Stromberg v. Univ. of Maryland

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In the Circu it Court for P rince Geo rge s Cou nty Case No. CAL02-26807 IN THE COURT OF APPEALS OF MARYLAND No. 122 September Term, 2003 ______________________________________ STROMBERG METAL WORKS, INC. v. UNIVERSITY OF MARYLAND, ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: July 27, 2004 Appellant, Stromberg Metal Works, Inc., a subcontractor on a construction project at the College Park Campus of the University of Maryland (UMCP), filed a request under the Maryland Public Information Act (PIA) to inspect and copy certain public records pertaining to the project. The University turned over some of the rec ords that were requested but redacted certain information in others, claiming that the information was privileged and therefore not subject to disc losure. Strom berg filed su it under the A ct to obtain th e inform ation. Obviou sly crediting the University s assertion that the requested information was privileged, the Circuit Court for Prin ce Georg e s Coun ty entered sum mary judgm ent in favor of the University, and Stromberg appealed. We granted certiorari on our own initiative, prior to proceedings in the C ourt of Special Ap peals, and shall affirm in part and rev erse in p art. BACKGROUND The project in qu estion is the ren ovation of the Adele H. Stamp Student Union at the College Park Campus. The general contractor for the job was Grunley Construction Co. Inc. Grunley subcontracted certain mechanical work to John J. Kirlin, Inc., which , in turn, subcontracted the fabrication and installation of du ctwork to Stromberg. The project had initially been budgeted at $39.3 m illion, but that budget was incre ased to $44.9 million by August, 2001.1 Construc tion began in July, 1999, and was due to be completed in September, 2002. As of D ecember, 2001, the p roject was running m ore than $2 million over the then-effective budget amount and was 53 weeks behind schedule. Appare ntly concerned whether there was adequate funding to co mplete the p roject, Stromberg, invoking the PIA, made requests for various documents pertaining to the project on November 29, 2000, August 9, 2001, and September 28, 2001. Am ong the docume nts requested were monthly reports prepared by the University s Department of Architecture, Engineering and Construction with respect to the project (AEC Reports). The AEC Reports were prepared by John Mitchell, an employee in the AEC Department and project manager for the project. He and Joyce Hinkle, a procurement employee in the Depa rtment o f Proc ureme nt and S upply, w ere the c ustodia ns of th e repor ts. The AEC Report is in the form of two spread sheets detailing certain information about all of the University s on-going construction projects and one spread sheet for each project that contains additional information regarding that project. The individual project report for the Stamp project shows such things as (1) the original funding authorization and budget for planning, construction, equipment, and other items, (2) approved fundin g and budget changes, (3) the current funding and budget for each category of expense, (4) the amount of the budget that is encumbered and liquidated to date, (5) the estimated amount needed to com plete the project, (6) the final cost forecast, (7) any budget 1 By September, 2002, the budget had been increased to $48.5 million. -2- variance, and (8) the target and actual dates of the start of construction, substantial completion, and pro ject com pletion. O ne of the consolidated spread sheets shows the projected budget for the project, the final cost forecast, the amount and percentage that the project is under or over budget, and how many weeks the project is behind or ahead of schedule. After a review of the requested documents by the Attorney General s Office for any privileged material, the University made the documents available in January, 2002. Among the documents turned over for inspection were unredacted copies of the AEC Reports, including the latest Report, for December, 2001. Stromberg requested copies of some of the documents, includin g the AEC Report for De cember, 2001; they w ere delivered a week later. The insp ection and copying w ere supervised by the Attorney Gene ral s Of fice. On August 14, 2002 some eight months later Stromberg filed a supplemental application for additional documents, including the monthly AEC Reports for and after Janu ary, 2002. The application was sent to Jennifer Forrence, the Assistant Attorney General who had supervised the disclosure of the first round of requested documents, and John M itchell. The PIA requ ires the custodian of public records to grant or deny an application within 30 days after re ceiving it. See Maryland C ode, §10-6 14(b) of th e State Government Article (SG ). On Sep tember 13 , 2002, ano ther Assistan t Attorn ey General, -3- David Chaisson, responded that the University was gathering the documents b ut would need additional time to gather them all. The parties agreed to a 30-day extension for production of the documents. On October 2, 2002, Mr. Chaisson advised that the documents were ready for inspection, and that the University was entitled to $1,7 50 for its search and prod uction eff orts. A che ck for that a mount w as pr omp tly sent to the Unive rsity. Inspection occurred on October 8, but a number of documents, including the requested month ly AEC Repo rts for Ja nuary - S eptem ber, 2002, were not produce d. In response to Stromberg s complaint about the missing AEC Reports, Mr. Chaisson wrote, on October 16, 2002 , that [s]om e of the inf ormation p rovided in those reports is privileged under the executive privilege and, as w ell, may contain confiden tial commercial financial information. Chaisso n added th at, to the exten t the reports contain ed priv ileged in forma tion, they w ould be produ ced in a redacte d form . The next day, the University turned over copies of the AEC Reports from which a great deal of information had been redacted. On the reports pertaining to the Stamp Project, in particular, the dollar amounts for the estimated cost to complete the project, the final cost forecast, the estimated budget variance, forecasted surplus or shortfall, and the current percentage of completion were redacted. On the consolidate d reports, the o nly information supplied was the projected budget for the Stamp Project and the number of -4- days and weeks that project was behind schedule. All information relating to the other projects was redacted, apparently without objection. In Novem ber, 2002, S tromberg filed this action to enjoin the University, M itchell, and Hinkle from withholding the requested information, to permit Stromberg to inspect the monthly AEC Reports, and for ancillary relief. In its answer to the complaint, the University admitted or denied various f actual allega tions but asse rted no partic ular basis for withholding the information. Its defe nse was p resented in a memora ndum f iled in support of its motion for summary judgment, in which it asserted that the redacted information was prote cted by exec utive privilege and by the University s privilege for confidential commercial information. The University relied on two prov isions of th e PIA SG §§10-615(1) an d 10-618(b). Section 10-615(1) requires a custodian to deny inspectio n of a pub lic record or any part of a public record if, by law, the public record is privileged or confidential. Section 10-618(b) permits a custodian to deny inspection of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the [governmental] unit. As to both sections, the University claimed that the redacted information was protected by executive privilege, citing as auth ority Hamilton v. Verdow, 287 Md. 5 44, 414 A.2d 9 14 (19 80), Office of the Governor v. Washington Post, 360 Md. 5 20, 759 A.2d 249 (2000), and Cranford v. Montgomery County , 300 M d. 759, 4 81 A.2 d 221 ( 1984) . -5- In its argument, the University treated executive privilege as if it were the same defense or doctrine as the deliberative process privilege recognized under the Federal Freedom of Information Act (FOIA), 5 U.S.C. §552(b)(5). In that regard, it averred that the redacted number for the forecast of final cost was not just a simple number but instead represented Mitchell s subjective assessment of the potential final cost to the University for the project, including the project mana ger s assessment of the U niversity s potential liability for claims filed by the contractor, for problems on the project that the manager believes may result in claims, and for actual and potential change order reques ts. That information, it contended, w as provide d to Mitch ell s superviso r, Carlo Colella, so that he co uld make decisions re garding the amount of resources to devote to the project and whether additional funding might be required, and an assessment of the value of pending claims. The University did not indicate what, if any, authority Mr. Colella had to make or implement any of those decisions or, if he did not have that authority, who did. In addition to th e executive /deliberative p rocess privilege, the University claimed that the reda cted inf ormatio n also c onstitute d con fidentia l comm ercial inf ormatio n, which it said was privileged under SG §10-618(b). For that proposition, it relied on a number of Federal cases arising under the FOIA, 5 U.S.C. §552(b)(5) the Federal analog to §10-618 (b). -6- After hearing argument on the cross-motions, the court entered a brief order granting the University s motion, denying Stromberg s motion, and entering judgment for the Un iversity. N o reaso ns or fin dings w ere inclu ded in th e order . DISCUSSION Preliminary Issues As noted, a gre at deal of inform ation was redacted from the AEC Reports. The focus of this appeal, however, has been on the one number for the total forecasted cost of the Stamp project. Although, in their briefs and oral argument, the parties sometime spoke of the redacted information generally, their arguments addressed only that one piece of information. Stromberg states as its position that the nature of the redacted d ata numbers representing the total cost of a public construction project is such that UMCP s claimed privileges do not attach. The arguments, pro and con, focus on that one number in the various reports. According ly, we have no basis upo n which to disturb the Circuit Court s ruling with respect to the other redacted informatio n and sha ll consider only the one item that seems still to be in contention. The predominant question in this appeal is the substantive one of whether the number on the A EC Re ports for tota l cost of the S tamp proje ct is subject to th e asserted privileges and, for that reason, is exempt from disclosure. -7- Stromberg has raised a collateral ground for den ying the University s right to assert those privileges, how ever that o f tim eline ss in asse rting them -- wh ich w e sha ll con sider pre limin arily. Stromberg made its application for disclosure of the documents at issue here on August 14, 2002. SG § 10-614(b)(1) requires that the c ustodian either grant or deny an application promptly but, in any event, w ithin 30 days after receiving the application. Section 10-614(b)(4) provides that, with the consent of the applicant, that time limit may be extended for not more than 30 days. Section 10-614(b)(3) requires a custodian who denies an application to notify the app licant imme diately and, with in 10 wo rking days, to give the applica nt a wri tten state ment o f the rea sons an d legal a uthority fo r the den ial. As noted, Stromberg consented to a 30-day extension of the initial 30-day period, which would have required the University to grant or deny the application by October 13, 2002 60 days after the August 14 application. Although the AEC Reports were not delivered with the other records on October 8, the University did not notify Stromberg of its intention to redact portions of the AEC Reports until October 16, 2002, three days past the deadline. Stromberg argues that the executive privilege claim was thus untimely and should be barred. We reject that argument, for two reasons. First, it is not at all clear that the University missed the deadline. It had until October 13 to com ply with or rejec t the request a nd, to the ex tent it rejected the request, ten additional days to inform Stromberg in writing of the rejection a nd the reaso ns for it. The actual rejection , at least implicitly, occu rred on O ctober 8, w hen the A EC Re ports -8- were not turned over with the other records that had been reque sted. Chaisson gave written notice of the final rejection with respect to the redacted information on October 16, well within the ten days allowed by the statute. Second, although th e PIA sets time limits on a response b y the Gover nmental u nit, it says nothing expressly about the effect of non-compliance with those limits. The essence of Stromberg s position is that, if the unit fails to deny the application within the prescribed time, it is not permitted to deny the application therea fter and must therefore disclose even records or parts of records that the law otherw ise either requ ires or perm its the custodian to shield. We are unw illing to interpret th e statute in that manner, as we do not believe that the Leg islature could possibly have intended su ch a result. The time limits are important. In SG §10-612, the General Assembly expressed the view that a ll persons are entitled to have access to information about the affairs of Government and the of ficial acts of Government officials and that the statute should be construed in favor of permitting inspection of a public record, w ith the least cos t and least delay to the perso n or gove rnmental u nit that reques ts the inspectio n. (Emp hasis added). The time lim its are en forcea ble in a n umbe r of wa ys under the statu te. SG §10623 permits a person who is denied inspection of a public record to file an action in court and authorizes the court, in an expedited manner, (1) to order production of the record, (2) to assess damages against any custodian who knowin gly and willfu lly failed to -9- disclose the record, and (3) to assess reasonable counsel fees and o ther litigation co sts against the Governmental unit. If the court finds that the custodian acted arbitrarily or capriciously in withholding th e docum ent, the cour t must send a certified co py of its finding to the appointing authority of the custodian, which may then take disciplinary action against the custodian. Failure to permit inspe ction of a d ocumen t subject to inspection within the prescribed time period obviously constitutes at least a tem porary denial of inspection, which, unless authorized under the PIA (see SG §10-619), may justify immediate invocation of the judicial remedy. Section 10-627 also makes a knowing and willful violation of the statute a criminal offense. Given these various remedies for withholding records that are disclosable under the statute, requiring the disclosure of non-disclosable records is not necessary as an enforcement mechanism. Apart from the lack of necessity, forcing a unit to permit inspection of records that the statute re quires o r permi ts the cu stodian to shield , simply because of a failure to meet the statutory deadlin e for denying inspection, is n ot a reasona ble construction of the statute and is not a construction that the Legislature likely intended. The presumption of the statute is in favor o f disclo sure. See Governor v. Washington Post, supra, 360 Md. 520, 544-4 5, 759 A .2d 249, 262-63. The Legislature carefully carved out for non- disclosure only those kind s or c ateg ories of r ecor ds fo r wh ich it nece ssarily found some supervening public policy that justified their shielding. Indeed, in SG §10-626, it created civil liability on the part of any individual who knowin gly and willfu lly permits -10- inspection of a public record in violation of the statute, and in §10-627, it provided a criminal penalty for that conduct as well. We can not conce ive that the L egislature w ould have contem plated, m uch les s desired , that the public policy justifying the shielding of specific kinds of records be subordinated to the mere failure of a custodian to act within the statutory time limits that the custodian be required to disgorge records that the Legislature has declare d should n ot be disclos ed simply bec ause the cu stodian did not communica te his/her decision in a timely manner. 2 Executive/Deliberative Process Privilege The term executive privilege, used by the University to justify its redaction of the foreca sted fin al cost n umbe r on the AEC Repo rts, is a broad and ill-defined term that encompasses a number of m ore specific privileges. 2 It reaches pu blic attention most Strombe rg also stresse s that, in respon se to its earlier ap plications, the U niversity supplied unredacted copies of the mon thly AEC Repo rts and thus disclosed the very information, as contained on those reports, that it now claims is privileged and either mandatorily or permissively non-disclosable. The release of that information, Stromberg, contends, was not accidental or inadvertent, but was done deliberately after careful review by the Attorney General s Office. Indeed, the University charged Stromberg $4,350 for the collection of the doc uments tha t it released for inspection. D espite multip le opportunities during that process, the University never asserted any privilege with respect to the pre-January, 2002 AEC Reports. In the section of its brief that deals with that point, Stromberg argues only that the prior release of the same information demonstrates the non-privileged nature of the information, which goes to the substantive question of whether a privilege applies. We do not construe that argument as one of waiver that by releasing comparable information in response to the earlier requests, the University has waived its r ight to claim th at the materia l it redacted in re sponse to th e later applica tion is privileged. -11- dramatically when invoked to shield records made in connection with the deliberative decision-making process used by chief or high Executive officials Presidents, Governors, and their immediate advisors and, as both the Supreme Court and this Court have pointed out, wh en applied in that contex t, the deliberative process priv ilege subsumed within that term has its roots in the Constitutional doctrine of separation of powers. See United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed.2d 1039 (1974); Cheney v. U.S. District Court, ____ U.S. ____, 12 4 S. Ct. 2576, ___ L. Ed.2d ___ (2004); and Hamilton v. Verdow, supra, 287 Md. 544, 553, n.3, 414 A.2d 914, 920 n.3. The term executive privilege has also been used as the umbrella for shielding diplomatic, military, and secu rity-laden secrets th at may not inv olve those o fficials. It is those kinds of executive privilege that are encompassed within SG §10-615(1) the Constitutionally-based privilege that, when invoked, must be given the most serious attention and, when properly invoked by the person holding the privilege, require the custodian to deny inspec tion. It is, after all, not unusual for the physical custodian of the record to be someone other than the person holding the privilege, and it cannot have been the legislative intent even if the legislature were competent to do it to permit the custodian to waive or ignore another s Constitutionally based privilege. We are not d ealing h ere with that for m of e xecutiv e privile ge. The records at issue do not contain any diplomatic, military, or security secrets and do not involve the deliberative process of the President or Governor. They were prepared by John M itchell, -12- the Stamp project manager who worked in the University s Department of Architecture, Engineering & Con struction (A EC). M r. Mitchell pr epared the reports for h is immedia te supervisor, Carlo C olella, the Directo r of AE C. Co lella, in turn, reported to J. Frank Brewer, Associate Vice President for Facilities Management, who reported to another Associate Vice Pre sident. Tha t Associate Vice Pre sident repo rted to John D. Porca ri, Vice Preside nt of U MC P. Mr. Porcari reporte d to UM CP Pr esiden t C. Da niel M ote, Jr., who reported to Donald N. Langenberg, Chancellor of the University, who reported to the Board of Regents of the University. Mr. Colella claimed, in an affidavit, that he used the total forecasted cost figure supplied by Mr. Mitchell to make a number of different decisions regarding the projects, including decisions about the amount of resources (financial and human) to commit to each project, whether or not additional funding should be requested for the project from the University Board of Regents, and about the likely valu e of ou tstandin g claim s whic h are pe nding f rom co ntractor s. It is evident that Mr. Colella s decision -making p rocess, wh ich was th e sole basis for the asserted privilege, was seven rungs down in the chain of command and responsibility within one State agency. There is nothing in the record before us to indicate that Colella had authority, on his own, to make any decisions regarding additional funding or other resourc es or regard ing the paym ent of dispu ted claims; n or is there anything in the record to indicate that the AEC Reports that Mitc hell prepared for Colella s benefit were used, or even seen, by anyone up the line for their decision- -13- making. The Constitutional underpinning of any executive/deliberative process privilege on Mr. Colella s part, if it exists at all, is exceedingly remote and tenuous. We find no basis, therefore, for a mand atory denial under SG § 10-615(1). What is really at issue here is the broader deliberative process privilege that arose from the common law, from rules of evidence, and mostly from rules governing discovery in civil judicial proceedings a privilege that, with the advent of disclosu re statutes, was incorpora ted into exemption provisions like SG §10-618(b) and 5 U.S.C. §552(b)(5), to protect from legislatively mandated disclosure interagency or intra-agency memoranda or letters that w ould not b e available by law to a private party in litigation with the unit. See EPA v. Mink, 410 U.S. 73, 93 S . Ct. 827, 35 L. Ed.2d 1 19 (1973); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49, 95 S. Ct. 1504, 1515-16, 44 L. Ed.2d 29, 46-47 (1975); FTC v. Grolier, 462 U.S. 19, 103 S. Ct. 2209, 76 L. Ed.2d 387 (1983); Cranford v. Montgomery Co unty, supra, 300 M d. 759, 4 81 A.2 d 221. See, however, Federal Open Market Committee v. Merrill, 443 U.S . 340, 354-5 5, 99 S. Ct. 2800, 2809, 61 L. Ed.2d 587, 599-600 (1979), making clear that §552(b)(5) does not necess arily incorp orate ev ery privileg e know n to civil discov ery. The three specific issues, in terms of that aspect of the deliberative process privilege, are (1) whether the final cost number that was redacted from th e AEC Reports is the kind of inform ation that constitutes deliberative process material, to which an exemption under SG §10-618(b) would apply, (2) if so, wh ether the priv ilege applies to -14- someone like Mr. Colella the head of a sub-agency whose own ability to act on the information in an y effective way has not been established , and (3) if it does, whether M r. Colella effectively invoked the privilege. Although we have some question as to issues (2) and (3), we need not address them, as we shall answer question (1) in the negative. The permissive denial allowed by SG §10-618(b) applies to interagency or intraagency letters or memoranda that would not be ava ilable by law to a private party in litigation with the unit. Stromberg does not contest that the redacted information in the AEC Reports was part o f an interag ency or intra-ag ency mem orandum from M itchell to Colella. The question is whe ther that info rmation w ould be av ailable to a priv ate party in litigation with the University. In that regard, we may look not only at our prior cases, but also Federa l cases c onstruin g the FO IA ana log, 5 U .S.C. §552(b)(5), from which §10618(b ) was d erived. See Cranford, supra, 300 Md. 759, 772-74, 481 A.2d 221, 227-29. In EPA v. Mink, supra, 410 U.S. at 86-87, 93 S. Ct. at 835-36, 35 L. Ed.2d at 132, the Supreme Court, quoting in part from Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 93 9, 946 (Ct. Cl. 1958), con cluded that the intent behind § 552(b)(5), was to incorporate generally the recognized rule that confidential intra-agency advisory opinions . . . are privileged from inspection, and that the public policy behind that privilege was the policy of open, frank discussion between subordinate and chief concerning administrative action. As further explicated in NLRB v. Sears, Roebuck & Co. supra, 421 U.S. 132, 149, 95 S. Ct. 1504, 1515-16, 44 L. Ed.2d 29, 46-47, §552(b)(5) -15- protects only (1) those confidential advisory opinions, disclosure of which would be injurious to the consultative functions of government, and (2) attorney-client and attorney work product privileges generally available to all litigants, quoting again from Kaiser Aluminum & Chemical Corp. supra, 157 F. Supp. at 946. The focus, said the NLRB Court, is on documents reflecting advisory opinions, recommendations and deliberations comprisin g part of a process by which governmental decisions and policies are formulated. NLRB, 421 U .S. at 150 , 95 S. C t. at 1516 , 44 L. E d.2d at 4 7. Because the focus is on the decision-making process, the Federal courts have construed §552(b)(5 ) as protecting only pre-dec isional communications, not those made after the decision is made. The NLRB Court explained that, although [t]he quality of a particular agency decision will clea rly be aff ected b y the com munic ations re ceived . . . prior to the time the decision is made . . . it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached. Id. at 151, 95 S. Ct. at 151 6-17, 44 L . Ed.2d at 47 . Thus, to shield a record under §552(b)(5), the agency ordinarily must establish that the record is both pre-de cisiona l and de liberativ e. See Hopkins v. U.S. Dep t. of Housing & Urban Dev., 929 F.2d 81, 84 (2nd Cir. 1991); Ann K , Woo ster, What are interagency or intraagency memorandums or letters exempt from disclosure under the Freedom of Information Act (5 USCA §552(b)(5), 168 ALR Fed 143, 192 (2001). The NLRB Court cautioned, however, that the line be tween pr e-decisiona l and post-d ecisional do cuments -16- may not always be a bright one that decision-making is often a continuing process and that the p rivile ge does n ot turn on the a bility o f the agen cy to identify a specific decision to which the m emora ndum relates. Id. at 151-52, n.18 and 19, 95 S. Ct. at 1517, 44 L. Ed.2d at 48. Given the purpose of the A EC Repo rts, as explained in Mr. Co lella s affidav it, there can be little doubt that the reports, and especially the total forecasted cost of the project, i s pre-de cisiona l in natur e. The function of the reports, and of the forecasted total cost, is to allow the University to monitor the progress of the project, to determine, as the affidavit states, whether additional funding or resources will be necessary and should be requested. The question is whether that number is deliberative in nature. In that regard, both the Supreme C ourt, with res pect to FO IA, and this Court, w ith respect to PIA, ha ve draw n a genera l distinction between purely factual data and deliberative opinions, noting, how ever, that the distinction is no t always a clear o ne and is not rigid. In EPA v. Mink, supra, 410 U .S. at 87- 88, 93 S . Ct. at 83 6, 35 L . Ed.2d at 132, the Court observed th at memoranda consisting only of compiled factual material or purely factual material contained in deliberative memora nda and s everable f rom its context would genera lly be available for discovery by private parties in litigation with the Governm ent. We noted in Hamilton v. Verdow, supra, 287 M d. at 564 -65, 414 A.2d at 926, however, that material cannot always be neatly separated into fact-finding and decision-making categories, and that some factual material is entitled to a degree of -17- protection under the privilege, although not to the same extent as opinions and recom mend ations, referencing, as examples, facts obtained upon promises or understandings of confid entiality, investigative facts unde rlying and intertw ined with opinions and advice, and facts the disclosure of which would impinge on the deliberative proces s. The number is largely factual in nature. Ind eed, in his af fidavit, M r. Colella acknowledged that [t]he AEC Monthly Reports consist predominantly of factual information on each project, including current and historical funding information, current and historical budget figures, expenditures for the project, and information regarding the project s schedule. That information is objectiv ely ascertainable and docu mented, an d is not at all deliberative in nature. As Mr. Colella s affidavit indicates, the number also incorporates Mr. Mitchell s estimates, predictions, or eva luations and , to that extent, constitutes Mitchell s views as to the validity or value of pending or possible claims or the course of further construction. That, indeed, is the basis for the Univer sity s claim of privileg e. If we were dealing with any clear articulation of those views if, in his report, M r. Mitchell set forth his analysis of pending or possible claims, or what remained to be done, or the extent to which further construction would likely occur on schedule, or whether additional funding was necessary or should be sought, or whether the project should be scaled back, enh anced, or c hanged in some m aterial way we might well regard that -18- information as deliberative a nd consu ltative in nature . If the delibera tive aspects c ould be separated from the purely factual aspects, they might be subject to shielding. T he one aggregate number that allegedly incorporates but does not identify or segregate Mr. Mitchell s consultative views do es not hav e that status, how ever. It is impo ssible to tell from that numb er what M r. Mitchell s views are with respect to any particular claim, much less whether the project should b e altered or ad ditional fun ding shou ld be soug ht. The redacted number does not, therefore, constitute a memorandum that would not be available to a private party in litigation with the University and, accordingly, is not subject to shielding under the d eliberative process privilege aspec t of SG §10-6 18(b). Compare Hopkin s v. U.S. Dept. of Housing & Urban Dev., supra, 929 F.2d 81, 85 (staff reports containi ng in spec tors prof essio nal o pinions o n pro gres s and quality of construction work and recommendations to higher officials that various agency actions should be taken may be protected by §552(b)(5); case remanded to determine whether factual and privileged conten ts were inextricably intertwined); and Jowett, Inc. v. Department of Navy, 729 F. Supp. 871 (D.D.C . 1989) (rep ort of audito rs hired to ev aluate applicant s claim and containing auditor s recommendations and opinions regarding aspects of the claim shielded under §552(b)(5 )). Confidential Commercial Information -19- Alte rnatively, the University relies on another privilege generally recognized under the civil discovery rules that has been incorporated by decisional law within the ambit of 5 U.S.C. §552(b)(5) and that it urges should be incorporated within the ambit of SG §10618(b) that of confidential commercial information. Because there is no definitive Maryland law on this point, the University relies on Federal cases interpreting FOIA, mostly Federal Open Market Co mmittee v. Merrill, supra, 443 U .S. 340 , 99 S. C t. 2800, 61 L. Ed.2d 587. At issue there, among other things, was whether Domestic Policy Directives issued on a monthly basis by the Federal Reserve Board s Federal Open Market Committee (FOMC) were subject to immediate public inspection under §552. Those Directives, issued immediately following the FOMC monthly meeting, summarized the economic and monetary background of the FOMC s deliberations and indicated whether the Committee intended to follow an inflationary, deflationary, or unchanged monetary po licy in the month ahead. Th e Directive s also includ ed specific tolerance ranges fo r growth in the money supply and for the Federal Funds rate. FOMC withheld disclosure o f the Direc tive for 45 days in accordance with FOMC regulations, at which point a n ew D irective w as in pla ce. After rejecting most of FOMC s arguments against immediate disclosure, the Court concluded, from some of the legislative history of FO IA, that §552(b)(5) incorporated a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Go vernme nt itself in the process leading -20- up to awarding a contract. Id. at 360, 99 S. Ct. at 2812, 61 L. Ed.2d a t 603. (Em phasis added). 3 The Court held that the Directives were confidential and commercial in nature and that, in a broad way, they were relevant to th e process for awarding contracts the purchase of Government securities in the open market. Still, the Court noted that the privilege for such in formation was not c omplete, even under the civil discovery rules, and it approve d an exem ption und er §552(b )(5), for the lim ited period of 45 days, only to the extent that the Directives contain sensitive inform ation not oth erwise av ailable, and if immedia te release of these Directives would significantly harm the Governm ent s monetary functions or commercial interests. Id. at 363, 99 S. Ct. at 2813, 61 L. Ed.2d at 605. The case was remanded for the trial court to make those determinations. In conformance with Merrill, the lower Federal courts have shielded, on a temporary basis, such information as a real estate appraisal obtained by a Federal agency to assist in determining the price to be asked for s urplus pr operty (Government Land Bank v. General Services Admin., 671 F.2d 663 (1st Cir. 1982)), data used by the A rmy in preparing an in-house bid in competition with bids from private con tractors and th at, if released prior to the op ening of a ll bids, wou ld allow other bidders to anticipate the Army s bid (Morrison-Knudsen Co. v. Dept. of the Army of U.S., 595 F . Supp. 3 52 3 This condition is important to note. SG §10-617(d) requires a custodian to deny inspection of any part of a public record that contains confidential commercial or financial information that was obtained from another person or governmental unit. The University does not contend that the information at issue here is of that character and does not assert a §10-617(d) privilege. -21- (D.D.C. 1984) , aff d., 762 F.2d 138 (D.C.Cir. 1985)), and conceptu al design rep orts prepared in order to fix the scope and estimate the cost of projects which, if released prem aturely, could be detrimental to the process for selecting architects and engineers for the project (Hack v. Department of Energy, 538 F. Supp. 109 8 (D.D.C. 198 2)). We agree with the Unive rsity that the limited and time-sensitive exemption for confidential commercial or financial information that has been read into FOIA, §552(b)(5), is part of SG §10-618(b) as well. That kind of information may be shielded from discovery by a protective order under Maryland Rule 2 -403, as it is under F.R. Civ. Proc. 26(c). That does not avail the University in this case, however, for two reasons. For one thing, the University does not assert a time-limited privilege, as was recognized in the Federal cases, but seems to assert that th e numbe r in question m ay never be revealed. That extends well beyond what the Federal courts have allowed under §552(b)(5). More important, for the reasons discussed with respect to the deliberative process privilege, w e fail to see how the number would disclose any time-sensitive confidential commercial information. As we have indicated, it is an aggregate number that does not reveal Mr. Mitchell s, or anyone else s, views as to the validity or value of claims or the future status of the proje ct. Conclusion -22- For the reasons stated, we sh all affirm the Circuit Co urt judgme nt with respect to redacted information other than the number for foreca sted total cost o f the Stam p project. As to that number, as it appears on the requested records, we shall reverse the judgment and remand f or entry of an o rder directing the Unive rsity and the custodians of the records to permit inspection of that information and for such ancillary relief as may be appropriate. JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO CIRCUIT COURT FOR PRINCE GEOR GE S COUNTY FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH T HIS OPIN ION; C OSTS T O BE P AID BY APPELLEES. -23-

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