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Glendening loses ruling on privilege

THE BALTIMORE SUN

Stripping the Maryland governor of a cloak of secrecy for many of his telephone and office appointment records, a deeply divided Court of Appeals rejected yesterday Gov. Parris N. Glendening's claim that those records are always private.

The 4-3 ruling, apparently the first of its kind for any state's governor, said Maryland law assumes that all such records are to be opened for public scrutiny - the opposite of Glendening's claim of executive privilege and his argument that the law does not cover the governor's office.

But the ruling left Glendening, and future governors, a variety of options to shield some of those files from public inspection.

The key exception recognized by the state's highest court was that all calls made from the governor's mansion in Annapolis, including calls from a home office, would remain confidential and be protected from public access.

However, for calls made from his State House office, the decision would force Glendening to return to court to attempt to justify confidentiality one record at a time. He would be obliged to explain why revealing such things as date, time, place and identity would impinge on the "deliberative process" of his office.

The case stemmed from a Maryland Public Information Act demand by the Washington Post for six months' worth of records from 1996.

Glendening and his two top aides, chief of staff Major F. Riddick Jr. and senior adviser Susan Smith-Bauk, wanted to keep the records confidential to encourage candid conversations with the governor's advisers and to protect negotiations over bringing companies to Maryland.

They also contended that disclosure would intrude on the privacy of those who deal with the governor and interfere with his discussions of potential appointees to judgeships or executive branch posts.

Yesterday's ruling sends the case back to Anne Arundel County Circuit Court for a judge to sort through requests for secrecy in telephone bills and appointment logs.

The substance of the phone calls and appointments was not at issue - though attorneys for the governor argued that inferences could be drawn from the dates and the identities of the other person - as the newspaper sought logs of calls and appointments.

The Post filed the suit in December 1997, as it was writing articles about a fund-raiser held for Glendening in New York City by a company bidding for a major state contract. The suit said the paper wanted the documents "to study the manner in which the governor conducts the business of the state, including the issues of access to the governor's office and campaign financing."

Glendening spokesman Michael Morrill said the governor was satisfied by the ruling and did not consider it a loss. Because the ruling was based solely on state law and not on the U.S. Constitution, Glendening would have no right to appeal.

"It gives some very specific guidelines on how the governor can maintain his privacy but still comply with the state's public information rules," Morrill said.

The court majority held that under the state's public records law, "bills from telephone companies and simple listings of the persons who have appointments with the governor are not" considered letters or memoranda that would be exempted from forced disclosure. The majority opinion was written by Judge John C. Eldridge.

But three judges, including Chief Judge Robert M. Bell, disagreed. Judge Dale R. Cathell, writing for Bell and himself, said that the ruling "may well come home to roost," affecting the court's confidentiality.

Cathell wrote that the ruling, while applying at this stage to a reputable newspaper, opens the door "to any scandal rag searching for controversy in the future."

He said the majority had disregarded the state constitution's guarantee that one branch of government will not intrude on the affairs of another. He also contended that the court could not enforce its decision if a governor balked.

"A mandatory directive ordering a governor to act in this particular way, I suggest, is a pig that will have difficulty trying to fly," Cathell wrote. "If he declines, are we going to hold him in contempt? If he does not open his doors to the Washington Post, will the House of Delegates impeach him and the Senate try him?"

Judge Irma S. Raker also dissented, but on narrower grounds than Cathell and Bell.

An attorney for the Post, Patrick J. Carome, said the newspaper was disappointed with some of the limitations the court majority imposed on public disclosure, but asserted that the court "comes out in favor of disclosure" on the two key legal points.

Those, he said, were rejection of the governor's blanket claim of executive privilege and upholding the governor's duty to obey the state's public records law.

Carome said this was the first such ruling by a state supreme court under a public records law. Courts in California, New Jersey and Virginia have protected their governors from such laws.

House Speaker Casper R. Taylor Jr., an Allegany County Democrat, said the General Assembly plans to review the state records law and could also look at the issue of applying it to the governor. The court's ruling is based solely on state law, which the General Assembly is free to amend.

Senate President Thomas V. Mike Miller, a Prince George's County Democrat, said he wants to study the ruling "and decide where we go from there."

Harry R. Hughes, Maryland's governor from 1979-1987, said he does not believe the court's ruling should have any significant effect on the way a governor is able to do business. "Generally speaking, I think they should be public records, but there are situations where it's legitimate that it should be held confidential," Hughes said.

Former Gov. Marvin Mandel, who served as Maryland's chief executive from 1969-1979, said records of phone calls generally should be kept open, with some exceptions. "I never assumed that was a private record," he said.

Sun staff writer Greg Garland and the Associated Press contributed to this article.

Limits on the governor's secrecy

The Maryland Court of Appeals decision yesterday will force open many of the governor's telephone billing records and schedules of private appointments. The case dealt specifically only with records for six months in 1996, but it lays down legal ground rules that will apply in general:

Telephone records

This covers telephone bills that show the number called, and the date, time and number of the call, but not what was said. Applies to governor and two top aides.

Bills generally must be disclosed for calls made from 14 telephone lines in the State House in Annapolis, with some exceptions.

No bills need be disclosed for calls made from the Governor's Mansion.

No bills need be disclosed for calls made from offices of the governor and the staff at Shaw House government building in Annapolis, in Baltimore, or Washington, D.C., either because no such records exist or because few if any calls were made there.

No bills would have to be made public for calls made by the governor or his aides to state employees at home.

Bills made for calls on portable cell phones assigned to the two aides must be disclosed, with some exceptions. Bills on calls made by the governor's cell phones need not be disclosed, because they were used mainly by troopers guarding the governor.

The governor and his aides could avoid disclosing bills for specific calls if they could show, item by item, that the public release would impair the governor's ability to do his job.

Appointment calendars

This part of the ruling applies to only the governor and covers his handwritten appointment books, electronic schedules, and printed daily schedule of appointments.

Family or "entirely personal" events would be edited out of these schedules before they were made public.

The names of those who had appointments with the governor, including outside advisers and casual visitors, would have to be disclosed, unless the governor could show -- item by item -- that disclosure would impair his ability to do his job.

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