Lamson v. Montgomery Cnty.

460 Md. 349

190 A.3d 316

Bernadette Fowler LAMSON

v.MONTGOMERY COUNTY, MD

No. 67, Sept. Term, 2017

Court of Appeals of Maryland.

July 31, 2018

Argued by Timothy F. Maloney, Greenbelt (Alyse L. Prawde, Joseph, Greenwald & Laake, P.A., Greenbelt, MD), on brief, for Petitioner

Amicus Curiae Montgomery County Career Fire Fighters Association, International Association of Fire Fighters, Local 1664, Montgomery County Government Employees Organization, United Food and Commercial Workers Local 1994 and Fraternal Order of Police, Montgomery County Lodge 35 in Support of Petitioner: Molly A. Elkin, Esquire, Woodley & McGillivary LLP, 1101 Vermont Avenue, NW, Suite 1000, Washington, DC 20005, Carey R. Butsavage, Esquire, Butsavage & Durkalski, P.C., 1920 L Street, N.W., Suite 301, Washington, DC 20036, James F. Shalleck, Esquire, 9408 Bethany Place, Montgomery Village, MD 20886

Argued by Erek L. Barron, Bethesda (Tiffany Releford and Allen E. Honick, Whiteford, Taylor & Preston, L.L.P., Bethesda, MD), on brief, for Respondent

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Hotten, J.

The issue before us is a request for the release of notes containing possible personnel information, relating to the performance of Bernadette Fowler Lamson ("Petitioner") as an employee of the Montgomery County Attorney's office. Petitioner filed a Maryland Public Information Act ("MPIA")¹ request relative to her personnel file, seeking the disclosure of supervisory notes that were withheld by her employer, Montgomery County ("Respondent") and her supervisor, Silvia Kinch ("Ms. Kinch"). The disputed notes are divisible into two separate categories. The first consists of three pages of notes that were removed from Petitioner's personnel folder prior to its disclosure and the second set consists of notes that are contained in a personal journal in the exclusive possession and control of Ms. Kinch. With regard to both, Petitioner asserts that Respondent improperly withheld the notes when responding to her MPIA request. In response, Respondent contends that the notes are privileged, non-public information. Petitioner now seeks review of the grant of summary judgment in Respondent's favor, to determine whether the disputed notes were subject to disclosure under the MPIA. For the reasons discussed infra, we shall vacate the judgment of the Court of Special Appeals and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was an employee of the Office of the Montgomery County Attorney for over twenty years. During that time, she received "highly successful" reviews and top performance ratings. In 2015, Ms. Kinch downgraded Petitioner's performance rating from "highly successful" to "successful," which prevented her from receiving a 20-year, 2% performance bonus. Prompted by the negative rating, Petitioner requested access to her personnel file on September 1, 2015, which was provided after three pages of supervisory notes were redacted. On October 8, 2015, after receiving this response, Petitioner filed a MPIA request specifying 16 categories of public records, including the missing notes. Specifically, Petitioner requested the following categories of information:

1. Any and all supervisory notes or other materials written, authored or prepared by Silvia Kinch, John Markvos and Marc Hansen;

2. Supervisory notes removed from Ms. Lamson's supervisory file by Ms. Kinch on or about September l, 2015, including all notes removed by Ms. Kinch prior to providing Ms. Lamson a copy of her supervisory file;

3. Any and all investigatory files, inquiries, negative statements, or complaints in which Ms. Lamson is the subject and/or is discussed therein;

4. Ms. Lamson's proposed transfer from full time status to part time status;

5. Ms. Lamson's move from her 4th floor office to a 3rd floor office in the Executive Office Building ("EOB");

6. Ms. Lamson's transfer from the Office of the County Attorney ("OCA") Division of Human Resources to the Division of Finance and Procurement or any other OCA division;

7. Ms. Lamson's removal as counsel to the Montgomery County Fire and Rescue Service ("MCFRS");

8. Placement of Jodi Schultz or other OCA staff attorney assigned to MCFRS matters - except workers' compensation cases;

9. Ms. Lamson's proposed change in duty assignment from MCFRS to the Animal Matters Hearing Board;

10. Ms. Lamson's FY 2015 performance appraisal;

11. Copy of statement from William "Bill" Scott complaining about Ms. Lamson and all records discussing Mr. Scott's complaints about Ms. Lamson;

12. Any and all e-mails or documents discussing Ms. Lamson between and/or among Marc Hansen, John Markvos, Silvia Kinch, Karen Federman-Henry and Ed Lattner from February 1, 2015 to the present;

13. Any and all e-mails or documents between and/or among Marc Hansen, John Markvos, Silvia Kinch, Ed Lattner, and Assistant Chief Ed Radcliff related to Ms. Lamson's MCFRS representation and/or agency assignment, duties, and/or responsibilities;

14. Requests, discussions and/or inquiries to conduct electronic surveillance and/or tracking on Lamson or other OCA staff members;

15. Any and all data gathered as a result of conducting electronic surveillance and/or tracking of Lamson or other OCA staff members; and

16. Communications with any other agency concerning Bernadette Lamson or any person including, but not limited to, the Board of Investment Trustees, Montgomery County Department of Corrections and Rehabilitation, Montgomery County Revenue Authority, Montgomery County Fire and Rescue Service, Montgomery County Office of Human Resources, and retirement agency.

On January 27, 2016, Respondent provided several responses to the MPIA request. Regarding request number one, Respondent asserted that:

First, while an employee such as Ms. Lamson may review her own personnel file under [Gen. Prov.] § 4-311^{[2 ]}, supervisory notes are not a part of an employee's personnel file under the County's personnel regulations. MCPR § 4-8^[3]("Supervisory notes are not considered official employee records and are not subject to review by the employee or others.").

Second, supervisory notes constitute "interagency or intra-agency letters or memoranda" under [Gen. Prov.] § 4-344 and are also shielded from disclosure by executive privilege and the Morgan doctrine.^{[ ]} These notes contain the mental impressions and reveal the internal deliberations of the writer, Ms. Lamson's supervisor. Inquiry into the mental processes of an administrative decision maker would be contrary to the public interest and inimical to the integrity of the supervisory process.

Respondent concluded by stating that the supervisory notes constitute attorney work product. Regarding the second request, Respondent reiterated the rationale advanced in request one. Regarding the remaining requests, Respondent either provided the documentation or denied the existence of the document.

Thereafter, Petitioner filed a Complaint on February 24, 2016 in the Circuit Court for Montgomery County, alleging that Respondent violated the MPIA, and requested that the court order the disclosure of all relevant documents. In response, Respondent asserted that both sets of notes were not personnel records and were privileged or confidential by law, privileged attorney-client documents, attorney work product, or not subject to disclosure because of executive privilege. Thereafter, Respondent filed a Motion to Dismiss, or alternatively, a Motion for Summary Judgment. On May 10, 2016, Petitioner filed a Motion for a Vaughn index,⁴ seeking judicial review of the requested documents. Respondent proposed instead that the court conduct an in camera review, contending that a Vaughn index was only appropriate when the documents are voluminous and suggested that an in camera review was more practical. On June 22, 2016, the trial court considered arguments and issued an oral ruling granting the Respondent's Motion to Dismiss. The court stated:

I find that all of these notes kept by Ms. Kinch that have been, the way it's been argued to me and briefed to me, are not public records and that they're supervisory notes. And they are not included in a personnel file. And they are exempted under the Montgomery County Code, which talks about supervisory notes that are excluded. And they're not governmental.

I don't want to get to the slope that you guys keep talking about being slippery. I just don't think that, I think a supervisor should be able to keep private notes under the law, and that's what we have here, and not explain to the whole world every time he or she does as to what's in them.

And I use the example that if, in fact, she confides in someone, whether it be a friend or whether it be a relative or even whether it be another employee, does that have to be disclosed? In other words, if the [Petitioner] says under Freedom of Information, have you ever made any derogatory statements to any personnel members for the Montgomery County? If she had to reveal that or he at any time, that[sic], I believe, would be an abomination of this rule. I don't believe the Legislature intended it to be that way. I think the Legislature intended that what's in your personnel file, and we all know what that means, don't put that in my personnel file or put that in my personnel file, things that are going to go with you, be used to evaluate you, and that work product or mental impressions or discussions or thought processes or even discussions among other supervisors are not intended under this act the way I see it.

As a result, the trial court concluded that an in camera review was not required, because the notes were not considered personnel records pursuant to Montgomery County Personnel Regulation § 4-8 (2001). Thereafter, Petitioner noted a timely appeal to the Court of Special Appeals.

The Court of Special Appeals issued its unreported opinion on August 25, 2017. See Lamson v. Montgomery Cty. , No. 892, Sept. Term 2016, (Md. Ct. Spec. App. Aug....