Baltimore police ‘arbitrary and capricious’ in denying public records fee waiver, high court rules

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The Maryland Supreme Court agreed Thursday that the Baltimore Police Department’s refusal to waive a $245,000 fee for public records of investigations into officers’ use of force was “arbitrary and capricious” and ignored the public’s interest in the files.

The unanimous decision is the first time the state’s top court has weighed in on the denial of a public record fee waiver.

Justice Jonathan Biran, who authored the 63-page opinion, found that the police department’s denial of an advocacy group’s fee waiver risked heightening the public’s perception that “BPD has something to hide.”

“In light of the public controversy concerning misconduct by BPD officers, the public interest purpose that would be served by disclosure of the closed use of force investigation files was plainly apparent,” Biran wrote.

The Supreme Court remanded the case to BPD, which now must reconsider the fee waiver under the guidelines provided by the court.

The decision is a victory for Open Justice Baltimore, an advocacy group that uses data to offer the public increased transparency about the Baltimore Police Department.

“Police misconduct must be brought out into the light,” said Matthew Zernhelt, a lawyer with the Baltimore Action Legal Team who represented Open Justice Baltimore.

“This is a win for government transparency. We will continue to work to support community members fighting for justice.”

A request for comment from the city was not immediately returned Thursday.

Open Justice Baltimore sued in 2020 after BPD asked the nonprofit for $245,123 to release thousands of pages of investigative records into police officers’ uses of force. Open Justice Baltimore asked the department to waive its fees, arguing that the release of the records was in the public’s interest.

“BPD owes the community insight into its operations and accountability of its officers, as officers have caused disruption and harm throughout the city,” Zernhelt wrote in court filings.

But the department rejected the fee waiver request and later argued that the public interest claim was too vague. BPD also claimed that the documents would not help the public understand its operations because the records would need to be heavily redacted prior to their release.

The Supreme Court rejected the department’s arguments and noted that BPD’s “historic lack of transparency about police misconduct issues has played a part in generating the public controversy about officers’ use of force.”

“BPD’s assessment of whether it would be in the public interest to waive the fees for disclosure of the requested closed investigation files should have included consideration of whether the records would shed light on that controversy,” Biran wrote.

“In addition, BPD should have considered whether imposing the full fee on OJB would exacerbate the public controversy surrounding BPD’s use of force by contributing to an appearance of a lack of transparency.”

The Supreme Court also outlined the factors that records custodians should consider when weighing fee waivers. The custodian must consider the requester’s ability to pay the fee and whether there is a public benefit to disclosure, and has the discretion to decide which other factors are relevant to determining whether a fee waiver is in the public interest.

Once the custodian decides that it would be in the public’s interest to waive all or part of the fee, however, they do not have discretion to deny the waiver at that point, the Supreme Court said.