By andrei Blakely
ANNAPOLIS – Maryland’s highest court Tuesday rejected Gov. Parris N. Glendening’s attempt to withhold telephone records and scheduling calendars from The Washington Post under a broad shield of executive privilege.
The Maryland Court of Appeals ruled, 4-3, that Glendening’s records should be open to the public unless his office argues that specific, individual records should remain secret for other reasons. The court also sent the case back to the lower court for review.
The decision comes two years after Anne Arundel Circuit Court in 1997 ordered the governor’s office to hand over all the requested records to The Post. The newspaper sued Glendening for the records while they were investigating campaign finance, according to reports at the time.
Chief Judge Robert Bell and judges Dale R. Cathell and Irma S. Raker dissented. Cathell and Bell wrote one dissent, and Raker another.
Judge John C. Eldridge wrote the opinion for the majority, saying, “We reject the defendants’ argument that the factual records here involved are generally subject to executive privilege and, therefore, are nondisclosable.” While Glendening does not have a blanket privilege to withhold records, the court ruled he may be able to shield some records from public view because they are personnel records, may jeopardize negotiations or other reasons the governor’s attorneys cited for keep such records private, Eldridge wrote. The governor does not want to make public records that involve business activities because they could cause the state to lose its competitive edge, said Michelle Byrnie, spokeswoman for the governor’s office. No date has yet been set for a new circuit court hearing about the specific telephone records and scheduling calendars that the Post initially attempted to obtain. Both sides were satisfied with the ruling. “The decision is a substantial win for The Washington Post,” said Patrick Carome, the newspaper’s attorney. The decision would aid future cases involving high-ranking officials and the public’s right to know, said Carome. The case also rejects the governor’s attempt to have a far-reaching executive privilege, he said. “The Post is very gratified that the (Court of Appeals) came out on those two points,” he said. “This decision dramatically limits the arguments the governor could make on remand.” The governor’s office was pleased because the ruling sets a clear guideline for the office to follow in handling requests for public documents, said Byrnie. “We are very pleased with the court’s decision,” she said. “It creates specific guidelines and zones on what information should be released and can be released.” Although four years has elapsed since the initial suit, the desire for the information has not diminished, Carome said. The Post intends to continue its campaign finance investigation, he said. The governor claimed the documents contained confidential commercial, employee and financial information, and that it could jeopardize the governor’s safety.
The dissenters Bell and Cathell agreed with the governor. In their dissent, Cathell wrote that the issue turned on the doctrine of the separation of powers.
“I believe that the doctrine of separation of powers, which, unlike its federal counterpart, is incorporated expressly in the Constitution of Maryland through the Declaration of Rights, does not permit the Legislature to create laws that can be used directly to require the governor to make his nonpublic activities public,” he wrote.
In her dissent, Raker said Glendening’s telephone and schedule records are protected by executive privilege. Releasing them could be “chilling of the important constitutional functions of the governor and his staff,” she wrote, saying she, therefore, would have reversed the Anne Arundel trial court.
– 30 – CNS-09-12-00