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Hogan 'executive privilege' email troubles open-government advocates

Gov. Larry Hogan, shown during his state of the state speech, campaigned on a pledge to bring more transparency to government in Annapolis.
Gov. Larry Hogan, shown during his state of the state speech, campaigned on a pledge to bring more transparency to government in Annapolis. (Barbara Haddock Taylor / Baltimore Sun)

Gov. Larry Hogan may have campaigned on a pledge to bring more transparency to government in Annapolis, but his lawyer has urged agency heads and staff to stamp a claim of "executive privilege" — the civilian equivalent of "top secret" — on all their internal correspondence, emails and documents.

Within two weeks of taking office, an email from Robert F. Scholz, the governor's chief legal counsel, went out to top officials or their aides in a variety of departments, agencies and offices advising them to post a triple-barreled, capitalized claim of secrecy on all written communications with the governor or his staff.

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It should say, he wrote, "CONFIDENTIAL, FOR INTERNAL USE ONLY – PROTECTED BY EXECUTIVE PRIVILEGE."

In the email, a copy of which was obtained by The Baltimore Sun, Scholz described the law on executive privilege as "a little murky."

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He went on to say that despite labels, basically the only documents that can legally be kept from the public under an executive privilege claim are those containing "opinions, recommendations and deliberations used to arrive at policy decisions."

"Nevertheless," Scholz concluded, "I recommend its use whether on all documents, memos, etc., including those from and to the agencies, the Governor's staff and the Governor."

First Amendment and open-government advocates say they're troubled by what seems to be a move to routinely stamp documents with warnings to keep them secret. And they note that the claim of "executive privilege" has until now rarely been invoked by state officials in trying to shield their written communications from public scrutiny.

"It feels like they're setting it up to shield more information" from the public, said Rebecca Snyder, executive director of the Maryland-Delaware-D.C. Press Association.

A Hogan spokesman said the governor is committed to open government, and dismissed the email as insignificant.

"This is clearly something the State House legal counsel recommended out of an abundance of caution," said spokesman Doug Mayer, "but as the quotable Will Rogers once said, 'The minute you read something that you can't understand, you can almost be sure it was drawn up by a lawyer.' "

Mayer said the confidentiality stamps on documents would have no bearing on whether the public would be entitled to see them. He contended that The Sun was "making a mountain out of a molehill" by publicizing the email, which he said went to "a handful of people on the governor's staff."

In fact, the email obtained by The Sun listed as recipients at least 18 individuals at nine agencies, departments or offices, including the Department of Veterans Affairs and the Maryland Institute for Emergency Medical Services Systems. All of the recipients work elsewhere than on the second floor of the State House, where the governor and his immediate staff have offices.

Mayer said he didn't know how it might have reached other offices. He said the administration will follow the law in deciding what to make public regardless of whether there's a confidentiality claim printed on documents.

Snyder noted that Hogan has publicly championed openness in government, particularly with regard to state purchasing decisions, and said she was surprised by the email.

"It strikes me as a disconnect that he would be saying, 'Oh, openness is great — as long as it doesn't apply to me,'" she said.

The Maryland Public Information Act gives the public the right to examine government records without unnecessary cost and delay. But under the law, certain types of documents can be withheld, such as personnel files and business trade secrets.

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"The whole point of the Public Information Act is that almost all of the documents created by government are supposed to be open and available to the public," Attorney General Brian E. Frosh said when asked about the issue. He added that "the vast majority are not protected by executive privilege."

Frosh declined to give his view of the email, noting that the governor is his client.

In a rare state court case testing an executive privilege claim, The Washington Post successfully sued to see then-Gov. Parris N. Glendening's telephone logs and appointment calendars.

In its 2000 ruling, the Maryland Court of Appeals declared that under the law, all of a governor's records are generally assumed to be open for public scrutiny and ordered the release of the logs and calendars sought by the newspaper. The court allowed Glendening to withhold some other documents.

State Sen. Jamie Raskin, a law professor at American University, said the advice by Hogan's lawyer in the email basically tracks the court ruling. But he said he's concerned about the practical effect of urging government employees to routinely stamp their communications as "protected by executive privilege."

"I hope that the recipients [of the email] are not lured into believing that anything they say is suddenly secret simply by putting the magic words on a document," Raskin said. The Montgomery County Democrat is chief sponsor of a bill to strengthen the state public-information law.

While a confidentiality claim on a document may not stand up to legal review, advocates contend that having to appeal a denial or go to court could lead to delays or even denial of information the public is entitled to see if the requesters lack the funds or stamina to pursue the issue.

In late 2013, then-Lt. Gov. Anthony G. Brown cited "executive privilege" in refusing to let The Sun see any emails he'd written concerning the bungled launch of the state's health insurance exchange. The paper did not sue.

"Unless you're willing to go to court, you're over a barrel," said the press association's Snyder.

Jennifer Bevan-Dangel, executive director of watchdog group Common Cause Maryland, said she worries that stamping documents at the least would ensure that anyone who asks to see them would have to wait — probably weeks — for a lawyer to review them.

"The more transparent the government is run, the more public trust there is, and the stronger the ultimate decisions become," she said. "So we would hope that this isn't an attempt to start avoiding public review of public decision-making."

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