Posted by: Patricia Salkin | May 30, 2017

MD Appeals Court Finds Lease for Proposed New Development was Not “Confidential” Under the MPIA’s Confidential Commercial Information Exemption

Calvert Tract submitted a zoning application to the Prince George’s Planning Board of the Maryland–National Capital Park and Planning Commission seeking to use its 36 acre property for a mixed-use town center. Around the same time, Calvert Tract entered into a lease with Whole Foods for a grocery store to “anchor” the new development. Calvert Tract voluntarily provided a redacted version of the lease to Prince George’s County Executive Rushern L. Baker “as part of the ongoing discussions of the development of the property.” The Planning Board approved Calvert Tract’s zoning application, which was then sent to the District Council, which also approved the application. In April 2012, Petitioner filed a Maryland Public Information Act (“MPIA”) request with Baker seeking access to the lease between Whole Foods and Calvert Tract. The Prince George’s County Office of Law denied Petitioner’s request, stating that the lease was not subject to MPIA disclosure. Petitioner then filed a complaint against Baker in the Circuit Court for Prince George’s County seeking access to the lease. The court granted Calvert Tract’s motion to intervene as a defendant, and both Calvert Tract and Baker filed motions for summary judgment arguing that the lease was exempt from disclosure as confidential commercial information. The trial court held the lease constituted confidential commercial under the federal Freedom of Information Act (“the FOIA”) and granted summary judgment. The Court of Special Appeals affirmed.

On appeal Petitioner argued that the MPIA’s confidential commercial information exemption was different from the FOIA’s, in that the FOIA exemption applied to entire documents, rather than information within those documents. Here, the trial court failed to either direct the custodian to provide an index or conduct an in camera review to determine whether the lease contained non-confidential information subject to disclosure. Instead, the only information provided to the trial judge regarding the contents of the lease was an affidavit from Jane Cafritz, a Calvert Tract employee, which stated that the lease “was the product of extensive confidential negotiations between Calvert Tract and Whole Foods,” and that, “Calvert Tract does not customarily publicly disclose its commercial leases.” The court found that this was not a sufficient description for the trial court to determine if all of the information within the lease fell within the confidential commercial information exemption. As such, Respondents failed to meet their burden of showing that this lease was protected in its entirety from disclosure because they did not demonstrate that Calvert Tract would not “customarily” disclose any of its contents. The court therefore held that summary judgment should not have been granted in favor of Respondents.

Amster v Baker, 2017 WL 2226684 (MD App. 5/22/2017)

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