Civil Rights Organizations Urge Maryland Appeals Court to End Exorbitant Fees for Government Record Requests
On behalf of the ACLU of Maryland, the Public Justice Center, and Washington Lawyers’ Committee, Zuckerman Spaeder LLP has filed an amicus brief asking the Maryland Court of Appeals to prevent state and local agencies from charging excessive fees when public interest organizations request government records. Maryland’s Public Information Act (PIA) says that fees should be waived when the request is in the public interest, but agencies are increasingly and routinely denying waivers from organizations seeking to advance government accountability.
The PIA permits the official custodian of a government record to charge a “reasonable fee” for providing the record to an outside party. However, the law also provides for waiving the fee if the custodian determines that doing so is in the public interest. And Maryland courts have repeatedly instructed that a government agency’s denial of a public interest fee waiver is inappropriate where the agency fails to consider all relevant factors.
The amicus brief explains that the text and history of the PIA reveal that “public interest” essentially means there is no commercial purpose behind the request or it is not the primary purpose. The brief goes on to say that the General Assembly was “not only drawing a line about fees. It was enacting a policy that agencies should not use fees to obstruct the public from accessing government records.” According to the amici, agencies are not abiding by this directive and are abusing their discretion.
The brief cites a report from the Maryland Public Access Ombudsman and the Public Information Act Compliance Board, which found that, during the 2019 reporting period, state agencies denied fee waivers nearly 80 percent of the time. The two agencies with the highest number of record requests—the Maryland State Police and the Department of the Environment—denied waiver requests 90 and 96 percent of the time, respectively. When the fee waiver is denied, the cost can be prohibitive. Public interest organizations are being charged tens, or even hundreds, of thousands of dollars to access records about the operations and activities of the government.
Summarizing the significance of the issue, the brief states, “The General Assembly enacted the PIA…to create the transparency necessary to ensure accountability of public agencies. That entire legal structure begins to crumble if government agencies are permitted to erect barrier after barrier when nonprofit public interest organizations, like Amici and Appellee, seek access to public records in furtherance of their missions.”
The amici go on to ask the court to ensure that fee disputes are adjudicated under a balanced legal standard. The standard endorsed by the lower court says that the courts should only reverse fee waiver denials if the appellant can show that the government’s action was “arbitrary and capricious.” The amici call for the use of a “de novo” standard, in which the courts would consider the challenge without giving deference to the government’s reasoning for the denial. The brief states that “the evidence of legislative intent points decisively in favor of a de novo standard,” which is the standard used for disputes over federal Freedom of Information Act (FOIA) fee waiver requests.
The amicus brief was filed in support of the appellants in Baltimore City Police Department, et al. v. Open Justice Baltimore. Zuckerman Spaeder Baltimore-based partner Adam Abelson and associate Samantha Miller prepared the brief on behalf of the amici.