IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
_______________________________________________
September Term, 2019
No. 2457
._________________________________________________
JAAMI ALI
Appellant,
v.
MONTGOMERY COUNTY POLICE DEPARTMENT
Appellee
_________________________________________________
APPELLANT’S REPLY BRIEF
_________________________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
ACLU v. Leopold, 223 Md. App. 97, 123 (2015). 9
Attorney Gen. V. A.A. Co. School Bus, 286 Md. 324. 407 A.2d 749 7
Caffrey v. Department of Liquor Control for Montgomery County, 370 Md. 272, 299 (2002). 9
Cranford v. Montgomery County, 300 Md. 759, 771, 481 A.2d 221, 227 (1984) 8
Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 73, 716 A.2d 258, 262 (1998) 8
Green v. Nassif, 401 Md. 649, 655 (2007) 7
Kirwan v. The Diamondback, 352 Md. 74, 80-81, 721 A.2d 196, 199 (1998) 4, 7
Kline v. Fuller, 64 Md. App. 375, 385 (1985 9
Mercy Hosp., Inc. v. Jackson, 306 Md. 556, 561 (1986) 4
Office of State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 134, 737 A.2d 592, 601 (1999) 8
Office of the Attorney General v. Gallagher, 359 Md. 341, 343, 753 A.2d 1036, 1037 (2000) 8
Powell v. Md. Dep’t of Health, 455 Md. 520, 539 (2017) 4
State v. Dixon, 230 Md. App. 273, 277 (2016) 4
Statutes
GP § 4-301(a)(1) 8
GP § 4-301(a)(2) 8
GP § 4-301(a)(2)(ii) 8
GP § 4-301(a)(2)(ii). 6
GP § 4-301(a)(2)(iii), (iv) 8
GP § 4-362(d)(1) 4
GP § 4-362(d)(2) 9
Md. Code Ann., § 4-343 6
Other Authorities
Section 1.7 of Executive Order 135.26 9
Rules
MIPA Attorney General Rule 90 9
PRELIMINARY STATEMENT
Appellee’s assertion that Appellant’s case is moot is fundamentally flawed because the Appellee avoided issues that were brought by Appellant’s pleading. Notably, Appellee’s counsel’s November 19, 2019 response did not conclusively address all issues raised in Appellant’s pleading. A case is moot if “there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Powell v. Md. Dep’t of Health, 455 Md. 520, 539 (2017) (quoting Mercy Hosp., Inc. v. Jackson, 306 Md. 556, 561 (1986)); accord State v. Dixon, 230 Md. App. 273, 277 (2016). Appellant’s case cannot be considered moot since Appellee’s counsel failed to canvass all issues in Appellant’s pleading.
Appellee also alleges that the information sought by Appellant is privileged and/or prohibited by law. On the contrary, Appellant avers that she is not seeking personnel records, neither is she seeking medical records which under MIPA Attorney General Rule 90 is exempted information. Appellant further maintains that the information she seeks is publicly listed and is therefore not privileged. It is worth noting that “[t]he Maryland Public Information Act establishes a public policy and a general presumption in favor of disclosure of government or public documents.” Kirwan v. The Diamondback, 352 Md. 74, 80-81, 721 A.2d 196, 199 (1998).
Lastly, Appellee alleges that Appellant is not entitled to damages in the event this honorable court finds in favor of Appellant. On the contrary, Appellant avers that a court may award actual damages and statutory damages of up to $1,000 against a governmental unit if the court finds that a defendant knowingly and willfully failed to disclose a public record or part of a record that the person was entitled to inspect. GP § 4-362(d)(1).
ARGUMENT
-
THE CIRCUIT COURT’S DISMISSAL OF THE APPELLANT’S CLAIM SHOULD BE REVERSED.
-
APPELLANT’S CASE IS NOT MOOT
A case is moot if “there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Powell v. Md. Dep’t of Health, 455 Md. 520, 539 (2017) (quoting Mercy Hosp., Inc. v. Jackson, 306 Md. 556, 561 (1986)); accord State v. Dixon, 230 Md. App. 273, 277 (2016).
In the instant case, Appellant had asked the county’s MIPA Director, Mr. Patrick Lacefield what unit, civil servant title and division did the three officers in question work in. Counsel for the attorney responded with two of the three requests. The overall unit Vice Intelligence and the detective. EXHIBIT 1. In Appellant’s email, the request is broken into three parts:
- What is the Office? This question was not answered via MIPA request but through 2019 personal discovery and email response from counsel.
- What is the civil service title? This question was not answered via MIPA request but through 2019 personal discovery and email response from counsel.
- What is the unit the three individuals worked in? This question was not answered via MIPA, not through counsel but division is listed on website.
See EXHIBIT 2 (The fields that the plaintiff researched to have her questions answered). See also, EXHIBIT 10 (Appellee’s response to Appellant’s email, denying access to the requested information). When using DataMontgomery to search David Papalia the information the plaintiff sought was not there. EXHIBIT 3, 4, and 5.
Appellee’s Counsel’s November 19th, 2019 response did not address all the issues which were brought up in the Appellant’s pleading. The said Counsel chose to circumvent the subdivision question. She knowingly omitted that information. Additionally, the Appellant had questions about Lockheed Martin and the Marriott Hotel and none of those questions were answered by the counsel. As such Appellee showed prejudice which is a violation of MIPA rules on denying records. Accordingly, controversy still exists pertaining the unaddressed issues, and for that reason, the case is not moot.
With regards to the invoked Md. Code Ann., § 4-343, the Appellant provided enough evidence that the Appellant was surveilled and that a causal relationship between police contact and hacking existed which ultimately chilled protest activity and caused major harm. Clearly the Appellant was subjected to harm, and not the other way around as delineated in Md. Code Ann., § 4-343. With that said, Executive order 13526 Section 1.7, which takes precedence over Md. Code Ann., § 4-343 & f, GP § 4-301(a)(2)(ii). Accordingly, where corruption, lies and harm exist, the state cannot keep classified records to conceal violations of the law, inefficiency, or administrative error, prevent embarrassment to a person, organization or agency.
On June 2018, MIPA Liaison Patrick Lacefield provided a link to the Montgomery County Website to search through all three categories. EXHIBIT 6. On October 1, 2018, the Chief Attorney Ed. Lattner still chose not to relinquish the requested data. A lawyer always consults with the party it represents before a hearing. Lattner consulted with Appellee, which is the same agency charged with managing the promotion of Montgomery Awards Ceremony (EXHIBIT 9), and circulated information the Appellant wanted on social media but opted to invoke national security laws with the Appellant. The logical conclusion to draw is that Appellee still decided not to relinquish any additional information regarding the detectives and captain. Secondly, the police knowingly shared the information the Appellant wanted on social media during the very day and time period the Appellant was denied some of the same information she sought.
In light of the foregoing, Appellant avers that this case is not moot because the Appellee is picking and choosing what to respond to and which to ignore, showing how the Appellee’s actions are very prejudicial and violative of the spirit of the MIPA laws.
And in case this honorable Court finds Appellant’s case as moot, Appellant acknowledges that her case meets the exceptional threshold mentioned in Green v. Nassif, 401 Md. 649, 655 (2007). In Green, the Court provided that “Only in rare instances will a reviewing court address the merits of a moot case… This Court, on rare occasions, has decided moot cases.” Appellant avers that the exceptions exist where it is urgent to establish a rule of future conduct in recurring matters pf important public concern, which otherwise may not be subject to complete appellate review. See Attorney Gen. V. A.A. Co. School Bus, 286 Md. 324. 407 A.2d 749.
-
THE INFORMATION SOUGHT BY THE APPELLANT IS NOT PRIVILEGED AND/OR PROHIBITED BY LAW
It would be useful to underscore certain well-established general principles governing the interpretation and application of the Maryland Public Information Act. It was reiterated in Kirwan v. The Diamondback, 352 Md. 74, 80-81, 721 A.2d 196, 199 (1998), that:
“[t]he Maryland Public Information Act establishes a public policy and a general presumption in favor of disclosure of government or public documents. The statute thus provides (§ 10-612(a) and (b) of the State Government Article): `(a) General Right to information. — All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees. (b) General construction. — To carry out the right set forth in subsection (a) of this section, unless an unwarranted invasion of the privacy of a person in interest would result, this Part III of this subtitle shall be construed in favor of permitting inspection of a public record, with the least cost and least delay to the person or governmental unit that requests the inspection.'”
Accordingly, as pointed out in Kirwan, 352 Md. at 84, 721 A.2d at 200, ” the statute should be interpreted to favor disclosure.” See also, e.g., Office of the Attorney General v. Gallagher, 359 Md. 341, 343, 753 A.2d 1036, 1037 (2000) (“the Act is to be constructed in favor of disclosure”); Office of State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 134, 737 A.2d 592, 601 (1999) (“It is the policy of this State that its citizens have `access to information about the affairs of government'”); Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 73, 716 A.2d 258, 262 (1998) (the statute embodies the principle that citizens “`be accorded wide-ranging access to public information'”); Cranford v. Montgomery County, 300 Md. 759, 771, 481 A.2d 221, 227 (1984) (“Without doubt the bias of the Md. Act is toward disclosure”).
“the public agency involved bears the burden in sustaining its denial of the inspection of public records.” Fioretti, 351 Md. at 78, 716 A.2d at 264. See Cranford v. Montgomery County, supra, 300 Md. at 771, 481 A.2d at 227. . .. Id. at 544-45, 759 A.2d 249.
In the instant case, Appellant avers that parts of Md. Code Ann., § 4-343 does not apply to this case. The Appellant is neither seeking personnel records nor medical records which are is exempted information under MIPA Attorney General Rule 90. EXHIBIT 7 (Maryland Public Information Act 2020 Page 206). Appellant’s claims are also not subject to exceptions from other sources of law. Under GP § 4-301(a)(1), inspection is to be denied where “by law, the public record is privileged or confidential.” Furthermore, under GP § 4-301(a)(2), the custodian must deny inspection if the inspection is contrary to: State statute, GP § 4-301(a)(2)(i); federal statute or regulation, GP § 4-301(a)(2)(ii); or a rule adopted by the Court of Appeals or order of a court of record, GP § 4-301(a)(2)(iii), (iv). As per Ali vs. Montgomery the Appellant seeks correct information that is already publicly listed. Furthermore, when controversy involves hacking, invasion of privacy, community watch, etc., Section 1.7 of Executive Order 135.26 applies. EXHIBIT 8 (Executive Order 13526 Section 1.7).
-
THE APPELLANT IS ENTITLED TO DAMAGES
In addition to injunctive relief, a court may award actual damages and statutory damages of up to $1,000 against a governmental unit if the court finds that a defendant knowingly and willfully failed to disclose a public record or part of a record that the person was entitled to inspect. GP § 4-362(d)(1).
The official custodian is also liable for actual damages for failure to petition a court for an order to continue a temporary denial. GP § 4-362(d)(2). The statutory term “actual damages” does not include emotional damages. ACLU v. Leopold, 223 Md. App. 97, 123 (2015).
Reasonable attorneys’ fees and other litigation costs are available if an applicant “substantially prevails.” GP § 4-362(f). The awarding of attorneys’ fees lies with the discretion of the trial court. Caffrey v. Department of Liquor Control for Montgomery County, 370 Md. 272, 299 (2002).
While an actual judgment in favor of the applicant is not necessarily required for an applicant to “substantially prevail,” the applicant must demonstrate that filing suit could reasonably be regarded as having been necessary to gain access to the records sought, that there is a causal nexus between the suit and the agency’s release of the record, and that “key documents” were recovered. Id. (citing Kline v. Fuller, 64 Md. App. 375, 385 (1985)). Among the pertinent considerations to be taken into account are the benefit the public derived from the suit, the nature of the applicant’s interest in the released information, and whether the agency’s withholding of the information had a reasonable basis in law. Caffrey, 370 Md. at 385 (citing Kirwan v. The Diamondback, 352 Md. 74, 95-96 (1998)); see also Stromberg Metal Works, Inc. v. University of Maryland, 395 Md. 120 (2006).
It follows; the Appellee’s contention that Appellant is not entitled to damages lacks a basis in law.
CONCLUSION
The Circuit Court’s decision dismissing Appellant’s claim should be reversed. The Circuit Court’s decision dismissing Appellant’s claims should be reversed and remanded.
DATED:
CERTIFICATION OF WORD COUNT
AND COMPLIANCE WITH RULE 8-112
- This brief contains 1,913 words, excluding the parts of the brief exempted from the word count by Rule 8-503.
- This brief complies with the font, spacing, and type size requirements stated in Rule 8-112.
Dated:
CERTIFICATE OF SERVICE
Plaintiff hereby certifies that a true and correct copy of the above Appellant’s Reply Brief was served upon the Appellee by electronic and/or U.S. mail to their respective addresses as stated below:
Dated:
APPENDIX
EXHIBIT 1
June 21st 2018
Thank you for the documents. Moving forward, I would like to know the office, civil service title and unit of the individual persons whom were cc’d on the email. What were their job titles or roles at the time of email production.
Lacefield, Patrick <Patrick.Lacefield@montgomerycountymd.gov>
Jun 27, 2018, 2:23 PM
Public information responsive to your request can be found at https://data.montgomerycountymd.gov/Human-Resources/Employee-Salaries-2017/2qd6-mr43/data
EXHIBIT 2.
EXHIBIT 3
EXHIBT 4
EXHIBIT 5
Good Evening –
In response to your lawsuit, the information requested is as follows:
Detective Sergeant David Papalia – Vice and Intelligence
Detective Corporal Breness Smith – Vice and Intelligence
Detective Sean Reilly – Vice and Intelligence
Please advise as to when Line Dismissing your lawsuit with prejudice will be filed as this matter is now moot. If the County does not hear by close of business tomorrow, I intend to file a Motion to Dismiss with Prejudice as the rank and duty assignment of the officers is provided above.
Regards,
Haley Roberts,
Associate County Attorney
Office of the County Attorney
101 Monroe Street, 3rd Floor
Rockville, Maryland 20850
240-777-6700 (Main)
240-777-6710 or
240-773-5008 (Direct)
240-777-6705 (Fax)
EXHIBIT 6
|
Jun 27, 2018, 4:09 PM | |||
|
||||
Hi,
Thank you for providing with the link. I will take a look at it. If I have any questions about navigating I will contact you.
With regards to the three non Montgomery employees I would like to know what these people do because Montgomery County staff selected them in particular as communication liaisons because they are known to perform particular tasks. They were given my contact information, my private cell before I advertised the protests. In addition, those individuals were asked to communicate back with Montgomery County staff should they obtain information regarding myself.
So it seems that there should be a written directive from a superior or colleague of Mr. Heiderich directing him to contact LockHeed Martin and the Marriott Hotel simply because every step of the way my Mr. Heiderich was told how to engage with me. I do not think that Mr. Heiderrich would call Lockheed Martin and the Marriott Hotel if he was not instructed. Likewise,I do not think Mr. Heiderich would not email his superiors about an independent action he took with regards to the protests. Therefore, there has to be a document in which Mr. Heiderich is advised to liaise and to provide feedback on what those individuals from Lockheed. Lastly there has to be feedback from LockHeed and from the Marriott. So I would like to know if your office can perform another search. If there is a cost for the search I will pay.
EXHIBIT 7 Maryland Public Information Act 2020 Page 206
- Mandatory Exceptions 90 Opinions of the Attorney General 45 (2005) Medical information recorded by dispatcher during course of 911 call is to be redacted prior to release of fire department “event report” or dispatch m. 86 Opinions of the Attorney General 94 (2001) Personnel records exemption does not preclude municipal agency from sharing personnel records with another municipal agency that is charged with personnel
EXHIBIT 8 Executive Order 13526 Section 1.7
Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall
information be classified, continue to be maintained as classified, or fail
to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security.
EXHIBIT 9.
EXHIBIT 10.
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.