Maryland Supreme Court rules in BALT and OJB’s favor- BPD’s fee waiver denial was arbitrary and capricious.

Baltimore, MD—  On Thursday, September 1, 2023, the Maryland Supreme Court ruled Baltimore Police Department’s denial of Open Justice Baltimore’s fee waiver request was arbitrary and capricious. As a result, the Court ordered BPD to reconsider, with the Court’s new direction, whether releasing the files and waiving the fee is within the public’s interest. 

This ruling comes after four years of litigation on behalf of OJB by BALT’s Legal Director, Matthew Zernhelt. OJB requested the $245,670 fee for public records investigating BPD’s use of force be waived, to which BPD unreasonably denied. 

In the opinion, Justice Johnathan Biran writes “a denial of a fee waiver, after concluding that it would be in the public interest, would necessarily be an arbitrary and capricious administrative action” and that the denial of the waiver would exacerbate public controversy and contribute to a lack of transparency.

“An arbitrary fee wall prevents accountability. BPD cannot demand unreasonable fees for the community to get a window into how police misconduct is being handled,” states Zernhelt.

Justice Biran stated that BPD “should have included consideration of whether the records would shed light on that controversy” and that BPD’s reasoning for denying the fee waiver request was rendered moot.

BPD’s initial argument was that OJB’s reasoning for public purpose was too “vague” to discern if disclosure would benefit the public. We are heartened that the Court found that due to public controversy concerning BPD misconduct, “the public interest purpose that would be served by disclosure of the closed use of force investigation files was plainly apparent.”

BPD’s argument that OJB could pay the fees was found fundamentally at odds as the MPIA imposes no burden on the requestor to demonstrate their inability to pay. 

The court was not satisfied with BPD’s argument that the files would be too heavily redacted to make sense to the public, stating “We will not sustain an MPIA fee waiver denial based on mere conclusory statements.”

The ball is now in BPD’s court and we urge BPD to act in good faith and prioritize transparency. We will continue to work to support community members fighting for justice to move power back into the community.