, the appellant filed exceptions to the proposed decision with the Agency. Oral argument was held on July 14, 2015.

On October 1, 2015, the MCCR issued a written decision on the appellant's discrimination complaint, making a "no probable cause" finding on her allegation that her termination had been based on race. The MCCR stated that the appellant's job performance had been "less than satisfactory" and that she had failed to put forward any evidence of discriminatory conduct toward her based on race.

On October 13, 2015, the Agency issued a 23-page final decision fully adopting the ALJ's findings of fact and adopting the ALJ's legal analysis and conclusions, with additional analysis of its own. The Agency upheld the OAG's decision to withhold the eighteen documents and not to correct/remove the three documents from the appellant's personnel file. The Agency also found that the ALJ had acted within his discretion bydenying the appellant's request for an in camera review of the eighteen withheld documents.⁴

In the Circuit Court for Baltimore City, the appellant filed an action for judicial review, challenging the Agency's final decision. As noted, the circuit court upheld the decision.

DISCUSSION

I.

The appellant contends the Agency erred by upholding the OAG's denial of her request for the eighteen withheld documents based on certain PIA exceptions. The OAG responds that it properly withheld the documents under several PIA exceptions, including the MCCR confidentiality statute for preliminary investigations; the work product privilege; the executive deliberative process privilege; and the attorney-client privilege.

Standard of Review

When reviewing a decision by the circuit court in an action for judicial review of an administrative agency's decision, "we review the decision of the agency rather than that of the circuit court." Doe v. Allegany Cty. Dep't of Soc. Servs., 205 Md. App. 47, 54 (citation omitted), cert. denied, 427 Md. 609 (2012). We review the agency's decision to determinewhether it had an adequate factual basis to support its findings and whether the administrative decision was premised upon an erroneous conclusion of law. Comptroller of Treasury v. Immanuel, 216 Md. App. 259, 266 (2014) (citation omitted).

The Maryland PIA

The Maryland Public Information Act, enacted in 1970, is currently codified at Md. Code (2014), sections 4-101 to 4-601 of the General Provisions Article ("GP").⁵ The PIA states generally 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" and provides a right to inspect and copy public records with "the least cost and least delay[,]" subject to certain enumerated exceptions. See GP §§ 4-103 and 4-201. A "public record" is...