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Judge says he'll rule quickly on MDE cleanup papers

THE BALTIMORE SUN

The Chesapeake Bay Foundation's three-year fight to get about 1,000 documents from the Maryland Department of Environment edged closer to a conclusion yesterday, when an Anne Arundel County judge told both sides he would issue a decision quickly.

The nonprofit environmental group suspects that the documents, which it wants to bolster a federal lawsuit seeking a faster cleanup of polluted waterways, would show that the state agency knows it has lagged in complying with the 1972 Clean Water Act.

The foundation contends that the state agency's refusal to turn over the documents violates state public records law, but MDE attorneys say the documents are exempt from public scrutiny.

The arguments centered on the how each side wants Judge Joseph P. Manck to review the case.

Lawyers for the foundation asked Manck to review all the documents privately and decide whether they should be kept confidential or released. But MDE lawyer Jennifer L. Wazenski urged Manck to rule based on the results of the department's administrative appeal.

Wazenski said a "final decision maker," who is an MDE official, reviewed an index of the 1,000 documents, pulled about 100 questionable ones and released 14.

However, the foundation's lawyer, Laura B. Ahearn, said the list is vague and didn't accurately describe the 14 released documents, which could mean the others aren't accurate either.

"[The decision maker] looked at the index I have and determined they were under privilege and not disclosed?" Manck said. "How am I to make a judgment without looking at all the documents?"

Wazenski said the decision maker, unlike the judge, has departmental experience and knew what was exempt by looking at the list.

After it was first denied the documents in 1997, the foundation appealed to an outside administrative law judge. The judge ordered the department to turn over the documents. But MDE then appealed to the "final decision maker."

Wazenski said the documents are exempt under law because they deal with the exchange of ideas and opinions within state government. She said the exemption was created to foster candid exchanges between government employees without fear of public scrutiny.

But Ahearn said instead of determining if the records fit the narrow definition of the exception, MDE denied access to any documents dealing with setting water pollution limits.

Manck said a decision would be forthcoming "with all due haste."

Sun staff writer Andrea F. Siegel contributed to this article.

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