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Big victory on open records for members’ coalition

Read more at Carroll County Times

Maryland Media Coalition Wins Access to Officials' Email Address Lists


By Charles D. Tobin
A coalition of media companies -- the Carroll County Times, Washington Post, Baltimore Sun and Scripps Media's WMAR-TV -- won a novel victory this month under the Maryland Public Information Act (MPIA) that will help prevent officials from using email to conduct government business outside of the sunshine.
 
A judge on Jan. 16 ordered Carroll County's commissioners to produce to the newspapers and TV station all email distribution lists that they use to send messages to select groups of supporters. 

This decision will help MDDC Press Association members in several ways: (1) It serves as helpful precedent for access to email address lists in Maryland governments' hands; (2) It strongly reaffirms the long-standing principle that, absent a specific exemption in MPIA, all government records are presumptively open; and (3) By permitting the media coalition to maintain a countersuit, and awarding the coalition a judgment, the decision helps prevent local governments from racing to the courthouse first in an effort to cut off the media's and the public's right to seek legal fees in MPIA litigation.
 
The lawsuit began after Carroll County Times reporter Christian Alexandersen in February 2013 requested all of the commissioners' email distribution lists.  For example, Commissioner Richard Rothschild maintains a distribution list under an email group "Conservative Counties," and Commissioner Robin Bartlett Frazier maintains a list called "Republic Women's Club of Taneytown."  Alexandersen asked to see the email addresses on these and all other lists each commissioner has compiled.
 
Rather than comply, four of the commissioners filed a petition against Alexandersen in Carroll County Circuit Court. They asserted that the release of the email addresses on the list would expose people to identity theft and computer malware, and would discourage people from communicating with government by email.  A fifth commissioner disagreed with the board's decision, said that the MPIA required the release, and turned his lists over to the newspaper.
 
The county and the four commissioners brought the petition under §10-619 of the MPIA, which permits municipalities to temporarily deny records requests if they go to court within 10 days and can prove the release would cause "substantial injury to the public interest."  The provision is very rarely invoked.  Following that start to the litigation, the Washington Post, Baltimore Sun and WMAR-TV sent the county identical requests, and the county filed petitions against them as well.
 
The media coalition countersued under the conventional provisions of MPIA.  They asked the judge to order release of the lists in all computer formats after the county took the position that the media's requests only included lists maintained in Outlook, and not in Word or Excel.  The group also asked for an award of their legal fees, which is a discretionary call by the judge in MPIA litigation.
 
In his 20-page ruling, retired Howard County Circuit Judge Dennis M. Sweeney, who was specially assigned after all local judges recused themselves, rejected the county's arguments and awarded summary judgment on the media coalition's counterclaims. As to potentially malicious use of the email addresses, he noted the requests came from "four respected media organizations engaged in traditional journalistic activities regarding Maryland government," making it "highly unlikely" they would help others "engage in the potentially deleterious activities" that worried the commissioners.  He further noted that anyone concerned about the exposure of their email addresses could always use telephone calls, personal visits and regular mail to communicate with the government.  And while he found that "the overall public interest concerns raised by" commissioners were "not trivial," he firmly ruled that the county had not met its burden to show any of them rose to the level of a "substantial injury to the public interest."
 
Judge Sweeney noted that the General Assembly has considered, and failed to enact, three bills in the past couple of years that would have restricted or completely exempted email addresses from MPIA.  To the court, this showed the issue neither "novel nor unusual," and that the legislature has not overlooked it.

Finally, he held that the public need not await the outcome of a government's petition before availing itself of the right to bring lawsuits for the release of records, and for attorney's fees. 

The court gave the commissioners 20 days to release the email address lists in all formats, and it asked the parties to coordinate on a briefing schedule on the media coalition's request for legal fees.
 
Charles D. Tobin, Drew E. Shenkman, and Cheryl A. Feeley, of Holland & Knight LLP in Washington, D.C., represented the media coalition.  Holland & Knight also serves as hotline counsel for the Association.
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