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When commercial information is public information

gavel2 1 Maryland has a Public Information Act which allows for the release of government documents upon request, similar to the federal Freedom of Information Act. Courts are often called upon to decide whether a citizen is entitled to obtain documents in the government’s possession. Maryland’s highest court last week addressed efforts to obtain commercial information through a MPIA request in a case called Jayson Amster v. Rushern Baker, County Executive for Prince George’s County.

This case involved an effort by a private individual to obtain a copy of a lease for a proposed Whole Foods Store which had been entered into with a property owner. The owner had applied to have property re-zoned so that the store could be built. While the new zoning request was pending, the County declined the MPIA request, asserting that the lease contained private commercial information that was exempt from required disclosure under the Act. Amster filed suit to get the documents, and the trial Court upheld the County’s decision, with the case making its way to the Court of Appeals.
The Court of Appeals’ opinion begins by saying “statutory access to commercial information contained in public records requires courts to strike a balance between government transparency and the protection of private commercial interests.” It noted that under the MPIA, persons are generally entitled to have access to information the affairs of government and public officials or employees. Thus persons are allowed access to public records, subject to certain exemptions from disclosure, some of which are mandatory and some discretionary where the agency must decide if it is contrary to the public interest to disclose the information.
One such exemption involves commercial information, with the test for such information that was voluntarily given to the government being that it is confidential if it would “customarily not be released to the public by the person from whom it was obtained.”
The Court of Appeals agreed that it had not been shown that the entire lease was subject to the commercial information exemption, and the case was sent back to the trial court to review it privately and decide what portions of the lease should be deemed confidential and which may be subject to public release

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

Last modified onTuesday, 27 June 2017 16:34
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