Identifying Public Records

By Karen Federman Henry

Whether you advise a government entity or seek information from a government for your private client, the Maryland Public Information Act (MPIA) provides a useful tool for access to public records. Although many requests seek documents that everyone agrees are public information, the exceptions to disclosure and evolution of an array of electronic information that might constitute a public record can pose dilemmas for the government and the requester.

Two appellate decisions that came out during the summer highlight some of the nuances that arise with identifying public records and public employment generally. In Lamson v. Montgomery County, the Maryland Court of Appeals revisited the issue of when a supervisor’s notes become a public record. The case arose from an employee’s request for her personnel file, including her supervisor’s notes. The supervisor removed some notes from the formal file and also kept a private journal that included some notes about the employee. The supervisor declined to disclose the private journal or the removed notes asserting that they were not public records.

The Court of Appeals reminded the parties of the approach required to evaluate whether records are subject to disclosure under the MPIA. First, the court must determine whether the items fall within the definition of a public record, i.e., whether the material was made or received in connection with public business. If so, then the court proceeds to determine whether an exception to disclosure applies. The Court described three evidentiary methods for a court to pursue, ranging from a detailed list of items and the reasons for non-disclosure to in camera review. In the end, the Court remanded the case for further consideration, because the trial court had not performed the proper review of the records.

In another case, the fine line between an employee’s status as an individual and as a public employee led to appellate review. The Tenth Circuit, in Bailey v. Independent School District No. 69, considered whether a public employee’s letter seeking a reduced sentence for a relative in a criminal proceeding fell within the protection of the First Amendment as speech on a matter of public concern. Ultimately, the Court concluded that the employee had a right to comment on the relative’s sentence, but that the law was not clearly settled at the time of the termination. As a result, the case was remanded for further consideration of whether the person acted as a private individual or as a public official when sending the letter.

These cases reflect the gray area that often exists when addressing public information. Anyone involved in government work needs to remain sensitive to the concept of whether a record was made or received in connection with public business. A record may not need to kept in a government file or office to fall within the definition of public record. The distinction becomes even more complicated when email and text messages enter the scene—if they involve public business, it does not matter that they were transmitted or received on personal devices rather than government-issued equipment.

This ongoing blurring of the line between private notes and thoughts and those related to public business suggests that public employees should exercise care when sending personal letters or making “private” notes that could be viewed as public information. This is especially important with electronic information that has a longer shelf life than written documents. As many of us already know, it is wise to recognize that any written or recorded information may become public and balance that with the need for historical documentation of events, which may lead to more notes and potential disclosures.

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