MARYLAND DEPARTMENT OF STATE POLICE v. MARYLAND STATE CONFERENCE OF NAACP BRANCHES, 190 Md. App. 359

SALMON, Judge. The parties to this appeal are the Maryland Department of State Police (“MSP”), appellant-cross appellee, and the Maryland State Conference of NAACP Branches (“NAACP”). The main issue to be resolved is whether about ten-thousand documents that constitute the Maryland State Police’s internal affairs files relating to allegations of illegal racial profiling are “personnel records of an individual” within the meaning of that term as used in the Maryland Public Information Act (“the Act”).

We shall hold that the Circuit Court for Baltimore County erred when it concluded that the records withheld by the MSP were “personnel records” within the meaning of the Act. Therefore, the records must be produced for inspection and' copying by the NAACP. I. The NAACP and the MSP entered into a federal consent decree in 2003 that obligated the MSP to combat racial profiling by its officers. The order was part of ongoing litigation between the parties. See Md. State Conf. of NAACP Branches v. Md. Dep’t of State Police, 72 F.Supp.2d 560 (D.Md.1999); appeal at Bridges v. Dep’t of Md.

State Police, 441 F.3d 197 (4th Cir.2006); on remand, Md. State Conf. of NAACP Branches v. Md. State Police, 454 F.Supp.2d 339 (D.Md.2006). In 2007, the NAACP became suspicious that the MSP was not fulfilling the obligations undertaken when it signed the consent decree. Accordingly, on February 27, 2007, the NAACP filed a request for information pursuant to Maryland Code (1984, 2004 Repl.Vol.), § § 10-611-10-630 of the State Government

Article (i.e., the Act). The NAACP asked for twelve categories of State Police records. Request No. 6 asked the MSP to produce: All documents obtained or created in connection with any complaint of racial profiling, including but not limited to any complaint filed with or investigated by the MSP’s Department or Internal Affairs, including all complaints filed, all documents collected or created during the investigation of each complaint, and all documents reflecting the conclusion of each investigation.

On March 28, 2007, the MSP granted the NAACP’s request as to seven categories of records and denied it as to five categories. Included in the requests denied was request No. 6. Request No. 6 was denied on the sole ground that the documents requested were personnel records of an individual. In support of that denial, the MSP cited

section 10-616(

a) and (

i) of the Act.

Section 10-616 reads, in relevant part, as follows: (

a) In general—Unless otherwise provided by law, a custodian shall deny inspection of a public record, as provided in this section. (

i) Personnel records.

(1) Subject to paragraph (2) of this subsection, a custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information.

(2) A custodian shall permit inspection by: (

i) the person in interest; or (ii) an elected or appointed official who supervises the work of the individual. (Emphasis added.) It is undisputed that the NAACP is neither a “person in interest” nor “an elected or appointed official who supervises the work of the individual” as those terms are used in the Act. The NAACP, by its counsel, sent a letter to the MSP on May 2, 2007, which concerned, among other things, request No. 6.

In that letter, counsel said that the NAACP would have no objection if the custodian redacted from the records the names of the officers and established instead “a unique number or code for each trooper ... [in order for the NAACP] to ascertain whether a particular trooper is referenced in more than one complaint and/or record without divulging that particular trooper’s identity.” The parties could not reach an agreement as to what should be produced.

Accordingly, on September 26, 2007, the NAACP, filed suit in the Circuit Court for Baltimore County, in which it asked the court to compel the MSP to provide it with, among other things, documents covered by request No. 6, i.e., internal affairs records concerning racial profiling complaints lodged against various troopers. Between March and June 2008, the parties conducted discovery and, at the request of the circuit court, the records at issue were delivered to the court for inspection in camera.

The MSP represented to the court that the documents produced were all kept at police headquarters in the MSP’s internal affairs section. After a hearing, the court delivered an oral opinion in which it discussed relevant decisions by the Court of Appeals relating to the meaning of the words “personnel record[s] of an individual” as that phrase is used in

section 10—616(

i) of the Act.

The court concluded that the documents withheld were all personnel records because they “only exist because they represent the complaints of a citizen personally directed to a State Trooper [because of] misconduct, of being intimidated by racial bias, as opposed to legitimate reasons for stopping our motorists.” In the court’s words, “these are the kinds of files that are personnel in nature and represent a thrust against an individual trooper.” Later in his opinion, the judge said: So I felt at the end of the day having read these documents that a fair approach would be to require the State Police to redact the names and identity numbers—all troopers have an identity number—an ID number as well as the complainant’s identification so that people looking at these documents would not be able to tell who the trooper was or who the complainant was, thereby to a great extent protecting the privacy of the trooper while at the same time giving to the Petitioner the right to see the mechanism that the State Police have taken to meaningfully investigate these complaints.

I did not feel it appropriate—and this is on the record—to just claim them all exempt and say NAACP, you’re not getting any of it. I did not feel it fair to say you’re getting all of them and risk privacy rights of the troopers being invaded and all kinds of other problems. I believe the fair approach is to find that middle ground which is what Pm going to do. I have worried continuously about the logistics involved in this. There are lots of documents. The names of the troopers are all over these documents. Names of the complainants are all over these documents.

It is going to be a difficult job to redact these names.... On August 11, 2008, the hearing judge filed an order, of which the first paragraph read: Records responsive to Request No. 6 of Plaintiffs Maryland Public Information Act (“MPIA”) request dated February 27, 2007 constitute personnel records under the MPIA, however, the Court finds that they may be disclosed provided that the names and any identification number of individual Maryland State Police (“MSP”) troopers and the names and identifying information of any complainants are redacted from such records.

Accordingly, pursuant to the MPIA, Defendant shall provide Plaintiff with such records, redacting the names and any identification numbers of individual Maryland State Police (“MSP”) troopers and the names and any identifying information of any complainants. The process for providing Plaintiff with these redacted records is set forth in paragraph 2-6 below.

To avoid the time and great expense that would be required by having the MSP review and redact the thousands of documents relating to the racial profiling complaints, even though, as the court noted, some of the documents would be of no interest to the NAACP, the court’s order provided, in paragraphs 2 through 6, for a procedure whereby three attorneys designated by the NAACP would review the records in unredacted form and identify from those records which ones they wished the MSP to release to it in redacted form.

The designated attorneys were prohibited from disclosing to anyone the names of any Maryland State Trooper or complainant whose names they came across; moreover, the designated attorneys were precluded from taking any notes that reflected such names, and required to destroy all of their notes immediately following the inspection. The MSP filed, on August 21, 2008, an appeal from the court’s order.

As worded by the MSP, the question presented is: Where the circuit court determined that the requested records of police internal affairs investigations are “personnel records” within the meaning of the Maryland Public Information Act, § 10-616(i), which mandates nondisclosure of personnel records, did the circuit court err by ordering an expanded in camera review permitting inspection of the personnel records by the requester’s counsel and by ordering release of all of the requested personnel records with redaction of names and identification?

The circuit court, on September 4, 2008, granted the MSP’s request to stay its August 11, 2008 order. The NAACP filed a timely cross-appeal. It contends, inter alia, that the circuit court erred in holding that the unredacted racial profiling complaint records are “personnel record[s] of an individual” as that term is used in the Act. On October 15, 2008, after the appeal and cross-appeal had been filed, the United States District Court for the District of Maryland, in the case of NAACP v. Md. State Police, et al., civil action No.

FTS-98-1098, ruled on a request for clarification as to what documents the MSP was required to disclose pursuant to its obligation under the 2003 consent decree. The federal court ordered that the MSP disclose to the NAACP redacted copies of the complaints made to the MSP internal affairs division concerning racial profiling. The MSP has already obeyed that order. Accordingly, in this appeal, the issue of whether the complaints of racial profiling need to be produced is not at issue.

The district court, however, in an earlier action to enforce the 2003 consent decree, ruled that the consent decree did not give the NAACP the right to inspect and copy investigative files concerning the racial profiling complaints. Therefore, those are the files that are of concern in this appeal. II. Numerous past Court of Appeals decisions have stressed that the Maryland Public Information Act must be liberally construed “in order to effectuate the [Act’s] broad remedial purpose.” See, e.g., A.S. Abell Publg. Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068 (1983). See also Kirwan v.

The Diamondback, 352 Md. 74, 81-82, 721 A.2d 196 (1998) (collecting cases). The broad purpose of the Act was to ensure “that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government.” A.S. Abell, 297 Md. at 32, 464 A.2d 1068. See also Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 73, 716 A.2d 258 (1998) (same) and Kirwan, 352 Md. at 81, 721 A.2d 196 (1998) (same).

To carry out the Act’s broad remedial purpose the General Assembly commanded that the Act “be broadly construed in every instance with the view towards public access.” A.S. Abell, 297 Md. at 32, 464 A.2d 1068. This means that in doubtful cases, the party requesting information under the Act is favored. Kirwan, 352 Md. at 84, 721 A.2d 196 (“[T]he statute should be interpreted to favor disclosure.”). Nevertheless, the Act protects certain public records from disclosure. While “personnel record[s] of an individual” are included within the broad definition of the term “public record” (See

section 10—611(g)), such records are expressly exempt from disclosure under

section 10-616(

a) and (i). The personnel record exemption is “intended to address the reasonable expectation of privacy that a person in interest has” in his or her personnel records. Univ. Sys. of Md. v. Balt. Sun Co., 381 Md. 79, 99-100, 847 A.2d 427 (2004). See also 78 Op. Att’y Gen. 291, 293 (1993). Racial profiling complaints against Maryland State Troopers do not involve private matters concerning intimate details of the trooper’s private life. Instead, such complaints involve events occurring while the trooper is on duty and engaged in public service.

As such, the files at. issue concern public actions by agents of the State concerning affairs of government, which are exactly the types of material the Act was designed to allow the public to see. A.S. Abell, supra, 297 Md. at 32, 464 A.2d 1068. A State Trooper does not have a reasonable expectation of privacy as to such records. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass.App.Ct. 1, 787 N.E.2d 602, 607-08 (2003) (materials from internal affairs investigation were not subject to exemption because they were not of a personal nature); Burton v.

York County Sheriffs Dep’t., 358 S.C. 339, 594 S.E.2d 888, 895 (Ct.App.2004) (sheriffs department records regarding investigation of employee misconduct were subject to disclosure because the public has a right to know how public employees are performing their jobs and how the department handles employee misconduct allegations). After

section 10—616(

i) became law, COMAR (Code of Maryland Regulations) 17.04.14 was published in order to facilitate implementation of the Act and to guide custodians who control public access to records under the custody of the Department of Budget and Management. COMAR 17.04.14.02 reads: .02

Definitions. A. In this chapter, the following terms have the meanings indicated: B. Terms Defined. (1) “Act” means the Public Information Act, State Government Article, § § 10-601-10-630, Annotated Code of Maryland

(5) Personnel Record. (a) “Personnel record” means any record, regardless of physical form, indexed by name or the employee’s identification number. (Emphasis added.) The records here at issue were not indexed by the name of the employee or by the employee’s identification number. Instead, all the records were kept in one filing cabinet located in the MSP’s Internal Affairs Office.

Thus, if COMAR 17.04.14.02 were to control, the records at issue would not constitute “personnel records.” COMAR 17.04.14.02 does not, however, control because the MSP’s records are not under the custody and control of the Department of Budget and Management. Nevertheless, the regulation is of at least some importance because it demonstrates how an important State agency interprets the words “personnel record[s] of an individual” as used in

section 10-616(

i) of the Act. In our view, the provision of the Act that directly addresses the production of investigatory files like the ones here at issue, is

section 10-618(

a) and (f), which reads, in relevant part: (

a) In general.—Unless otherwise provided by law, if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest, the custodian may deny inspection by the applicant of that part, as provided in this section. (

f) Investigations.—

(1) Subject to paragraph (2) of this subsection, a custodian may deny inspection of: (

i) records of investigations conducted by ... a police department, or a sheriff; (ii) an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or (iii) records that contain intelligence information or security procedures of the Attorney General, a State’s Attorney, a city or county attorney, a police department, a State or local correctional facility, or a sheriff.

(2) A custodian may deny inspection by a person in interest only to the extent that the inspection would: (

i) interfere with a valid and proper law enforcement proceeding; (ii) deprive another person of a right to a fair trial or an impartial adjudication; (iii) constitute an unwarranted invasion of personal privacy; (iv) disclose the. identity of a confidential source; (

v) disclose an investigative technique or procedure; (vi) prejudice an investigation; or (vii) endanger the life or physical safety of an individual. (Emphasis added.) It is illogical to believe that the General Assembly, when it adopted a permissible degree exception for “records of investigations conducted by ... a police department,” and set forth detailed provisions governing when such records could be withheld (see

section 10—618(f)) also intended that a custodian of records must withhold investigatory files of a police department under the much more general “personnel record[s] of an individual” exception as set forth in

section 10-616(i). Because the records the NAACP seeks in this case fit precisely within the class of records governed by

section 10—618(f), we see no reason why its provision should not control, rather than

section 10—616(

i) of the Act upon, which the MSP relies. In other words, the specific statutory provision takes precedence over the more general one. Therefore, access to investigative records of the type requested by the NAACP only could be denied if 1) in its reply to the NAACP’s request No. 6 the MSP relied on the exception set forth in 10-618(

a) and (

f) the MSP believed that inspection of the records by the NAACP would be against the public interest, under 10-618(a). The MSP had 30 days from the date of receipt of request No. 6 to deny the NAACP’s access and ten additional working days to give its reason for denial. Because the MSP did not deny inspection based on

section 10—618(

a) and (

i) it never made an attempt to show that

section 10-618(

a) justified nondisclosure. This would have been difficult to do, in any event, given the obligations imposed on the MSP for the sake of the public by the Federal Consent decree. In Kirwan v. The Diamondback, 352 Md. 74, 721 A.2d 196 (1998), the Court of Appeals had occasion to discuss in some detail the Act’s personnel records exemption. See id. at 84, 721 A.2d 196. The Kirwan case arose when the University of Maryland student newspaper, the Diamondback, filed a public information request to obtain copies of the parking tickets accumulated by Gary Williams, Maryland’s basketball coach. Id. at 79, 721 A.2d 196.

The University of Maryland refused to give the Diamondback access to the records based on

section 16-616(i). Id. at 80, 721 A.2d 196. In Kirwan, the Court commenced its analysis by stating flatly that “[personnel records are exempt from disclosure under § 10-616 of the ... [Act].” Id. at 82, 721 A.2d 196 (Citing

section 10-616(

a) and (i)). Judge Eldridge, speaking for the Court, then said: The term “personnel record” is not expressly defined in the statute. Nonetheless, the language of subsection (

i) discloses what type of documents the Legislature considered to be personnel records. The statute lists three categories of documents which are: (1) an application for employment; (2) performance rating; and (3) scholastic achievement. Although this list was probably not intended to be exhaustive, it does reflect a legislative intent that “personnel records” mean those documents that directly pertain to employment and an employee’s ability to perform a job. Whether Coach Williams received parking tickets has little or nothing to do with his employment, his status as an employee, or his ability as a coach.

It means only that he was alleged to have parked illegally. Id. at 82-83, 721 A.2d 196 (emphasis added). Later in Kirwan, the Court said: As previously discussed, the policy of the Public Information Act is to allow access to public records. Generally, the statute should be interpreted to favor disclosure. In light of this policy, we do not believe that the General Assembly intended that any record identifying an employee would be exempt from disclosure as a personnel record. Instead, the General Assembly likely intended that the term “personnel records” retain its common sense meaning.

This is indicated by the list following the prohibition on the release of the personnel records. The release of information regarding parking tickets accumulated by Coach Williams is not within the personnel records exemption contained in the statute. Id. at 84, 721 A.2d 196 (emphasis added). The common sense meaning of the term “personnel record^] of an individual” would not include investigative files of a police department concerning racial profiling, especially in light of the fact that such files are covered by another

section of the Act. Instead, the term should be given a more narrow scope. See Providence Journal Co. v. Kane, 577 A.2d 661, 663 (R.I.1990) (personnel records include “employment history, qualifications, job classifications, status within the civil service system ... work

schedule ... and overtime history”). The definition quoted from Providence Journal, supra, was cited with approval in Kirwan, 352 Md. at 84 n. 2, 721 A.2d 196. It should be emphasized that Kirwan includes in its definition of “personnel records” documents that “directly pertain to employment and an employee’s ability to perform a job.” Id. at 83, 721 A.2d 196 (emphasis added).

In a very broad sense, everything an employee does while on duty might be said to “pertain to employment.” But, to be encompassed within the Kirwan definition, the records must directly pertain to employment and the “ability [of an employee] to perform a job.” The records at issue here did not seek to uncover anything about any employee’s job abilities. In Governor v.

Washington Post Co., 360 Md. 520, 759 A.2d 249 (2000), which was decided about two years after the Kirwan case, the Court of Appeals, for the first time, included the word “discipline” in its judicially crafted definition of “personnel records.” The case arose when two Washington Post reporters made separate requests for information pursuant to the Act. Id. at 526, 759 A.2d 249.

One reporter requested telephone records of “all phones in the Governor’s Mansion; his State House Offices; all phones in Shaw House (an annexed office in Annapolis); all phones in the Washington and Baltimore offices; all car phones and cellular phones used by the [G]overnor and anyone on his staff.” Id. A second reporter requested appointment or scheduling records of the Governor spanning a two-year period. Id. In the course of deciding a series of complex issues raised in that case, the Court of Appeals, at one point, focused on the personnel records exception set forth in

section 10—616(1) of the Act. Judge Eldridge, once again speaking for the Court of Appeals, said: The identification of the telephone number which the Governor or a member of his staff called, or the identification of someone with whom the Governor met, concerning a possible future appointment to a judgeship or position in the executive branch of state government, would not amount to a “personnel record” as defined in Kirwan.

The simple record of what number was called, or with whom the Governor met, about possible future employment would not relate to the discipline, promotion, dismissal, status, job perfoi"mance or achievement of an existing or former employee. Again, while the substance of the conversations might in some cases fall in the category of “application for employment” or relate to “hiring,” the fact that the Governor or a staff member telephoned or met with an identified individual would not be a “personnel record” under any “commonly understood meaning of the term,” Kirwan, 352 Md. at 83, 721 A.2d at 200.

Id. at 548, 759 A.2d 249 (emphasis added).

It should be noted, parenthetically, that the records requested by the Washington Post reporters, in a general sense, dealt with “an employee’s” (i.e., the Governor or a member of his staff) employment, but the records like the ones here at issue did not deal directly with an employee’s employment or his/her “ability to perform a job.” The MSP maintains that the internal affairs investigation records at issue are exempt from the Act because those records “unquestionably” concern whether “an employee should be disciplined for misconduct.” The NAACP replies, accurately, that: 1) when the MSP’s representative was deposed in this case, he admitted that unlike disciplinary records, the racial profiling complaint records are not stored in the trooper’s personnel file and 2) no racial profiling complaint has ever resulted in disciplinary actions because no complaint thus far has been sustained.

The records at issue clearly do not' directly pertain to discipline “of an existing or former employee” but even if they did, to be exempt, the MSP would have to show that the investigative records exception was inapplicable. See

section 10-618(

a) and (f). We therefore conclude that investigations into the question of whether various State Troopers have engaged in racial profiling, do not constitute “personnel récordes] of an individual” under any “commonly understood meaning of the term.” Kirwan, 352 Md. at 83, 721 A.2d 196, see Washington Post, 360 Md. at 548, 759 A.2d 249. In support of its position that

section 10—616(

i) of the Act justified withholding the investigatory files of the internal affairs division, the MSP places great reliance on Balt. City Police Dep’t. v. State, 158 Md.App. 274, 857 A.2d 148 (2004). That case originated when two defendants, Clark and Smith, were arrested by Detective Michael Dressel, a member of the Baltimore City Police Department. Id. at 278, 857 A.2d 148. Clark, who was arrested on drug charges, apparently had reason to believe that Detective Dressel had been accused (in a separate case), of dishonest acts by one or more fellow officers. Id.

Accordingly, in his criminal case, Clark filed a subpoena directing the Baltimore City Internal Affairs Division of the police department to produce all records concerning accusations by fellow police officers about Dressel’s honesty. Id. The Baltimore City Police Department filed a motion to quash the subpoena on two grounds: 1) that the records requested were protected from disclosure by the “personnel records” exception set forth in

section 10—616(

i) of the Act and 2) that provisions of the Law Enforcement Officer’s Bill of Rights (LEOBR), as set forth in Md.Code (2003), § 3-104(n), (

o) of the Public Safety Article, afforded Detective Dressel protection from the disclosure requested. Id. at 282-83, 857 A.2d 148. Without conducting an in camera review of the records, the circuit court ordered the Police Department to disclose to Clark “the portions of the IAD [Internal Affairs Division] file that contained ‘any statement made by a named police witness that [Officer Dressel] engaged [in dishonesty] in the past.’ ” Id. at 278, 857 A.2d 148. The Police Department appealed that order to this Court. On appeal, the appellee (Clark) did not dispute the Police Department’s contention that the requested documents were exempt from disclosure under

section 10-616(

i) of the Act. Id. at 282-83, 857 A.2d 148. Clark could afford to make that concession because the law was well established that even if the records were confidential under the LEOBR and/or under the Act, the confidential nature of the records did not guarantee insulation of the confidential matter from disclosure. Instead, the law required that Dressel’s interest in confidentiality be balanced, in this context, against the confrontation and due process rights of the defendant under the Sixth and Fourteenth Amendments. Id. at 286, 857 A.2d 148 (citing Robinson v. State, 354 Md. 287, 308, 730 A.2d 181 (1999)).

In the Baltimore City Police Department case, we said, at the outset: [T]he Department asserts that IAD’s file concerning its investigation into allegations of dishonesty on the part of Detective Dressel qualifies as a personnel record, and appellee does not contend otherwise. Guided by Kirwan, we see no reason to disagree with the Department’s position on this point. 158 Md.App. at 283, 857 A.2d 148 (emphasis added). We went on to agree with Clark that although the records were confidential, they were nevertheless not privileged. Id. at 287 n. 7, 857 A.2d 148.

Also, we said that, on the record presented, we could not decide whether Clark’s right to a fair trial and to confront witnesses outweighed Detective Dressel’s privacy interest. Id. at 286-87, 857 A.2d 148. Relying on Reynolds v. State, 98 Md.App. 348, 633 A.2d 455 (1993) and Blades v. Woods, 107 Md.App. 178, 667 A.2d 917 (1995), we also said: Reynolds, of course, dealt with the discoverability of information that is made privileged by statute, not, as here, made confidential by statute....

Two years later, however, we called for the same procedure to be conducted when the matter sought to be discovered was contained, as here, in the internal investigatory files of a police officer. Blades v. Woods, 107 Md.App. 178, 186, 667 A.2d 917 (1995). Recognizing that IAD files are confidential, we determined it necessary to remand the case “for proceedings that will balance [Blades’s] legitimate need for relevant information in the records against (1) the privacy rights of other persons and (2) the custodian’s duty to maintain confidentiality.” Id. at 185, 667 A.2d 917 (footnote omitted).

As we did in Reynolds, we stated that, on remand, Blades first would have to proffer his need for disclosure and persuade the court that there is a reasonable possibility that the information in the records will assist his case. Id. at 186, 667 A.2d 917. “In reviewing this proffer, the court should consider the relationship between the information sought and the nature of the case, as well as the precise issue that the information is expected to address.” Id.

We went on to say, in Blades: Once the [individual] has demonstrated such need, the trial judge must determine what police department records exist and which of those records are confidential. This determination should be made in camera. Any reviewed records that are deemed not relevant or usable should be sealed and filed separately. Any records that appear to be discoverable shall then be reviewed at an expanded in camera hearing, with counsel of record present as officers of the court. Id. 158 Md.App. at 290-92, 857 A.2d 148.

Because the procedures set forth in Reynolds and Blades were not followed, we remanded the case to the circuit court for further proceedings consistent with the opinion. Id. at 291-93, 857 A.2d 148. The Baltimore City Police Department case, contrary to MSP’s argument, is not here dispositive. No request was made by Clark, pursuant to the Public Information Act, and the custodian’s claim that the documents were privileged under the Act went unchallenged.

Moreover, the dispositive question, as we stressed, was not whether the material was protected from disclosure under the Act or under the LEOBR, but whether the documents were discoverable in a criminal case. Id. at 287, 857 A.2d 148.

Lastly, the documents the trial court ordered produced in the Baltimore City Police Department case (records as to one officer regarding one particular character trait of that officer) comes far closer to meeting the common sense meaning of the phrase “personnel record[s] of an individual” than the records here at issue where the NAACP does not seek to impeach any officer and is not even interested in obtaining the names of any State Trooper. Instead, in this case, the appellee-cross-appellant simply wants to find out if a state agency is properly overseeing its officers.

The difference in what is sought is of great importance because in “every instance” the Act is to be construed so that citizens are “accorded wide-ranging access to public information concerning the operation of their government.” A.S. Abell, 297 Md. at 32, 464 A.2d 1068. ■ For all the above reasons, we hold that the investigatory files at issue do not constitute “personnel record[s] of an individual” as that phrase is used in

section 10—616(i). III. As an alternative argument, the MSP contends that the records at issue “are protected by the Law Enforcement Officer’s Bill of Rights as set forth in sections 3-104(

n) and (

o) of the Public Safety Article.” This issue was neither raised nor decided below and therefore will not be considered in this appeal. See Md. Rule 8-131 (a) (except for jurisdictional issues, an appellate court will not ordinarily consider any issue neither raised or decided in the trial court). See also City of Frederick v. Randall Family, LLC, 154 Md.App. 543, 575, 841 A.2d 10 (2004). IV. In its cross-appeal, although the NAACP argues that the records at issue were not “personnel record[s] of an individual” as that phrase is used in

section 10—616(i), it also argues, in the alternative, that the trial court should not have addressed that issue because: l)it was willing to have the records redacted to conceal the names of the State Troopers against whom the complaints were made, and 2) if those redactions were made, the records, even if they came within the ambit of

section 10-616(i), must nevertheless be produced pursuant to

section 10—614(b)(3)(iii) of the Act, which provides that a custodian of records who denies an application shall “permit inspection of any part of the record that is subject to inspection and is reasonably severable.” We reject this alternative argument. First, the MSP did not accept the NAACP’s suggestion that the records be redacted, which meant that the issue the trial judge first resolved was squarely presented to him. Second,

section 10-614(b)(3)(iii) did not allow the court to dodge the issue because, if the records were in fact “personnel record[s] of an individual,” they would not be transformed into another category of records by simply redacting names from them. In

summary, the trial court did not err in addressing head on, the question of whether the exemption from disclosure set forth in 10-616(

i) was applicable. y. The MSP argues: In this case, the [Act] does not authorize an expanded in camera review, as was ordered by the circuit court, which would allow inspection of unredacted personnel records by the requesting party’s counsel. Instead, the only form of in camera review authorized by the MPIA is prescribed in § 10-623, “Judicial review.” Subsection (

c) of this statute, entitled “Court” authorizes only “[t]he court”—and no one else—to “examine the public records in camera....” As defined by the Court of Appeals, review or inspection “in camera” means [a] trial judge’s private consideration of evidence. Ehrlich v. Grove, 396 Md. 550, 553 n. 3, 914 A.2d 783 (2007) (citing Black’s Law Dictionary 775 (8th ed. 2004)). The above argument may very well have had merit if one or more of the exemptions set forth in the Act was applicable. But, as explained above, the NAACP was entitled to the records in unredacted form inasmuch as the only exemption the MSP relied on for its denial (§ 10-616(

i) of the Act) did not apply. The procedure that the court permitted and which the NAACP still is "willing to accept, gave the MSP more than it was entitled to under the Act. Put another way, the court could have simply required the MSP to copy all the records mentioned in request No. 6. Thus, the trial judge did not commit prejudicial error when it ordered expanded in camera review in an effort to reduce the number of records that are to be produced and redacted. See Flores v. Bell, 398 Md. 27, 33, 919 A.2d 716 (2007) (to prevail in an appeal, an appellant must prove prejudice as well as error).

PORTION OP ORDER PROVIDING THAT RECORDS SOUGHT BY APPELLEE-CROSS APPELLANT WERE “PERSONNEL RECORDS” WITHIN THE MEANING OF THE MARYLAND PUBLIC INFORMATION ACT VACATED; REMAINDER OF ORDER DATED AUGUST 11, 2008, AFFIRMED; COSTS TO BE PAID BY APPELLANT-CROSS APPELLEE. . As defined in

section 10-611(

e) of the Act, a "person in interest" is (

e) Persons in interest.—"Person in interest” means: (1) a person or governmental unit that is the subject of a public record or a designee of the person or governmental unit; (2) if the person has a legal disability, the parent or legal representative of the person; or (3) as to requests for correction of certificates of death under § 5-310(d)(2) of the Health—General Article, the spouse, adult child, parent, adult sibling, grandparent, or guardian of the person of the deceased at the time of the deceased’s death. .

The trial judge reserved ruling regarding the NAACP’s complaint that the MSP's inspection and copying fees were excessive. Nevertheless, the court's order was immediately appealable because it was in the nature of an injunction. See Office of the State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 127-28, 737 A.2d 592 (1999). . In May, 1998, wlial was once codified as COMAR 06.01.04 was recodified as COMAR 17.04.14 . The decision not to rely on

section 10-6180) of the Act may have been influenced by our decision in Prince George's County v. The Washington Post Co., 149 Md.App. 289, 815 A.2d 859 (2003). In that case, the Washington Post made a Public Information Act request for, inter alia, investigative reports of the Prince George’s County Police Department, Criminal Investigation Division regarding police-involved shootings and in-custody deaths. Id. at 300, 815 A.2d 859. The County claimed that these files were exempt from disclosure under the investigative records exception set forth in

section 10-6180) of the Act. Id. at 332, 815 A.2d 859. More specifically, the County contended that release of the reports "would be contrary to the public interest.” Id. We held that the County had failed to demonstrate that disclosure of the closed investigatory files would be contrary to the public interest, and therefore held that the Circuit Court for Prince George’s County did not err in releasing those files. Id. at 333, 815 A.2d 859. .

It should be noted that in contrast to the Baltimore City Police Department case, here competing constructions of the phrase "personnel record|sJ of an individual” had the benefit of adversary testing. Also, the factual record was here developed fully and the matter was extensively briefed by both sides. . The LEOBR provisions to which the Department refers are found in Maryland Code (2003), § 3-104(n), (

o) of the Public Safety Article. Subsection (

n) provides: Information provided on completion of investigation.—

(1) On completion of an investigation and at least 10 days before a hearing, the law enforcement officer under investigation shall be: (

i) notified of the name of each witness and of each charge and specification against the law enforcement officer; and (ii) provided with a copy of the investigatory file and any exculpatory information, if the law enforcement officer and the law enforcement officer's representative agree to: 1. execute a confidentiality agreement with the law enforcement agency not to disclose any material contained in the investigatory file and exculpatory information for any purpose other than to defend the law enforcement officer; and 2. Pay a reasonable charge for the cost of reproducing the material.

(2) The law enforcement agency may exclude from the exculpatory information provided to a law enforcement officer under this subsection: (

i) the identity of confidential sources; (ii) nonexculpatory information; and (iii) recommendations as to charges, disposition, or punishment. Subsection (

o) reads: Adverse material.—

(1) The law enforcement agency may not insert adverse material into a file of the law enforcement officer, except the file of the internal investigation or the intelligence division, unless the law enforcement officer has an opportunity to review, sign, receive a copy of, and comment in writing on the adverse material.

(2) The law enforcement officer may waive the right described in paragraph (1) of this subsection. . We also note that even if it could be said that redacting names from documents made them "part of the record that is subject to inspection” it is far from clear that the act of redaction made the records "reasonably severable.” After all, the trial judge found that the redaction of names from thousands of documents was going to be difficult. It may have been for this reason that the trial judge never indicated that he thought that

section 10—614(b)(3)(iii) had any relevance.