The text messages were pinging to and from Gov. Martin O'Malley's BlackBerry. It was the latter part of October, and Election Day was just around the corner.
He and top advisers traded messages that touched on three referendum questions, all approved by voters on Nov. 6: same-sex marriage, expanded gambling and new congressional districts. In another exchange, O'Malley asked an aide to see about getting $30,000 in ad money for a fellow Democratic candidate.
The election wasn't their only discussion topic. O'Malley's chief of staff also alerted him to the expected resignation of Coppin State University's president. The governor groused to his scheduler about having to don a tuxedo for a United Way fundraiser: "I hate that. Black tie benefit for homeless."
None of the messages were meant for public discourse. The governor's office mistakenly gave the batch to The Baltimore Sun in response to a public records request. It meant to withhold the messages, arguing they were exempt from public records laws, and to share only a four-word note from then-public affairs director Rick Abbruzzese to his boss: "I have your ipad."
Instead, the miscue pulls the curtain back on normally private exchanges. "This is the unvarnished look at the governor and the advice he's getting and what his reactions are," said Jack Murphy, executive director of the Maryland-Delaware-D.C. Press Association.
The errant release also means the public can evaluate whether certain communications should be kept private.
O'Malley spokeswoman Raquel Guillory, who inadvertently transmitted the text messages to The Sun, cited various provisions of the Maryland Public Information Act as reasons for withholding the communications. She said the information was "protected by the attorney/client privilege, protected by the executive and deliberative process privileges, or subject to the personnel records exemption."
Media lawyer Charles Tobin said it seemed appropriate to withhold some messages, such as one discussing a possible deal between casino companies. But Tobin, a Washington lawyer with Holland & Knight who serves as volunteer counsel for the press association, questioned the legal basis for withholding others.
O'Malley's office declined to explain its decisions in detail, saying in a statement that it "strives to ensure openness and transparency with members of the public and with members of the media, and also follows the law about what information, such as personnel records, must be protected."
Jack Schwartz, a former assistant attorney general and expert in Maryland's public records law, said context is key. For example, he said the "executive and deliberative process privileges" are meant "to provide space for kicking ideas around" without fear of publicity. But that's not a blanket exemption, he said.
The Sun first asked in late October for one week's worth of BlackBerry messages sent to or by several members of the Governor's office. The goal was to see how much public business is conducted this way.
The state wanted to charge The Sun $478 for its records but eventually agreed to respond to the request for O'Malley's messages at no cost. That response, containing the inadvertently released messages, was provided March 1.
In one message, O'Malley's chief of staff, Matt Gallagher, briefed him and others on a "deal" between Penn National Gaming Inc. and the Cordish Cos. It had been reported Penn might buy a stake in Cordish's Maryland Live casino at Arundel Mills. Gallagher wrote that he told lottery director Stephen Martino to play it straight if a "POTENTIALLY action-able deal" emerged.
"I said don't rush, don't slow down," Gallagher wrote, but "conduct the type of review they're required to do." He also said it was "suggested that Penn might discontinue their campaign and focus on gaining the [Lottery] Commission's approval." At the time, Penn was trying to defeat the gambling referendum, worried that an expansion would hurt its West Virginia casino.
The investment ended up not materializing, and a Cordish spokesperson last week called it "old news."
In another text message, Gallagher alerted O'Malley that Reginald Avery was resigning as head of Coppin State. "Avery is going to say he is stepping down, wants to do something different, etc.," he wrote. He wrote that "apparently there has been disappointment" among University System of Maryland officials "with his lack of progress on outcomes, most notably retention/graduation rates."
Avery announced his resignation the next day. He didn't return a phone call last week. Tobin said the message shouldn't be withheld as a "personnel" matter because Avery didn't work for the governor's office.
In another message, O'Malley told an aide that John LaFerla, a Democrat making a long-shot bid to unseat Rep. Andy Harris, wanted help: "1. He wants me to come Oct 28th to fundraiser in Belair and 2. send email to my first district friends. 3. Put in a word to Hoyer to try to get him 30k so he can do some radio." U.S. Rep. Steny Hoyer is the second-highest-ranking Democrat in the House.
"Need you to follow-up," O'Malley wrote.
Tobin said he thought that should have been released: "That's a political message, that's not governance," he said. (LaFerla said he never got the requested help.)
Even O'Malley's complaint about the tuxedo deserved to be made public, Tobin said, because he was invited in his capacity as governor.
As it turned out, the event wasn't black tie but "cocktail," meaning men were expected to wear a suit, United Way of Central Maryland CEO Mark Furst said: "We wanted to make it a memorable event and really nice, but we were really conscious about not wanting to go over the top or be ostentatious."
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