SINCLAIR BROADCAST GROUP, INC. * INTHE Plaintist * — ciRcUIT courT x, * FOR BALTIMORE CITY BOARD OF * BALTIMORE CITY SCHOOL COMMISSIONERS: Defendant, Case No. 24-C-17-006516 BCBSC’s MEMORANDUM IN RESPONSE TO COMPLAINT ‘SEEKING JUDICIAL REVIEW Defendant, the Baltimore City Board of School Commissioners (‘BCBSC”), by and through its undersigned counsel, and pursuant to Md. Code Ann. Gen. Prov. § 4-862(0)2)(i) and Ma. Rule 7-207, herein files this memorandum in response to the Complaint filed by Plaintiff Sinclair Broadeast Group, Inc. ("SU") seeking judicial review of a Maryland Publie Information Act decision of BCBSC and says: 1. QUESTION PRESENTED Was BCBSC correct to deny the inspection of investigatory records, personnel records, and other privileged and confidential records that BCBSC believes are not in the public interest from a party not in interest? 1. STATEMENT OF Facts 1. On September 5, 2017, Christopher Papst (Mr. Papst”) sent an email to media@beps,k12.md.us entitled “Fox45 MPIA,” wherein he stated the following: Under the Maryland Public Information Act, Fox45 in Baltimore, MD is requesting any and all documentation collected or created by Baltimore City Public Schools concerning grade changing reports/allegations/investigations made since 2010. In this,request, we are secking ~ for example ~ the initial claim, response to that claim, paperwork/documents gathered’ via the investigation, and any result or follow up information related to that claim. Please include any pending claims/elaims not yet resolved, Please include all record layouts, code sheets and any other information needed to interpret the data. I ask that a copy of the date be exported into a .txt or .esv file. We're happy to discuss any additional formats. As a member of the media, I ask that you waive fees, if any, as this information will be used to better inform the public, If there will be any fees charged, please let me know before you fill my request. I ask that you include a detailed invoice including the employee(s) who will be filling the request. If you deny any part of this request, please cite each specific reason and state statute that you think justifies your refusal to release the information. If you are refusing to release certain data fields, please provide the public data and provide a reasoning for exempting specific fields... (See Plaintiff's Complaint Exhibit 1)(emphasis added). 2017 2. On Oetober 5, 2017, BCBSC responded to Mr. Papst’s September 5, email and expressly informed Mr. Papst that “your request for investigation reports and associated documents is being denied on multiple grounds.” (See Plaintiffs Exhibit No, 2)(emphasis added). In said response BCBSC stated: Records related to currently ongoing investigations are personnel records pertaining to the individual employees identified within the records. Pursuant to [Md. Code Ann., Gen. Prov.) § 4-311, the custodian is prohibited from disclosing these records to Fox 45, which is not a person in interest as defined by the Act. Kirwan v. The Diamondback, 85% Md. 74 (1998); Baltimore City Police Department v. State, 158 Md. App. 274 (2004); Md. Dep't of State Police v. Dashiell, 443 Md. 435 (2015); 65 Op. Att'y Gen. 865 (1980); 82 Op. Att'y Gen. 65 (2997, Additionally, your request is being denied because the custodian has determined that releasing any of the reports would be contrary to the public interest. § 4-343. First, the investigatory reports are intra: 22agency documents that are protected by the deliberative process privilege. § 4-344. ‘This exemption protects the internal decision making process of a governmental agency. Prince George's County v. ‘The Washington Post Co,, 149 Md. App. 289 (2003); Jowett, Inc. v. The Department of the Navy, 729 F. Supp. 871 (1989); Stromberg Metal Works, Ine. v. University of Maryland, et al, 382 Md. 161 (2004). Second, the investigatory records were prepared in anticipation that administrative disciplinary proceedings might be taken against individual employees. As such, § 4-351 provides that the custodian may deny inspection of the investigatory records. Mayor and City Council of Baltimore, et al v. Maryland Committee Against the Gun Ban, 829 Md. 78 (1993); Briscoe v. Mayor and City Couneil of Baltimore, et al., 100 Md. App. 124 (1994); 82 Op. Att'y Gen. 111 (1997); Office of Attorney General, et al. v. Gallagher, 359 Ma. 341 (2000). To release the records to Fox 45, which is not a person in interest as defined by the Act, would be contrary to the public interest for several additional reasons, including release of the records could deprive specific individuals of a fair and impartial hearing, release would have a chilling effect on future investigations and would also have a detrimental impact on future investigations because investigative techniques and procedures would be disclosed Lastly, your request is being denied because the records are protected by the attorney work product doctrine. §4-301; Gallagher v. Office of the Atty Gen., 141 Md. App. 664 (2001); Md. Rule 2-402 Since your request has been denied, please note that you may seek judicial review pursuant to § 4-362, You also may refer any concerns about this decision to the Public Access Ombudsman, pursuant to § 4- 1B-01, et. seq. If your request results in litigation, the custodian reserves the right to rely upon any and all exemptions from disclosure permitted by the Act. (See id)(emphasis added), 3. On November 10, 2017, Mr. Papst submitted an email to Edie House- Foster, entitled “Foxi5 MPIA Request” wherein he statod the following: Under the Maryland Public Information Act, Fox45 in Baltimore, MD, is requesting any and all documentation collected or created by Baltimore City Public Schools concerning the 2017 investigationinto allegations of grade changing at Northwood Appold Community Academy II, or NACA II In this request, we are seeking the complete report in its entirety. We understand, and appreciate, the report may need redacted to exelude names of teachers, investigators, administrators, students or any other personnel involved in the internal investigation. Please include all rocord layouts, code sheets and any other information needed to interpret the data. I ask that a copy of the date be exported into a .txt or csv file. We're happy to discuss any additional formats, As a member of the media, I ask that you waive fees, if any, as this information will he used to better inform the public. If there will be any fees charged, please let me know before you fill my request. I ask that you include a detailed invoice including the employee(s) who will be filling the request. If you deny any part of this request, please cite each specific reason and state statute that you think justifies your refusal to release the information. If you are refusing to release certain data fields, please provide the public data and provide a reasoning for exempting specific fields. See Plaintiff's Complaint Exhibit $ (emphasis added), 4. On November 28, 2017, BCBSC responded to Mr. Papst's November 10, 2017 email and expressly informed Mr. Papst that “your request for the NACA II investigation report is being denied on multiple grounds.” (See Plaintiff's Exhibit No. 2)(emphasis added). In said response BCBSC stated: ‘The report is a personnel record pertaining to the individual employees identified within the records. Pursuant to § 4-311, the custodian is prohibited from disclosing the record, even if redacted, to Fox 45 which is not a person in interest as defined by the Act. Kirwan v. The Diamondback, 352 Md, 74 (1998); Baltimore City Police Department v. State, 158 Md. App. 274 (2004); Md. Dep't of State Police v, Dashiell, 443 Ma. 485 (2015); 65 Op. Att'y Gen. 365 (1980); 82 Op, Atty Gen, 65 (1997). Additionally, your request is being denied because the custodian has determined that releasing any of the reports would be contrary to the public interest. § 4-343. First, the investigatory reports are intra- agency documents that are protected by the deliberative process privilege. § 4-344. This exemption protects the internal decision Smaking process of a governmental agency. Prince George's County v. ‘The Washington Post Co., 149 Md. App. 289 (2003); Jowett, In. v. The Department of the Navy, 729 F. Supp. 871 (1989); Stromberg Metal Works, Inc. v. University of Maryland, et al, 382 Md. 151 (2004). Second, the investigatory records were prepared in anticipation that administrative disciplinary proceedings might be taken against individual employees. As such, § 4.351 provides that the custodian may deny inspection of the investigatory record. Mayor and City Council of Baltimore, et al v. Maryland Committee Against the Gun Ban, 329 Md. 78 (1993); Briscoe v. Mayor and City Council of Baltimore, et al., 100 Md. App. 124 (1994); 82 Op. Att'y Gen. 111 (1997); Office of Attorney General, et al. v. Gallagher, 359 Md. 341 (2000). To release the record to Fox 45, which is not a person in Interest as defined by the Act, would be contrary to the public interest for several additional reasons, including release of the records could deprive specific individuals of a fair and impartial hearing, release would have a chilling effect on future investigations and would also have a detrimental impact on future investigations because investigative techniques and procedures would be disclosed. Laotly, your roqucat is being denied because the records are protected by the attorney work product doctrine. §4-301; Gallagher v. Office of the Att'y Gen., 141 Md. App, 664 (2001); Ma. Rule 2-402, Since your request has been denied, please note that you may seek judicial review pursuant to § 4-362. You also may refer any concerns about this decision to the Public Access Ombudsman, pursuant to § 4 1B-01, et. seq. If your request results in litigation, the custodian reserves the right to rely upon any and all exemptions from disclosure permitted by the Act. (See id)(emphasis added), 5. On December 20, 2017, SBG filed a complaint seeking judicial review in this Court of the above-referenced denials of inspection by BCBSC. UI STATEMENT OF THE BCBSC was statutorily required to deny the inspection of the records sought by SBG pursuant to Md. Code Ann,, Gen, Prov. § 4-01(a), which expressly states:1 custodian shall deny inspection of a public record or any part of public record if: (1) by law, the public record is privileged or confidential; or (2) the inspection would be contrary to (i) a State statute; (ji) a federal statute or a regulation that is issued under the statute and has the force of law; (i) the rules adopted by the Court of Appeals; or (iv) an order of a court af record. ‘Ma. Code Ann., Gen. Prov. § 4-301(a)(emphasis added). Moreover, BCBSC is also cognizant that a person, including an officer or employee of a governmental unit, can be held liable for willfully and knowingly allowing an inspection or use of a public record. See Ma. Code Ann., Gen, Prov. § 4 401, Heneo, there can be legal liability imposed upon not only BCBSC, but a BCBSC employee as well, for the disclosure of records that should not be disclosed. See id. Thus, BCBSC has an interest in ensuring that requestors not entitled to their specific requested inspection shall be denied upon the request, particularly from a party not in interest, i. SBG. 1. Inspection of Student Records Md, Code Ann., Gen. Prov. § 4-813, entitled “Student records,” explicitly states that “a custodian shall deny inspection of a school district record about the home address, home telephone number, biography, family, physiology, religion, academic achievement, or physical or mental ability of a student.” Md. Code Ann., Gen. Prov. § 4-313(a)(emphasis added), Pursuant to Md. Code Ann., Gen, Prov. § 4-313, news media organizations, ie. SBG, are not identified as being permitted to inspect “student records.” See Md, Code Ann., Gen. Prov. § 4-313, 2. Inspection of Personnel RecordsMd. Code Ann., Gen. Prov. § 4-811, entitled “Personnel records,” expressly states that “a custodian shall deny inspection of a personnel record of any individual, including an application, a performance rating, or scholastic achievement information.” See Md. Code Ann., Gen. Prov. § 4-311. Md. Code Ann., Gen. Prov. § 4-311 does not permit inspection of “personnel records” to the news media. See Md, Code Ann., Gen. Prov. § 4-311(b). 3% Inspection of Investigatory Records Pursuant to Md, Code Ann., Gen. Prov. § 4-851, “a custodian may deny inspection of (1) Records of investigations condueted...2) an investigatory file...or (8) records that contain intelligence information or security procedures...” See Md. Code Ann., Gen. Prov. § 4-351(a)(emphasis added). Moreover, a custodian may deny inspection, oven by a person in interest, if the inepection would constitute ‘an unwarranted invasion of personal privacy, disclose the identity of a confidential source; disclose an investigative technique or procedure; prejudice an investigation; or endanger the life of physical safety of an individual. See Md, Code Ann., Gen. Prov. § 4-351(b)(emphasis added), IV. ARGUMENT A. SBG’s September 5, 2017 Request As stated above herein, SBG, through its news reporter Mr. Papst, made a request to inspect records relating to grade changing reports, grade changing allegations, and grade changing investigations since 2010. ‘Thus, there is no dispute that SBG requested that BCBSC disclose “student records, personnel records, andinvestigatory records” all of which BCBSC was permitted, if not required, to deny. ‘See Ma. Code Ann., Gen. Prov. §§ 4-301, 4311, 4-913, and 4-951. See also Ma. Code ‘Ann, Gen, Prov. §§ 4843 and 4.544. Moreover, there can be no dispute that SBG requested “intra-agency” records that were not subject to disclosure and that BCBSC has the right to deny inspection if BCBSC, as the custodian, “believes that {ngpection...woul be contrary tothe public interest. See Md. Code Ann, Gen, Prov. §§ 40949 and 4-944 ‘As BOBSC informed S18G on October 5, 2017, there were multiple grounds to deny inspection of the records relating to grade changing reportslallegationsfinvestigations. (See P's Comp. Ex. 2). First, BCBSC rightfully denied the inspection of personnel records and investigatory records. Pursuant to Ma. Code Ann., Educ. § 6-203, entitled “Suspension or disuissal of teucle principals, and other professional personnel,” there are grounds and procedures that BCBSC must follow to suspend or dismiss an employee for “immorality, misconduct in office, insubordination, incompetency, or willful nogloct of duty.” See Ma, Code Ann, Edue. § 6202, Thus, in order for BCBSC to proceed in the suspension andlor dismissal of an employee, it must be able to substantiate the basis andlor grounds, which requires ongoing investigating of employee actions andlor evaluation of employee performance. ‘There can be no legal dispute that the evaluation of BCBSC employees is continuous and ongoing as teachers and principals are continuously monitored and reviewed for evaluation purposes, which also could consequently lead to suspension and/or dismissal based upon the legalgrounds of dismissal stated above. See Code Md. Regs. 134.07.09.04. Stated alternatively, BCBSC employees are not merely suspended or dismissed based upon investigations, but also evaluations, and BCBSC may tactically include in those evaluations allegations and/or reports of grade changing as part of its review of employee performance, Therefore, the tactical and/or investigative techniques used by BCBSC for obtaining evidence to meet its legal burden to support any actions to suspend or dismiss an employee pursuant to Md, Code Ann., Edue. § 6-202 must be preserved to ensure that future investigations are not prejudiced and/or thwarted by employees engaged in misconduct and/or mischievous behavior who arethen able to avoid disciplinary action based upon their knowledge of the investigative tacties ‘and procedures used by BCBSC to conduct investigations and/or to use evaluations for the suopension and/or dismissal of employees, ‘Thus, pursuant ty Md. Code ‘Ann,, Gen. Prov. § 4-351, BCBSC was legally permitted to deny the request for inspection of the investigatory records relating to grade changing. BCBSC has the right to maintain the position that it is not in the public interest for employees engaged in the act of grade changing to be alerted that they ‘are under investigation and/or that BCBSC is looking into allegations and/or reports of grade changing. Such disclosures of allegations and/or investigations relating to specific employees and/or specific schools could result in the employees engaged in misconduct using knowledge of the investigation and the tactics for investigation to strategically avoid disciplinary action against them through multiple means, including but not limited to potentially destroying evidence thatcould implicate them in misconduct. ‘The public has no interest in having teachers, principals and other school employees engaged in misconduct avoiding disciplinary action for their misconduct and to the contrary, it is in the public interest to Aiscipline school employees and officials that are engaged in serious misconduct such as grade changing. There is no dispute that records sought by SBG, ic. records relating to students! grades, are student records that reflect the “academic achievement” of a student, and as stated above, BCBSC is required to deny inspection of such records pursuant to Md, Code Ann., Gen. Prov. § 4313. Additionally, itis without dispute that investigations and evaluations of employees are “personnel records” that [BCBSC is required to deny inspection of pursuant to Md. Code Ann, Gen, Prov. §4- 311, Tt should aloo bo recognized that SBC is not @ person in interest andor purty or entity identified as being permitted tothe disclosure of the records sought. ‘As stated in BCBSC’s response to SBG, the attorney work product doctrine precluded disclosure of the investigative records. As indicated in Md. Code Ann, Gen, Prov. § 4851, records of investigations conducted by attorneys of the governmental entity can be precluded from inspection by the governmental entity. ‘See Md. Code Ann. Gen, Prov. § 4-351(a). ‘This preclusion also extends to records containing the intelligence information of the attorney for the governmental entity. Ma. Code Ann. Gen, Prov. §4-361(@). See also Gallagher v. Office ofthe Att'y Gen. 141 Md. App. 664 (2001), Hence, BCBSC ean preclude from inspection the records that disclose the legal impressions and/or opinions of legal counsel for, as well as -10-the strategic methods of investigation at the direction of counsel for BCBSC is attorney work product and not subject to disclosure, B. SBG's November 10, 2017 Request In addition to the reasons stated above herein, BCBSC's denial of SBG’s November 10, 2017 request was correct because said request specifically requested disclosure of a specific investigative record (2017 investigation) relating to a specific school (NACA ID; and thus, disclosure in response to said request would have clearly and blatantly violated Md. Code Ann., Gen, Prov. §§ 4-311, 4-313, and 4-351 because the report is a personnel record pertaining to individual employees and the identity of the employees would be easily identifiable and thus the BCBSC was prohibited from releasing it; and additionally, the suspected employees would be alorted of the investigation of their actions while still being subject Wo employer evaluations and a continued investigation for disciplinary action, in that, if BCBSC tactically and strategically made the determination based upon the lack of sufficient evidence of grade changing to monitor and/or continue to monitor the employee to obtain additional information to substantiate the allegations, BCBSC would be prejudiced by the disclosure of such investigatory records. V. CONCLUSION For the reasons stated herein, SBG’s petition for judicial review should be denied. siteRespectfully submitted, EB Ys Sally A. Robinson, Senior Counsel Amanda L. Costley, Associate Counsel Office of Legal Counsel Baltimore City Public Schools 200 East North Avenue, Suite 208 Baltimore, Maryland 21202 (410) 896-8542 telephone (410) 896.2956 facsimile tabanton@beps.k12.mdwus alcostlev@beps.k12.md.us Attorneys for BCBSC BR.CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2204 day of January 2018, the foregoing BOBSC's Answer to Complaint for Judicial Review was sent first-class postage repaid to: Scott H. Marder, Esquire ‘Thomas & Libowitz, P.A. 100 Light Street, Suite 1100 Baltimore, Maryland 21202-1053, shmardestandllaw.com Attorneys for Plaintiff a3.