Prince George's County v. Apartment and Office Building Association (Maryland Court of Special...

8/14/2019 Prince George's County v. Apartment and Office Building Association (Maryland Court of Special Appeals)

1/17CAL0617355

UNREPORTED

IN THE COURT OF SPECIAL APPEALSOF MARYLAND

No. 2427September Term, 2007

PRINCE GEORGE'S COUNTYv.

APARTMENT AND OFFICE BUILDINGASSOCIATION OF METROPOLITANWASHINGTON

Davis,Matricciani,Rodowsky, Lawrence F.(Retired, specially assigned),

n.

Opinion by Matricciani, J.

Filed: December 23, 2008


2/17

This case arises out of appellee's, Apartment and Office Building Association ofMetropolitan Washington (AOBA) , request for'informa.-tion under the Maryland PublicInformation Act (MPIA) from appellants, Prince George's County (County). AOBA madeits request on July 13, 2005. AOBA and the Countyhad several communications concerningthe MPIA request. Unsatisfiedwith the County's response, AOBA filed a complaint in theCircuit Court for Prince George's County on August 23,2006. A bench trial was held onDecember 13 and 14, 2007. The court found in favor of AOBA and this timely appealfollowed.

QUESTIONS PRESENTEDThe appellant presents four questions for our review which we have slightly reworded:1. Did the trial court err as a matter of law in instituting a fine of $5,000 perday, payable to Appellee, for noncompliance with its injunctive order?II. Did the trial court err in finding that documents responsive to Appellee'sMPIA Requests Six and Seven existed when the Appellanthad contended theydid not exist after a diligent search?III. Did the trial court abuse its discretion in awarding attorney's fees and coststo Appellee under the factors to be weighed for entitlement to attorney's feesand costs under the MPIA pursuant to Klinev. Fuller, 64 Md. App. 375(1985)?IV. Did the trial court err in granting damages to Appellee that ,were actuallycosts incurred by Appellee for documents it actually received?

For the following reasons, we will affirm in part and reverse and remand in part.

FACTS AND PROCEEDINGSIn his January mid-term address, County Executive Jack Johnson warned


3/17

apartment managers and owners in the County that they needed to make improvements.He threatened that if they did not, they would be held accountable. On March 14,2005,the County followed up on his mid-term address when it issued a press release entitled,"County Executive Lays Out Strategic Plan to Deal with Crime, Gets Tough onApartment Complexes." The press release stated that, based on 2004 crime statistics,officials had compiled a list of the most crime-ridden apartment complexes in the County.Twenty-two apartment complexes were identified as being responsible for 19,000 callsfor police service. The press release included a statement by the County Executive, whosaid, "our demands are non-negotiable and i f they are not met, we will close you down."

On July 13, 2005, AOBA sent a letter addressed to James Keary, Director ofCommunication of the Office of the County Executive in Prince George 's County. Theletter was a request under the MPIA. AOBA asked to inspect all records and documents,including email communications, in the custody or control of the Prince George's CountyGovernment Executive and all Executive Branch departments, agencies, offices andinstrumentalities pertaining to the following: "

I

1. The properties named on the "Apartment Action List" (hereafter: "ActionList") released March 14, 2005;2. Other properties considered, but not included in, this Action List,3. All properties under consideration for any future "Action Lists";4. The criteria used to determine which properties to place on the ActionList;

2


4/17

5. Inspections, code enforcement, and license approvals/renewals forproperties on the Action List since January 1, 2003;6. Meetings, including agenda and attendees, concerning the Action List;7. Agreements reached between the county government and Action Listproperties since March 14,2005;8. Economic development proposals for the municipalities andneighborhoods of Langley Park, Forestville, Forest Heights, Oxon Hill,Hillcrest Heights, Bladensburg, Suitland, and Seat Pleasant;9. The Apartment and Office Building Association (AOBA) and AOBAstaffperson Lesa Hoover;10. Use of Homeland Security monies, including use of personnel, forinvestigations, code enforcement, and other actions concerning apartmentcommunities on Action List;11.Dse of Homeland Security monies, including personnel and use ofrecording equipment, concerning public gatherings in Prince George'sCounty since March 14,2005;12. Calls for service to apartment communities on Action List, includingdates, subject, and address for the year 2004;13. Calls for service originating from apartment communities on ActionList, including dates, subject, and address for the year 2004;

r.14. Outcome of calls for service from or to apartment communities onAction List;15. Average police response time for police calls to apartment communitiesfor the year 2004;16. Average police response time for police calls countywide for the year2004;17. The daily report titled "Morning Briefing Report" issued by PrinceGeorge's County Police Department, Statistics Section, for each day from

-3-


5/17

January 1, 2004 through July 1, 2005;18. Number of sworn officers assigned to personal security details of countyofficials.The County received the letter on July 15, 2005. On October 25,2005, the County

had not responded and AOBA submitted a follow-up to its request. On November 8,2005, a County employee and a representative of AOBA discussed the matter over thetelephone. The County followed-up this conversation with an email on November 29,2005. In the email the County stated that it had requested. and received an estimate ofcosts associated with fulfilling AOBA's request. The County also stated that it had someof the documents in hand as a result of the search, but AOBA would have to submitpayments before the County released the documents.

On February 13, 2006, AOBA sent a letter to the County stating that it had a rightto inspect the requested records before paying the County to duplicate the records.AOBA requested that the County contact them as soon as possible to arrange a time toinspect the records. AOBA also requested an explanation of the allegedly high cost of

,.retrieving email communications. On March 28 and April 27, 2006, AOBA emailedfollow-up inquiries concerning its February letter. On May 3, 2006, the Countyresponded by stating that it was working on the request, but because of the volume of therequest, it was taking a long time to coordinate the responses.

On June 12,2006, the County and AOBA discussed the pending MPIA request onthe telephone and AOBA followed-up with a letter. In the letter, AOBA expressed its

-4-


6/17

interest in obtaining the documents the County had aJready gathered rather than waitingfor the collection of all of the documents. One month later on July 11, 2006, the Countycommunicated to AOBA that the matter was being reviewed by the Office of Law and the

.. County anticipated that the information would be in the mail no later than July 13, 2006.On August 23,2006, AOBA filed a complaint against the Countyl alleging a

violation of the MPIA. The County filed an answer on September 29, 2006.In a letter dated September 28, 2006, the County answered AOBA' s initial request.

The County stated that records responsive to request I were available for inspection andthat the County was not in possession of items in response to requests 2, 3,4,6, 7, 9,10,and 11. The county denied request 18. The County stated that AOBA owed the County$1,220 for the acquisition and reproduction of documents in response to request 5. TheCounty stated that because of the nature of request 8, it estimated a cost of $5,000 toretrieve the information. The County estimated the costs of gathering the information forrequests 12, 13, 14, 15,16, and 17 at $3,521. The County also estimated that retrieval ofall emails associated with AOBA's requests w,ould cost about $9,000. The County

,

concluded by stating that all costs must be paid in advance and that any portion not usedtoward gathering the information would be refunded. AOBA responded on January 17,2007. AOBA mailed payment for materials gathered in response to request 5 and

iAOBA also filed a complaint against County Executive, Jack Johnson. Johnsonwas dismissed from the action before it went to trial.-5-


7/17

anticipated costs for acquiring materials in response to requests 12 through 17.On March 20, 2007, the County responded with the information in response to

requests 1 and 16. The County also indicated that it would not be able to retrieveinformation for request 17 and stated that AOBA would receive a refund in the amount of$1,546.00. The County asked AOBA to communicate whether it wanted the refundimmediately or after all the requests had been answered. The County further stated that itcould not fulfill requests 12, 13, 14, and 15 because it did not have the street addresses forthe individual apartment buildings. The County asked AOBA to provide the addresses.

On May 15, 2007, AOBA sent a letter and attachment to follow-up on a phoneconversation between the County and AOBA. The letter reiterated AOBA's ilicredulitywith the County's assertion that it did not have the street addresses for the apartments.The attachment was a document released by the County Executive in 2005 that includedthe total number of calls for service made from each of the apartment complexes in 2004.AOBA alleged that if the County could produce this type of document, it should be ableto answer AOBA's requests 12 through 15. July 3,2007, AOBA followed-up on its'May letter requesting a response from the County. On July 10,2007, the County left amessage with AOBA that it had the street addresses and the requested information. TheCounty indicated that it would forward the information to AOBA.

In a letter dated August 29,2007, AOBA contacted the County to follow up on themessage because the County had not transmitted the information. The letter also stated

-6-


8/17

that the County has processed the $4,741 check AOBA had submitted on January 17,2007. In a letter dated September 5, 2007, the County sent AOBA informationresponding to requests 12, 13, and 14 and informed it that it would be unable to fulfillrequest 15. The County explained that the process did not cost as much as the estimateand that AOBA would receive a refund once the final calculations were completed. In aletter dated November 29,2007, AOBA expressed its frustration with the County and thestill pending MPIA request. AOBA had discovered documents relevant to its requeststhat the County had said it was unable to find. In the letter AOBA suggested that thediscovery of the documents illuminated the County's lack of candor.

A bench trial was conducted on December 13 and 14,2007. The court enteredjudgment on behalf of AOBA and ordered that:

1. Defendant shall produce all records and documents in its possession,custody or control responsive to document requests Nos. 6 and 7 stated inPlaintiff's letter dated July 13,2005, addressed to James Keary, which wassubmitted by Plaintiff to Defendant under the Maryland Public InformationAct ("MPIA"). . . .In the event Defendant fails to produce all records anddocuments on or before January 4, 2008, the Court imposes a monetarysanction on Defendant for Five T h o u s ~ 4 Dollars ($5,000.00) per calendarday to be paid by Defendant to Plaintiff each day until the documents areproduced.2. Judgment is entered on Plaintiff's behalf, and against Defendant, forPlaintiff's attorney's fees in the amount of $30,654.87, plus court costs. For. the reasons stated in open court on December 14, 2007, the collii finds thatdefendant has acted in bad faith with respect to Plaintiff's request forinformation submitted under the MPIA and, after considering the factorspertinent to the award of attorney's fees under the statute, the Court findsthat Plaintiff is entitled to its attorney's fees.

-7-


9/17

3. Judgment is entered on Plaintiff's behalf, and against Defendant, in theamount of $3,521.00, representing a refund to Plaintiff of the money paid toDefendant (Le., $4,741.00) for fees associated with Plaintiff's request underthe MPIA, minus $1,220.00 as total costs incurred by Defendant inconnection with Plaintiff's request.The County noted this timely appeal on January 4, 2008.

DISCUSSIONI.

The County contends that the trial court erred as a matterof law in instituting a $5,000per day fine for noncompliance with the injunctive order because, under the MPIA statute,the court was not permitted to authorize such relief. AOBA contends that the court did notabuse its discretion in awarding the per day fme.

- We review the interpretation and application of Maryland statutory law de novo.Bittinger v. CSX Transp. Inc., 176 Md. App. 262, 273 (2007). Md. Code Ann., (1984, Repl.Vol. 2004), 10-623 (c)(3) of the State Government Article ("S.G.") clearly lays out theremedies available to the court in an MPIA case. The statute states:

The court may:(i) enjoin the State, a political subdivision, or a unit, official, oremployee of the State orof a political subdivision from withholding thepublic record;em. pass ap. o ~ c ! ~ r for fue production of the p u ~ l i c record that waswithheld from the complainant; and .(iii) for noncompliance with the order, punish the responsible employeefor contempt.

S.o. 10-623 (c)(3). The Court of Appeals has stated that "[s]tatutory analysis begins with

-8-


10/17

the plain meaning of the words of the statute. When those words are clear and unambiguous,and the result is not absurd, no further inquiry into legislative intent is required." FriendlyFinance Corp. v. Orbit Chrysler, 378 Md. 337,343 (2003). The statute here is unambiguousin laying out the available remedies for violation of the MPIA.

In this case the court ordered the County to produce the documents in response torequests 6 and 7. The court is allowed to issue this order under S.G. 10-623 (c)(3)(ii). Thecourt continued, however, and instituted a per day fine for noncompliance with the order.By including the fine, the court did not follow the steps that are outlined in the statute. Thestatute does not include a provision that permits a court to levy a fine for noncompliance.As provided for in the statute, the result of noncompliance could have been a contemptcharge against the responsible employee. S.G. 10-623 (c)(3)(iii),z Further, a per day fineis not conducive to resolving the dispute between the parties as it encourages the partyreceiving the fine to continue to dispute the adequacy of the responses in an attempt to collectmore money. We conclude that the trial court erred when it ordered the County to pay a perday fine for noncompliance. We remand for t h , ~ circuit court to consider whether contemptcharges under S.G. 10-623 (c)(3)(iii) are warranted under the circumstances then presented.

II.

2The per day fine instituted in this case resembles a punitive fine. The GeneralAssembly amended the MPIA statute in 2002 and removed the punitive damagesprovision. This removal suggests that the legislature did not want government agenciessubject to punitive fines for noncompliance. 2002 Md. Rules 403.

-9-


11/17

The County next contends that the trial court erred in fmding that documentsresponsive to requests 6 and 7 existed. Under request 6 and 7 the County had asked toinspect all records pertaining to: "(6) Meetings, including agenda and attendees, concerningthe Action List [and] (7) Agreements reached between the county government and ActionList properties since March 14,2005." The County claims to have conducted a diligentsearch for the documents and ultimately was unable to fmd anything responsive. Thus, theycontend that the court was in error when it found that the documents existed. AOBAcontends that the trial court did not err in finding that the documents existed, as AOBApresented substantial evidence to support its claim that the County possessed documentsresponsive to requests 6 and 7.

Under Maryland Rule 8-131 we review actions tried without a jury on both the lawand the evidence. The appellate court, "will not set aside the judgment of the trial court onthe evidence unless clearly erroneous, and will give due regard to the opportunity of the trialcourt to judge the credibility of the witnesses." Md. Rule 8-131. "If any competent materialevidence exists in support of the trial court's fa9tual findings, those findings cannot be heldto be clearly erroneous." Schade v. Maryland State Ed. ofElections, 401 Md. 1,33 (2007).In this case the trial court made a factual finding that the County possessed documentsresponsive to AOBA's requests 6 and 7. It made this finding based on the evidencepresented at the bench trial.

During the bench trial the judge heard testimony and reviewed evidence and

-10-


12/17

concluded that despite the County's assertion, it possessed documents responsive to requests6 and 7. This evidence included a memorandum from the County Chief of Staff addressedto various county employees reminding them of an upcoming meeting to discuss the"initiatives and progress of the Apartment Task Force as it relates to the twenty-twoproperties covered in the initiative." AOBA also presented a press release issued by theCounty, highlighting the improvements that had been made at one apartment complex as a

. .result of the County's progJam to improve the conditions at certain apartment c o m p l ~ x e s . These documents are responsive to AOBA's requests number 6 and 7, respectively. Theysuggest clearly that the County did not produce all of the documents it possessed in responseto these requests.3 We conclude that the trial court did not err in finding that documentsexisted that were responsive to AOBA's requests.

ID.Next the County contends that the trial court abused its discretion in awarding

attorney's fees and costs to AOBA. The County alleges that the judge did not adequatelyconsider the factors to be weighed when deteIII)ining entitlement to attorney's fees and costs

"under the MPIA pursuant toKline v. Fuller, 64 Md. App. 375, 386 (1985). AOBA contends,

3The County contends that federal case law is instructive in this case because theMPIA is modeled after the federal Freedom of Information Act (FOIA). While this courthas held that federal court 's interpretation of the FOIA is instructive, it applies wheninterpreting counterpart provisions of the MPIA. In this case, there is nothing in theMPIA that outlines what standard is required for the search of responsive documents.MacPhail v. Comptroller ofMaryland, 178 Md. App. 115, 120 (2008).

-11-


13/17

and we a ~ e e , that the award was proper.The decision ofwhether to award attorney's fees to an eligible party under the MPIA

statute is within the discretion of the trial judge. Stromberg Metal Works v. University ofMaryland, 395 Md. 120, 135 (2006). Thus, "absent a showing of abuse of that discretion ora predicate erroneous legal conclusion, the determination to award or deny such feesgenerally will not be disturbed on appeal." Stromberg Metal Works, Inc. v. University ofMaryland, 166 Md. App. 190 (2005), affd 395Md. 120 (2006).

Under theMPIA a party is eligible for attorney's fees if "the court determines that thecomplainant has substantially prevailed." 8.0. 10-623(0. Once that is established, "thecourt may assess against a defendant governmental unit reasonable counsel fees and otherlitigation costs that the complainant reasonably incurred." ld.

Case law has developed to guide trial courts in determining whether a party is entitledto attorney's fees. See Stromberg, 395 Md. 120; Kline, 64 Md. App. 375. Kline states thatthree factors have been identified as worthy of consideration when considering whether toaward attorney fees. These include: "(1) the l r ~ n e f i t to the public, if any, derived from the

>

suit; (2) the nature of the complainant's interest in the released information; and (3) whetherthe agency's withholdingof the information had a reasonable basis in law." Kline, Md. App.at 388. In Stromberg, the Court of Appeals went further and concluded that a trial court mustconsider the three factors set forth in Kline when deciding on attorney's fees. Stromberg,395 Md. at 128. Using the analysis in the8enateJudiciaryCommittee's Report on the FOIA,

-12-


14/17

Stromberg elaborated on the required analysis under each of the three factors.Under the public benefit factor, the Senate Judiciary Committee noted that fees should

be awarded when a "public interest group was seeking information to further a projectbenefitting the general public." Stromberg, 395 Md. at 129. Under the nature of thecomplainant's interest factor the Committee noted that attorney's fees should be awarded if ,"the information sought was . . . public-interest oriented." ld. And finally, the Committeestated that attorney's fees should be awarded under the reasonableness of nondisclosurefactor when there was no "colorable basis in law [and] . . . if the withholding appeared to bemerely to avoid embarrassment or to frustrate the requester." ld.

In this case the trial court addressed each of the three factors outlined in Stromberg.In its oral opinion the court first discussed the benefit to the public derived from the suit. Hestated: "The public was potentially harmed and the public benefit was at stake . . . over20,000 tenants potentially involved . . . these tenants are going to be out on the street, and ifthat's not a public benefit issue, I can't imagine what is." The judge next addressed thenature of the complainant's interest in the info,pnation by saying, "I fmd that the nature ofthe Plaintiff's interest was severely affected and clearly involved . . . it' s an organization thatrepresents these communities. They have their tenant's interest at heart . . . They had acontractual interest to their tenants." He concluded by discussing whether there was areasonable basis in the law for the County's withholding of information by stating, "therewas no reasonable basis for the delay. I have suggested they could have given some of this

-13-


15/17

information the day of the request, not months and months and months and months later."This analysis is sufficient to satisfy the Stromberg requirements andwe conclude that the trialcourt did not abuse its discretion in awarding attorney's fees to AOBA.

,

The MPIA statute provides for the award of attorney's fees if the party substantiallyprevails. In this case, appellant conceded that AOBA substantially prevailed and the circuitcourt awarded attorney's fees. We now affirm the award. In its brief, AOBA requests thatwe remand for a determination of the attorney's fees incurred since November 30, 2007.This time period includes the trial on the merits and the appellate process. Accordingly, weinstruct the trial court, upon remand, to consider whether AOBA is entitled to additionalcounsel fees. See Friolo v. Frankel, 403 Md. 443, 461-62 (2008).

IV.The County lastly claims that actual damages should not have been awarded to

AOBA. Appellant acknowledges that under the MPIA statute that actual damages can beawarded, but claims there were no uncompensated expenses in this case. AOBA c18.ims thatit never received the documents it paid for and the money it expended should be refunded.

I'I

We note that the trial court 's decision to award actual damages is a mixed questionof law and fact. Whether the County withheld documents is a question of fact and whether,

based on that finding, AOBA was entitled to actual damages under the MPIA statute is aquestion of law. We extend great deference to the lower court 's factual findings, but theapplication of the facts to the law is reviewed de novo. Liddy v. Lamone, 398 Md. 233,247-48 (2007). Under the MPIA 10-623 (d)(i)

-14-


16/17

[a] defendant governmental unit is liable to the complainant for actualdamages that the court considers appropriate if the court fmds by clear andconvincing evidence that any defendant knowingly and willfully failed todisclose or fully to disclose a public record that the complainant wasentitled to inspect under this Part III of this subtitle.In t h i s c ~ s e t h e trial court ordered "that the county refund the Plaintiff $3,521 of the

money paid." The trial court found that AOBA had paid the County $4,741 towardsfulfilling its MPlA request. The trial court further found that A OBA had not received all ofthe documents it paid for and was entitled to the aforementioned refund.

The County informed AOBA on September 28, 2006, that the cost of collectingdocuments responsive to requests 12, 13, 14, 15, 16, and 17 would be $3,521. AOBA paidthe County on January 17,2007. On March 20,2007, the County stated that it would beunable to locate documents responsive to request 17 and indicated that AOBA would receivea refund in the amount of $1,546. In this letter the County attached a document in responseto request 16. On September 5, 2007, the County allegedly delivered documents responsiveto requests 12, 13, and 14 and communicated that they could not collect documentsresponsive to request 15. The County also s t a ~ d that the search cost less than the expected$1,975 and AOBA would receive a refund once a final accounting had been done. There isnothing in the record to indicate that AOBA ever received a refund from the County. At trial,AOBA challenged the sufficiency of the documents the County delivered and claimed wereresponsive to requests 12, 13, and 14. We infer from the damages actually awarded that,after reviewing all of the evidence, the trial court determined that the County had not fulfilled

-15-


17/17

any of AOBA's requests numbered 12 through 17. This fmding is a finding of fact and,based on the record, we conclude that the trial court did not clearly err. We further conclude,that based on the undisturbed factual fmdings, the court did not err as a matter of law inawarding the damages. AOBA paid the County for documents never produced. The trialcourt's award of a refund in the amount of $3,521 is within its statutory authority. Weconclude, therefore, that AOBA is entitled to the refund.

"

-16-

JUDGMENT AFFIRMED IN PARTAND REVERSED IN PART.REMANDED FOR FURTHERPROCEEDINGS CONSISTENT,WITHTIDS OPINION. COSTS DIVIDEDEVENLY BETWEEN APPELLANTAND APPELLEE.

Prince George's County v. Apartment and Office Building Association (Maryland Court of Special...

Documents

Transcript of Prince George's County v. Apartment and Office Building Association (Maryland Court of Special...