Glendening loses ruling on privilege

Divided court rules appointment, phone records are public

Some limits recognized

1997 suit sought data on campaign funds, conduct of business

September 13, 2000|By Andrea F. Siegel and Lyle Denniston | Andrea F. Siegel and Lyle Denniston,SUN STAFF

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.

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