With access to information about the city's largest property deals at stake, Maryland's highest court heard arguments yesterday on whether the Baltimore Development Corp.'s closed-door operations can persist.
The city's economic development agency, which has always operated as a "quasi-public" organization, exempt from state open meetings and public information rules, insists the secrecy is lawful and critical to its work.
But the west-side property owners challenging the agency's ways say that with a board chosen by the mayor, a budget funded almost entirely by the city, and responsibility for nearly every major Baltimore development project, the BDC should comply with sunshine laws like any other public body.
The pointed questions and comments of a few of the Court of Appeals judges - including asking why a lawyer on the city staff was defending the BDC - suggested that some of them might agree.
"I've always heard that if it looks like a duck and quacks like a duck, it's a duck," said Judge Dale R. Cathell. "This has a lot of quack to it."
Yesterday's hourlong hearing elevates a debate that began in November 2004, when the owners of nine businesses slated to be seized for the BDC's huge west-side redevelopment project called "the superblock" sued the agency. The business people, echoing a longtime complaint of news reporters, said that the agency refused to let them into meetings or show them development proposals under consideration.
Baltimore Circuit Judge W. Michel Pierson sided with the BDC in June 2005, saying the agency "remains a private corporation with a budget that is independent from City control" and that "its actions are not subject to government veto or control."
This year, Maryland's Court of Special Appeals overturned the Circuit Court decision, ruling the BDC must share documents and open its meetings. After that decision, reporters rushed to submit public-records requests to the BDC - requests all on hold as the agency awaits the outcome of yesterday's hearing, its last avenue of appeal.
The essence of the BDC's argument is technical: Its attorneys argue that public information laws don't apply to the agency because it isn't a public body - as public bodies are defined by state law.
Quibbling over state statutes absorbed much of the Court of Appeals debate. However, Assistant City Solicitor Joshua N. Auerbach also argued that privacy is critical to hashing out development deals - the crux of what BDC does.
"Should the BDC be subject to open-meetings law? It's the answer we've given every time this has come up," he said. "That work very often requires discretion and confidentiality."
But Cathell wanted to know if the city was using the BDC's quasi-public status as a tactic to keep the factors behind its decisions secret.
"Can the city accomplish through one of these development corporations, without public knowledge of what's going on, what it could not do itself without public knowledge?" Cathell asked Auerbach.
The judges also asked the city attorney if it was true that a person could not get a seat on the BDC board without the mayor's recommendation.
"That's correct," Auerbach answered.
So, in effect, the mayor controls the appointments, one of the judges pressed.
As Auerbach carefully answered, saying, "The mayor has very substantial control," Chief Judge Robert M. Bell interrupted with a burst of laughter.
The American Civil Liberties Union, the Institute for Justice and the Maryland-Delaware- D.C. Press Association, which represents 165 newspapers, filed briefs advocating for BDC to operate in the open.
"The reading of the Sunshine Laws urged by the BDC would gut these laws and provide governmental entities an easy and convenient means by which they may avoid public scrutiny and citizen oversight," the Institute for Justice attorneys wrote in their brief.
The institute, which last year before the Supreme Court argued Kelo v. New London, a landmark case that set precedent about how governments can take private property for public use, noted that openness is particularly important when a public body is seizing land for private development.
"In such circumstances," the organization's brief stated, "the Sunshine Laws provide a critically important tool with which those parties facing condemnation may determine whether the government is acting within its bounds."
The plaintiffs said they hope that the court will force the BDC to throw out its decision to award the superblock properties to a New York firm, and that the agency would have to rebid the project in public view.