Court of Appeals Grants Rapid Review in Police Records Case
Yesterday, the Court of Appeals granted certiorari in a single case, Maryland Department of State Police v. Dashiell, Case No. 84, Sept. Term 2014, which arose from a police officer’s use of a racial slur on the voice-mail of a potential witness, Teleta Dashiell. Ms. Dashiell’s complaint was “confirmed” by the Maryland State Police and resulted in some unexplained disciplinary action against the officer. When Ms. Dashiell later sought the investigation documents for the incident, her request was denied as seeking personnel records that were exempt from disclosure under the Maryland Public Information Act (“MPIA”) and Law Enforcement Officers’ Bill of Rights (“LEOBR”). (The denial also stated that such disclosure would be against the “public interest.”)
The circuit court agreed that the MPIA protected the records, but the Court of Special Appeals, in an Oct. 8 opinion, No. 1078, Sept. Term 2011, reversed, holding: (1) that the LEOBR didn’t trigger MPIA protection for records that are barred from inspection by some other statute; and (2) the circuit court had not properly determined which documents were protected as personnel records, investigation records, or inter-agency memoranda under the MPIA, suggesting that the Maryland State Police could be required to disclose any portions of the records could be reasonably severed from other protected documents. (The court also held that, as a complainant, Ms. Dashiell was not a “person of interest” under the MPIA such that the State Police would have to make a heightened showing before denying her access to the records.) The case was remanded so that the circuit court could analyze MPIA exemption for individual documents rather than the set of records as a whole.
Given the open questions of statutory interpretation involved, it’s not too surprising that the Court of Appeals took up the case for review. Some curiosity, however, is prompted by the speed at which it did so — only about two months after the intermediate appellate opinion issued, and a week before the court would normally review certiorari petitions at its monthly conference. If any of you MdAppBlog readers out there have any thoughts or insights on the expedited grant, we’d be interested to check them out in the comments below…
I’ve thoughts but not insights. Yes, damn odd that the CA would grant in advance of a vote conference not far away (and thus jump ahead in line of however many other petitions). Irksome, given I filed a petition not just for writ of cert but also mandamus in August, which the Court chose to send on the equivalent of an extraordinary three-month tour before a vote (as compared to three-hour a la Gilligan and The Minnow). It was scheduled for the November conference in disregard of the norm, never mind the OAG allowing the 9 Sept response deadline to come and go without a peep. Had to pester the CA in early October to please reconsider the bizarre schedule and put it to a vote at that month’s conference (pointing out it could’ve seen a vote in mid-September and, oh, never mind the more important mandamus aspect meant it could’ve and arguably should’ve been put on the miscellaneous v. petition docket).
The answer in my case may lie in the fact that the action was on the then-emerging topic of a circuit court choosing to contravene and circumvent Rule 7-301 entirely and treat a petition for cert and/or mandamus only as the latter (and this after initially rejecting the petition and falsely declaring in effect that 7-301 didn’t exist and only the Court of Appeals accepted such petitions). Instead, the circuit court and the trial court evidently conferred privately to decide on a path to dispose of the petition as moot. Despite objection to the circuit court ‘s utter disregard for 7-301 and discovery via the MDJCS that it intended only to treat it as a petition for mandamus (and falsely categorize it as case type “miscellaneous/two-party” not “petition for writ of cert”), it went on the record only to issue an opinion and order falsely declaring that the obstruction erected by a district court to a criminal defendant’s appeal of right had been removed, and so the need for any review or remedy was moot. In reality, it knew the obstacle that was the unlawfully stricken appeal notice remained in place, and does to this day … almost six months after filing of the appeal. The Court of Appeals knows all this — and it was unrefuted by the respondent circuit court — yet there was denial of the petition in October. (This is supposedly under reconsideration, with only the looming threat of a Supreme Court petition as incentive to change its direction.)