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. 6 September Term, 2006 ______________________________________ 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: October 18, 2006 Although subdivided in its brief, the single issue presented by Stromberg Metal Works, Inc. in this appeal is whethe r the Circuit C ourt for Prin ce Georg e s Coun ty abused its discretion in denying Stromberg s mo tion for an award of costs and attorneys fees under Maryland Code, § 10-623(f) of the State Government Article (SG), which is part of the State Public Information Act (PIA). In an earlier proceeding, we held that Stromberg, which had filed multiple requests for documents under the PIA, was entitled to certain information that responde nt, the University of Maryland, had denied. Stromberg v. University of Maryland, 382 Md. 15 1, 854 A.2d 12 20 (2004) (Stromberg I). As the alleged prevailing party in that proceeding, Stromberg claims an entitlement to recover costs and attorneys fees expended in the prosecution of that claim $62,546. The Circuit Court disagreed and denied the motion, the Court of Special Appeals affirmed that decision, and so shall we. BACKGROUND Most of the facts relevant to Stromberg s request for information under the PIA, upon which its motion for reimbursement of costs and attorneys fees is based, are set forth in our earlier Opinion and need not be repe ated in any deta il. Suffice it to say that Stromberg was a sub-subcontractor in the renovation of the Student Union building on the College Park campus of the University. At some point, the project fell a year behind schedule and was approximately $2 million over the then-current revised budget. The general contractor had made a significant, but contested, claim against the University, and Stromberg expressed concern whether there would be sufficient funds available to complete the project. On three occasions, it requested various documents relating to the project, including c ertain mon thly reports prepared b y an employee in the Unive rsity s Departm ent of Ar chitecture, Engineering, and Construction who acted as the project manager. We shall refer to those reports as the AE C Repo rts. The Un iversity turned ov er the requested documents thousands of them including unredacted copies of the AEC Reports through Decem ber, 2001. In August, 2002, Stromberg filed a supplemental request for additional documents, including the AEC Reports for and after January, 2002. Although the University turned over the documents requested in the supplemental application, in contrast to its previous responses, it redacted much of the information in the A EC Re ports. That le d to a laws uit filed in the Circuit Court for Prince G eorge s County to enjoin the University from denying access to that information. In response to Stromberg s complaint, the University averred that the redacted information was lawfully shielded under SG §§ 10-615(1) and 10-618(b). Section 10-615(1) requires a custodian to deny inspec tion of pub lic records that are, by law, confidential or privileged; § 10-618(b) permits a custodian to deny inspection of any part of an interagency or intra-agency memora ndum th at would n ot be availab le to a private party in litigation with th e gove rnmen tal unit. As to both sections, the University claimed that the redacted information was protected by some combination of an executive-deliberative process privilege and, for purposes of § 10-618(b), constituted confidential commercial -2- inform ation tha t would not be a vailable to a civil li tigant. The Circuit Court, agreeing with the University s defenses, granted its motion for summary judgment, and we issued a writ of certiorari on our own initiative, prior to any proceedings in the Court of Special Appeals, to consider Stromberg s appeal. We observed, preliminarily, that, although a great deal of information included in the AEC Reports had been redacted, the focus of Stromberg s appeal was on only one item of information a single dollar figure that constituted the project manager s estimate of the total forecasted cost of the project. 1 We therefore limited our consid eration to that o ne item an d found no basis on which to disturb the Circuit Court s ruling with respect to any of the other redacted information. As a further preliminary matter, we rejected Stromberg s argument that the University had asserted the executive-deliberative process privilege in an untimely manner and had thereby waived its right to rely on that privilege. In examinin g the defe nses asserted by the Unive rsity with respec t to the one item , it was clear that there was a paucity of Maryland law directly bearing on the executive- 1 As we pointed out in Stromberg I, 382 Md. at 154-55, 854 A.2d at 1222, the AEC Report was in the f orm of two sp read sheets, one dealing w ith all of the University s construction projects and another dealing with each project individually. The second docum ent con tained m ore info rmation about th at projec t than w as inclu ded in th e first. The indiv idual report f or the Stud ent Union project includ ed inform ation with re spect to (1) the original funding authorization and budget for the project, (2) approved funding and budget changes, (3) current funding and budget for each category of expense, (4) amount of the budget encumbered to date, (5) estimated amount needed to complete the project, (6) final cost forecast, (7) any budget variance, and (8) target and actual dates for start of construction, substantial completion, and project completion. The focus of the appeal w as on item (6 ) the total fo recasted co st of the pro ject. -3- deliberative process and confidential commercial information issues, and, to resolve those issues, we had to borrow from and analyze decisions interpreting the Federal Freedom of Information Act (FO IA). In the en d, we held that the one item of information at issue the compos ite dollar figure estimate on each of th e monthly AEC Reports was not protected by either the executive-deliberative process privilege stated in § 10-615(1) or the interagency or intra-a gency m emora ndum exclus ion in § 10-61 8(b). We concluded that the executive- deliberative p rocess privile ge was lim ited, in this context, to the deliberative process of the highest Executive officials, and that neither the project manager in the University s Department of Architecture, Engineering, and Construction, nor the supervisor to whom the AEC R eports were submitted qualified as such. We also determined that the redacted number in question was almost entirely factual in nature and had no real deliberative quality to it and that it did not constitute confidential commercial information because (1) it w as not the kin d of time-se nsitive inform ation to which that exc eption is often a pplied, a nd (2) the number itself, being a c omposite figure embodying the project manager s estimates of a variety of factors, including all of the significant pending claims, none of which were ind ividually discern ible from th e aggrega te number, wou ld no t reveal anyone s confiden tial v iews as to the v alidi ty or value of an y of the constituent claims or, indeed, as to the future status of the project. Our ultimate judgment was to remand for an order directing the University to permit inspection of that one redacted number on the AEC R eports but to affirm the C ircuit Court s decision in all other respects. -4- Upon remand, th e Univer sity promptly complied with our mandate. This proceeding commenced when Stromberg filed a motion for an award of over $62,000 in counsel fees and costs incurred in pursuing the action to enjoin the University from denying access to the redacted information. It argued that it had prevailed in its quest for the information, that the public benefitted f rom the rele ase of the in formation which, Stromberg contended, addressed the general public s interest and concern over the fiscal man agemen t on a public construction project that was spiraling out of contro l, and that the University s redactions were not reas onably b ased on the law . In resp onse , the U nive rsity essentially conced ed that Strom berg had substantially prevailed in its action and was the refore eligible for an award o f counsel fees and costs. It averred, however, that, in deciding whether an aw ard should be m ade, the court needed to consider whether there was any public benefit to the suit, the nature of Stromberg s interest in the released information, and whether the University had a reasonable basis in law for withholding the information. In that regard, the University denied that there was any public benefit derived from Strombe rg s suit and main tained, conv ersely, that the action to obtain the redacted information was solely for Stromberg s pecuniary benefit, in that it was then a participant in a multi-m illion dollar claim against the U niversity. Finally, the U niversity insisted that, although this Court required that the redacted information be supplied, the University ha d a reason able basis in la w for initially w ithholding it. After considerin g the evidence su bmitted in su pport of an d in oppo sition to -5- Stromberg s motion and the arguments of the parties, the court denied the motion, concluding in a brief memorandum and order that, although Stromberg did substan tially prevail in its action: 1. There is no benefit to the public apart from what the Plaintiff derived fro m this suit; 2. The nature of the Complainant s interest in the released information is private and pecuniary; and 3. The agency s withholding of the information had a reasonab le basis in t he law . The Court of Spec ial Appeals, in Strombe rg s appeal fro m that dec ision, agreed with the Circuit Court s findin gs and therefo re affirm ed. Stromberg v. Univ. of Maryland, 166 Md. App. 190, 897 A.2d 1085 (20 05). The in termediate a ppellate cou rt found tha t no evidence had been presen ted to the Circuit Court to de monstrate that the disclosure of the cost of the subject project would generate considerable benefit to the public and outweigh appellant s personal and commercial interest or the University s reasonable basis for withholding the information. Id. at 205, 897 A.2d at 1094. DISCUSSION Stromberg does not d ispute that its eligibility for an award of counsel fe es and co sts proceeds solely from SG § 10-623(f), which provides: If the court determines that the complainant has substantially prevailed, the court may assess against a defendant governmental unit reasonable counsel fees and other litigation -6- costs tha t the com plainan t reason ably incu rred. That provision was not part of the original enactment of the PIA in 1970. T he only sanction then provided was a $1 00 crimina l fine impo sable on any person who willfully and knowin gly violated a provision of the statute. The availability of judicial review and other civil remedies, including the allowance of counsel fees and costs against the governmental entity (rather than against any person ) came in 1978. What is now SG § 10-623(f) was obviously patterned a fter the analo gous prov ision in FOIA, 5 U.S.C. § 552(a)(4)(E), which Congress added to FOIA in 1974.2 Both SG § 10-623 and 5 U.S.C. § 552(a)(4)(E) require as a condition of eligibility for an award of fees and expenses that the complainant have substantially prevailed in its judicial action seeking the information and both make clear that, eve n if that con dition is met, the making and amount of an a ward remains d iscretionary with the court. As we observed in Kirwan v. The Diamondback, 352 Md. 74, 96, 721 A.2d 196, 206-07 (1998), howev er, neither statute sets forth any particular criteria to guide the court in the e xercise of its 2 Section 552(a)(4)(E) provides that [t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. We have recognize d, more ge nerally, that the pu rpose of th e Maryland PIA is virtu ally identical to that of the Federal FOIA and that, except where there may be some relevant differences in the two statutes, we may, and should, look to persuasive interpretations of the Federal Act. See Faulk v. State s Attorney for Harford Co., 299 Md. 493, 506, 474 A.2d 880, 887 (1984); Fioretti v. Board of Dental Examiners, 351 Md. 66, 76, 716 A.2d 258, 263 (1998); Police Pa trol v. Prince George s County , 378 Md. 702, 722, n.8, 838 A.2d 1191, 1203, n.8 (2003). -7- discretion. Following the analysis of the Court of Special Appeals in Kline v. Fuller, 64 Md. App. 375, 386, 496 A.2d 325, 331 (1985), we concluded that a court must consider at least three factors: (1) the ben efit to the pub lic, if any, derived f rom the su it; (2) the nature of the complainant s interest in the released information; and (3) whether the agen cy s withholding of the information had a reason able ba sis in law . Those factors emanated from the views expressed by Congress when it enacted § 552(a)(4)(E). A rather detailed account of the legislative h istory of that prov ision is set forth in Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704 (D .C.Cir. 1977) and Cuneo v. Rumsfield , 553 F.2d 1360 (D.C. Cir. 1977), and although we need not recount that history in full, some of it is particularly relevant. Section 552(a)(4)(E) was the product of a compromise between S. 2543 and H.R. 12471 . The Senate Bill actually contained those factors, although the second one identified in Kirwan was separated into two.3 The Sen ate Judiciary Committee explained in its Report on the bill (Report No. 93-854, 93rd Congress, 2d Sessio n, to accom pany S. 254 3, May 16, 1 974) that: 3 S. 2543 p rovided, in re levant part, tha t [i]n exerc ising its discretion under this paragraph, the court shall consider the benefit to the public, if any, deriving from the case, the commercial benefit to the complainant and the nature of his interest in the records sought, an d wheth er the Go vernmen t s withhold ing of the re cords had a reasonab le basis in law. -8- (1) Under the first criterion p ublic bene fit a cou rt would ordinarily award fees, for example, where a newsman was seeking information to be used in a publication or a public interest group was seek ing inform ation to further a project benefitting the general public, but it would not award fees if a business was using the FOIA to obtain data relating to a competitor or as a substitute for dis covery in private l itigation with th e gove rnmen t. Id. at 19. (2) Under th e second criterion commercial benefit to the complainant a court would u sually allow rec overy whe re the com plainant w as indigent o r a nonpro fit public interest grou p but wo uld n ot all ow r ecov ery if it was a large corporate interest (or a representative of such an interest). Id. (3) Under the third criterion the n ature of the comp lainant s interest in the records a court would gen erally award fees if the complainant s interest in the information sought was scholarly or journalistic or public-interest oriented, bu t would n ot do so if h is interest was of a frivolous or purely commercial nature. Id. (4) Under the fourth criterion reasonableness of the non-disclosure a court would not award fees w here the govern ment s w ithholding h ad a colora ble basis in law but would ordinarily award them if the withh olding app eared to be merely to avo id embarrassment or to frustrate the requester. Id. Summarizing the interplay of these criteria, the Senate Judiciary Committee cogently observed: -9- [T]here will seldom be an aw ard of attorneys fees when the suit is to advance the private commercial interests of the complain ant. In these cases there is usually no need to award attorneys fees to insure that the action will be brought. The private self-interest motive of, and often pecuniary benefit to, the complain ant will be sufficient to insure the vindication of the rights given in the FO IA. The c ourt should not ordinarily award fees under this situation unless the government officials have been recalcitrant in their opposition to a valid claim or have been o therwi se enga ged in o bdurat e beha vior. Id. The House B ill did not include any criteria to guide the co urt s discretion, and, on that matter, the Senate-House Conference Committee accepted the House version and excluded the criteria from the bill. The Conference Committee was ca reful to note in its Report, however, that, by not including those criteria, the conferees did not intend to make an award of attorneys fees automatic or preclude the courts from tak[ing] into consideration such criteria in exercising discretion. It pointed out, rather, that the existing body of law on the award of attorney fees recognize such factors and that a statement of the criteria may be too delimiting and is unnecessary. House of Representatives Report No. 93-1380, 93rd Congress, 2d Session, to accompany H.R. 12471, Joint Explanatory Statement of the Committee of Conference, at 10. The Federal courts, in applying § 552(a)(4)(E), have routinely recognized and given effect to the four criteria that had been inclu ded in the S enate Bill, often citing as persuasive authority the Sen ate Jud iciary Co mmitte e Rep ort. See, for exam ple, Education/Instruccion, Inc. v. U.S. Dept. of Housing and Urban Dev., 649 F.2d 4 (1 st Cir. 1981) ; Chamberlain v. -10- Kurtz, 589 F.2d 827 , 842 (5 th Cir. 197 9), cert. denied, 444 U.S. 842, 100 S. Ct. 82, 62 L. Ed.2d 54 (1979); Detroit Free Press, Inc. v. Dep t of Justice, 73 F.3d 93, 98 (6 th Cir. 1996); Polynesian Cultural Center, Inc. v. N.L.R.B., 600 F.2d 1327 , 1330 (9 th Cir. 1979) ; Long v. U.S. I.R.S., 596 F.2d 362, 37 0 (9 th Cir. 1979), cert. denied, 446 U.S. 917, 100 S. Ct. 1851, 64 L. Ed.2d 2 71 (1980 ); Anderson v. Secretary of Health and Human Services, 80 F.3d 1500, 1504 (10th Cir. 1996) ; Nationwide Build ing Maintenance, Inc., supra, 559 F.2d at 710-13; Weisberg v. U.S. Dept of Justice, 745 F.2d 1476, 14 98 (D.C . Cir. 1984); Muffoletto v. Sessions, 760 F. Supp. 268 (E .D.N.Y. 1991 ). So hav e we. See Kirwan, supra, 352 Md. 74, 721 A.2d 196. Because the University has essentially conceded (or, at least, does not contest) that Stromberg substantially prevailed in the earlier proceeding, we shall not disturb the Circuit Court s finding to th at effect. 4 The question, then, is whether the Circuit Court failed to give correct consideration to the relevant factors and thereby abused its discretion in denying an award. Public B enefit 4 As we pointed out in Stromberg I, Stromber g compla ined initially abou t virtually all of the many redactions made by the University in the AEC Reports but, in its appeal from the C ircuit Court s summa ry judgment, e ssentially aband oned its com plaint as to everything but the one com posite number. A s a result, we affirmed the Circuit Court s ruling that Stromberg w as not entitled to any of that other inform ation. The only victory won by Stro mberg w as as to the co mposite nu mber. W hether Stro mberg, in f act, substantially prevailed in its action is not at all clear. -11- The first fa ctor is whe ther any public benefit was derived from Stromberg s limited success. The Circuit Court held that there was no public benefit. Stromberg urges that such a finding is erroneous as a matter of law, because there is always some public ben efit from judicial enforcement of the PIA, from requiring g overnm ent agenc ies to comp ly with the law. In its conce ption, every judicial victory would place the applicant at least on first base an d more likely on se cond. It is true, of course, in a very general way, that the public is ordinarily benefitted whenever a government agency is required by a court to follow the law, but, as m ost courts have made clear, that is not the focus of provisions like § 552(a)(4)(E) of FOIA or SG § 10623(f). See Blue v. Bureau of Prisons, 570 F.2d 529, 53 3-34 (5 th Cir. 1978) ; Fenster v. Brown, 617 F .2d 740 , 744-4 5 (D.C . Cir. 1979); Aviation Data Service v. F.A.A., 687 F.2d 1319, 1322-23 (10th Cir. 1982); Simon v. United States, 587 F. Supp. 1029, 1032 (D.D.C. 1984); Alliance for Respon sible CFC Policy, Inc. v . Castle, 631 F. Supp. 1469, 1471 (D.D.C. 1986). The Blue court explain ed that, although doub tless true that the successful FO IA plaintiff necessarily acts in some degree for the benefit of the public by bringing the Government into compliance with FOIA and securing to the public the benefits presumed to flow fro m public d isclosure of governm ent inform ation, the Sen ate Report s reference to disclosure to the press and public interest organizations in its discussion of that criterion, strongly suggest[ed] that in weighing this factor a court should take into account the degree of dissemination and likely public impact that might be expected from a particular -12- disclosure. Blue v. Bureau of Prisons, supra, 570 F.2d at 533 (em phasis added). Thus, the court continued, this factor rather sp eaks for an aw ard where the co mplainant s victory is likely to add to the fund of information that citizens may use in making vital political choices. Id. at 534. The Fenster court follow ed that app roach as w ell. Notwithstanding the Senate Judiciary Com mittee s reference to requests made by news and public interest organizations, we do not believe that the public interest criterion was intended to be, or should be, limited to requests made by those kinds of bodies. The focus of this criterion, which, of course, is not itself determinative but must be balanced against the others, should rather be on the nature of the information requested and, to some extent, although th is implicates th e third criterion as well, what use the requ ester intends to and does make of it. The record here indicates that there was public interest in the delays and cost overruns with respect to the Student Union renovation project. Stories appeared in the public press and in the Univ ersity s student ne wspape r regarding the matte r, and one or more articles noted this Court s decision in Stromberg I. There is nothing in the record, however, to show that Stromberg, or anyone else, ever disseminated, or intended to disseminate, either to the news media or otherwise to the public generally, the compos ite number s in the AE C Repo rts that Stromberg was ultimately successful in obtaining, or that any segment of the public, other than Stromberg, ever indicated any interest in learning of or using those numbers for any public purpose. On this record, therefore, it seems apparent that Stromberg wanted and -13- used the inform ation entirely for its own purpose and that there really was no public b enefit from the actual disclosure of the AE C num bers beyond the genera l public benefit pre sumably accruing from any disclosure re quired by a co urt. Commercial Benefit to Stromberg Nature of Stromberg s Interest in the Information As we did in Kirwan, we shall consider these two f actors together, because they are usually related and are clearly related in this case. These factors in a way a flip side of the first eman ate directly from the very purpose and function of the fee-shifting provision. As was noted in the S enate Judiciary Comm ittee Report on S. 2543, such a provision was seen by witnesses as crucial to effectuating the original congressional intent that judicial review be available to reverse ag ency refusals to adhere strictly to the Act s mandates that [t]oo often, the barriers presented by court costs and attorneys fees are insurmountable for the average person requesting information, allowing the government to escape compliance with the law . Sena te Rep ort No . 93-85 4, supra, at 17. As the Senate po inted out, however, fee-shifting will seldom be warranted when the suit is to advance the private commercial interests of the c ompla inant, because th e self-interest o f the com plainant in that setting w ill suffice to insure the vindication of the rights given in the FOIA. Id. at 19. As one court observed, the public should not be required to finance the investigation of a FOIA plaintiff who makes the request with an eye towa rd pros ecuting some lit igation t o his ow n bene fit. Education-Instruccion, Inc. v. U.S. Dep t of Housing and Urban Dev., 87 F.R.D. 112, 116 -14- (D. M ass. 198 0), aff d, 649 F.2d 4 (1 st Cir. 1981). As we have just indicated, on the record in this case, it is beyond legitimate disp ute that Stromberg sought and used the information in the AEC Rep orts for its own pecuniary benefit, to assure itself th at there wo uld be suf ficient fund s to complete the project and pay its invoices for the work it performed. At no time, ever, did Stromberg indicate any interest in the public dissemination of the information, in order to add to the fund of knowledge regarding the project. These factors thus weigh heavily against a fee-award. Reasonableness of Initial Non-Disclosure Stromberg s argumen t that the Un iversity had no re asonable b asis in law for denying inspection of the redacted inform ation rests essentially on the fact that we rejected the University s defenses and directed that the information be supplied. Because we held that the information was not protected by executive-deliberative privilege and was not confidential commercial information, the University, in Stromberg s view, had no colorab le basis for denying inspection. We do not agree. Although this Court had discussed the Constitutionally-derived principle of executive privilege in earlier cases, it was necessary for us to borrow heavily from Federal cases interpreting FOIA to resolve the more precise question of whether the redacted information on the AEC Reports was properly shielded under SG § 10-615(1) or § 10-618(b). Th ere were no clear precedential rulings from this Court prior to our Opinion in Stromberg I. -15- As we have observed, the University had turned over thousands of documents to Stromberg, including, on earlier occasions , unredacted AEC Reports. T here is no indication of any intent on the University s part to obstruct or frustrate Strom berg or to w ithhold information for which there was any public clamor. Rather, guided by the advice of the Attorney General s Office, the University conclude d, in respon se to the sup plementa l request, that certain information included in the AEC Repo rts was lawfu lly subject to shield. It is also of some significance, in judging the reasonableness of the University s position, that the Circuit Court had agreed with that position and entered summary judgment in the University s favor. Although none of these factors, individually, is conclusive or even paramount, when c onsidered together the y strongly suppor t a determina tion that the University s redaction, though ultimately held to be wrong, was not unreasonable. Upon these findings and a balance of the relevant factors, we conclude that the Circu it Court did not err or in any way abuse its discretion in denying the motion for an award of costs and attor neys fees and that the judgment of the Court of Special Appeals must be affirmed. JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. -16-

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