It’s a discouraging commentary on attitudes toward inspectors general by many state and local officials that the movement to restrict direct access to agency records by local inspectors general so quickly spread beyond Baltimore.

I find the role of local government attorneys in those jurisdictions especially disappointing.

I’ve said all that I need to say about Baltimore City Solicitor Ebony Thompson’s involvement in the efforts to weaken that city’s Office of Inspector General (OIG).

A widely leaked May 13 memorandum sent to Howard County officials by County Solicitor Gary W. Zuc offered scant hope that attitudes will change any time soon.

In my opinion, Thompson and Zuc gave a well-known 15-year old case that they seem to have just discovered, Montgomery County v. Shropshire (2011), a more restrictive interpretation than necessary that purports to justify putting critical information off limits to IGs.

I’d like to propose an alternative for consideration by them and their bosses.

A Growing Contagion

In addition to the city, three Maryland counties have local inspectors general. The movement to restrict records access and hobble the effectiveness of the IGs that began in the city in January expanded to Montgomery and Howard County.

That movement has not gone down well with the public. Enthusiasm for these watchdog offices from across the political spectrum is undeniable – Baltimore County citizens literally protested in the streets when their IG was under attack last year.

It’s hard to tell if the trend has reached Baltimore County because that county’s OIG has been nonfunctional since the departure of former inspector Kelly Madigan (now the Howard County IG) at the beginning of the year.

I’m not sure the bad situation in Baltimore County could be made any worse.

Montgomery County Inspector General Megan Davey Limarzi said in February that, for the first time in her six-year tenure, restrictions similar to those imposed on Baltimore Inspector General Isabel Cumming were imposed on her access to county records.

Despite some recent improvement in Howard County, Madigan states that her access to records falls short of what she needs to do her job.

The May 13 memorandum sent by the Howard County solicitor, in which he gave his opinion on the application of the Maryland Public Information Act (MPIA) to the IG’s access to county records, explains why.

The good news is that Zuc believes that neither the attorney-client privilege nor other “discretionary denials” under the MPIA can be used by custodians to deny the IG access to records.

That conclusion differs sharply from the conclusion reached by City Solicitor Ebony Thompson on the city IG’s access, notwithstanding substantially identical language in city and Howard County law governing access to public records by their IGs.

I’ve noted before that I have no idea how Thompson concluded that the attorney-client privilege could be used to deny the city IG access to records despite a Maryland Supreme Court case, Caffrey v. Department of Liquor Control for Montgomery County (2002), indicating that she was flat-out wrong.

The bad news is that Zuc, like Thompson, didn’t mention language in Shropshire that I believe can be used to argue that an IG must be given access to personnel records, records that contain information about the finances of individuals, etc., if those records contain information necessary to conduct an investigation within the IG’s jurisdiction that can’t be gathered from “primary sources.”

Shropshire Suggests a Balancing Test

The Shropshire decision held that records of police internal affairs investigations were personnel records (which no longer is true because of Anton’s Law passed by the General Assembly in 2021) and that the prohibition against disclosure of personnel records in the MPIA generally applies to local inspectors general, but it does not rule out exceptions.

The relevant language is in the final footnote on the final page of the decision:

“The County also states that even if the internal affairs investigation records are ‘personnel records,’ the Inspector General requires access to those records to investigate the efficacy of the standards and methods employed by the Department. The County’s assertion of a special need is without merit, because the Inspector General can obtain information about Sergeant Shropshire’s and Captain Parker-Loan’s handling of the traffic accident by culling primary sources.” (Emphasis added.)

It is clear from the court’s decision that it was cognizant of a point made nine years before Shropshire in an opinion issued by the Montgomery County Office of the County Attorney.

The opinion pointed out that the Maryland legislature had conferred extensive powers on charter counties to run large, complex governments through the Express Powers Act. Consequently, the legislature undoubtedly did not intend to cripple the counties’ ability to root out fraud, waste and abuse in those governments by enactment of the MPIA and, if possible, the statute shouldn’t be construed to do so.

The Maryland legislature did not enact the MPIA to cripple the ability of Baltimore City and county IGs to root out fraud, waste and abuse.

Accordingly, the Shropshire court suggested that the privacy rights ensured by the MPIA must be balanced against other important public interests, citing with approval a Maryland Appellate Court decision that held that a trial judge could grant a criminal defendant access to a personnel record “after having balanced the criminal defendant’s need for relevant information in the records against the privacy rights of other persons and the custodian’s duty to maintain confidentiality.”

The court also was careful to limit the scope of the Shropshire decision.

The court noted that the internal affairs investigation at issue resulted in a finding of “no administrative violations.” It stated that, as a result, “we do not address whether records of ‘sustained’ complaints may be disclosed to a County’s Inspector General” even though the legal status of the record of an employee disciplinary proceeding as a personnel record does not depend on its outcome.

Again, it was another strong indication that the court was not endorsing a rigid rule without exceptions.

The justices’ message appeared clear: We are not trying to shut down an IG’s legitimate need for access to records.

Reaching a Defensible Policy

The footnoted explanation in the Shropshire decision of the reason that the court did not address the Montgomery County IG’s claim of a “special need” for access to the internal affairs file is by no means a guarantee that the Maryland Supreme Court, in a future case, would hold that an IG can be given access to a personnel record if the IG demonstrates that access is needed for an investigation. But nor does it close the door to that possibility.

Importantly, the footnote distinguished the internal affairs division’s file from “primary sources” of information.

The overwhelming majority of the information needed by an IG comes from “primary sources.” In other words, from information gathered by government agencies from employees, contractors, bidders, program applicants and others, and then recorded in the ordinary course of government business.

It does not come from secondary sources, such as employee personnel records in which information, including information from primary sources, was collected for the specific purpose of evaluating employee performance or investigating employee conduct.

No politician, regardless of party, is fond of an IG issuing unflattering reports about activities under his or her supervision.

I believe that it would be reasonable to advise records custodians that they may give an IG direct access to the primary sources of information defined as personnel records and to other information protected by the MPIA on the basis of a determination that such access is needed by the IG to fulfill the IG’s legal duties. The custodians may also give an IG access to protected secondary sources if the needed information is unavailable from primary sources.

There is no certainty that a policy adopting that advice would be upheld in court. That sometimes is the case when defending important principles, and it is the only policy consistent with the goal of allowing IGs to continue to function until the General Assembly clarifies the law.

Moreover, as observed by IGs Limarzi and Cumming, it has been the de-facto policy for years and, to my knowledge, has never been challenged in court.

City and county attorneys give advice on matters like this; they do not set policy. It is up to the policymakers, not their attorneys, to decide on the degree of risk of adverse consequences that they are willing to tolerate to keep the IGs in their jurisdictions functioning.

Public Needs to Speak Up

According to the results of a survey by the Association of Inspectors General posted by Cumming’s office, local OIGs in Maryland now are in a small minority of offices nationwide without direct access to personnel, financial and other information.

Maryland bears out the conventional wisdom that states dominated by a single political party are not particularly strong when it comes to transparency and accountability.

No politician, regardless of party, is particularly fond of the idea of an IG periodically issuing unflattering reports about activities under his or her supervision. When they achieve power, politicians tend to want to hold on to it, and “bad news” about how they run the government doesn’t serve that goal.

If residents of Baltimore, Howard and Montgomery County want independent and effective IGs, they are going to have to insist on it because they can’t depend on their elected officials to share their wishes. If county officials really did share their wishes, they wouldn’t have so quickly followed Baltimore City’s lead in hobbling their IGs.

The responsibility for the movement to restrict IGs’ access to information rests at the top of city or county government.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.