UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2427

September Term, 2007

PRINCE GEORGE'S COUNTY

v.

APARTMENT AND OFFICE BUILDING

ASSOCIATION OF METROPOLITAN
WASHINGTON

Davis,
Matricciani,
Rodowsky, Lawrence F.
(Retired, specially assigned),

n.

Opinion by Matricciani, J.

Filed: December 23, 2008

CAL0617355
 This case arises out of appellee's, Apartment and Office Building Association of

Metropolitan Washington (AOBA) , request for'informa.-tion under the Maryland Public

Information Act (MPIA) from appellants, Prince George's County (County). AOBA made

its request on July 13, 2005. AOBA and the County had several communications concerning

the MPIA request. Unsatisfied with the County's response, AOBA filed a complaint in the

Circuit Court for Prince George's County on August 23,2006. A bench trial was held on

December 13 and 14, 2007. The court found in favor of AOBA and this timely appeal

followed.

QUESTIONS PRESENTED

The appellant presents four questions for our review which we have slightly reworded:

1. Did the trial court err as a matter of law in instituting a fine of $5,000 per
day, payable to Appellee, for noncompliance with its injunctive order?

II. Did the trial court err in finding that documents responsive to Appellee's
MPIA Requests Six and Seven existed when the Appellant had contended they
did not exist after a diligent search?

III. Did the trial court abuse its discretion in awarding attorney's fees and costs
to Appellee under the factors to be weighed for entitlement to attorney's fees
and costs under the MPIA pursuant to Kline·v. Fuller, 64 Md. App. 375
(1985)?

IV. Did the trial court err in granting damages to Appellee that ,were actually
costs incurred by Appellee for documents it actually received?

For the following reasons, we will affirm in part and reverse and remand in part.

FACTS AND PROCEEDINGS

In his January mid-term address, County Executive Jack Johnson warned

apartment managers and owners in the County that they needed to make improvements.

He threatened that if they did not, they would be held accountable. On March 14,2005,

the County followed up on his mid-term address when it issued a press release entitled,

"County Executive Lays Out Strategic Plan to Deal with Crime, Gets Tough on

Apartment Complexes." The press release stated that, based on 2004 crime statistics,

officials had compiled a list of the most crime-ridden apartment complexes in the County.

Twenty-two apartment complexes were identified as being responsible for 19,000 calls

for police service. The press release included a statement by the County Executive, who

said, "our demands are non-negotiable and if they are not met, we will close you down."

On July 13, 2005, AOBA sent a letter addressed to James Keary, Director of

Communication of the Office of the County Executive in Prince George's County. The

letter was a request under the MPIA. AOBA asked to inspect all records and documents,

including email communications, in the custody or control of the Prince George's County

Government Executive and all Executive Branch departments, agencies, offices and

instrumentalities pertaining to the following: " I

1. The properties named on the "Apartment Action List" (hereafter: "Action

List") released March 14, 2005;

2. Other properties considered, but not included in, this Action List,

3. All properties under consideration for any future "Action Lists";

4. The criteria used to determine which properties to place on the Action

List;

2
5. Inspections, code enforcement, and license approvals/renewals for
properties on the Action List since January 1, 2003;

6. Meetings, including agenda and attendees, concerning the Action List;

7. Agreements reached between the county government and Action List

properties since March 14,2005;

8. Economic development proposals for the municipalities and

neighborhoods of Langley Park, Forestville, Forest Heights, Oxon Hill,
Hillcrest Heights, Bladensburg, Suitland, and Seat Pleasant;

9. The Apartment and Office Building Association (AOBA) and AOBA

staffperson Lesa Hoover;

10. Use of Homeland Security monies, including use of personnel, for

investigations, code enforcement, and other actions concerning apartment
communities on Action List;

11. D se of Homeland Security monies, including personnel and use of

recording equipment, concerning public gatherings in Prince George's
County since March 14,2005;

12. Calls for service to apartment communities on Action List, including

dates, subject, and address for the year 2004;

13. Calls for service originating from apartment communities on Action

List, including dates, subject, and address for the year 2004;
r.

14. Outcome of calls for service from or to apartment communities on

Action List;

15. Average police response time for police calls to apartment communities
for the year 2004;

16. Average police response time for police calls countywide for the year
2004;

17. The daily report titled "Morning Briefing Report" issued by Prince
George's County Police Department, Statistics Section, for each day from

-3-
 January 1, 2004 through July 1, 2005;

18. Number of sworn officers assigned to personal security details of county

officials.

The County received the letter on July 15, 2005. On October 25,2005, the County

had not responded and AOBA submitted a follow-up to its request. On November 8,

2005, a County employee and a representative of AOBA discussed the matter over the

telephone. The County followed-up this conversation with an email on November 29,

2005. In the email the County stated that it had requested. and received an estimate of

costs associated with fulfilling AOBA's request. The County also stated that it had some

of the documents in hand as a result of the search, but AOBA would have to submit

payments before the County released the documents.

On February 13, 2006, AOBA sent a letter to the County stating that it had a right

to inspect the requested records before paying the County to duplicate the records.

AOBA requested that the County contact them as soon as possible to arrange a time to

inspect the records. AOBA also requested an explanation of the allegedly high cost of
,.
retrieving email communications. On March 28 and April 27, 2006, AOBA emailed

follow-up inquiries concerning its February letter. On May 3, 2006, the County

responded by stating that it was working on the request, but because of the volume of the

request, it was taking a long time to coordinate the responses.

On June 12,2006, the County and AOBA discussed the pending MPIA request on

the telephone and AOBA followed-up with a letter. In the letter, AOBA expressed its

-4-
 interest in obtaining the documents the County had aJready gathered rather than waiting

for the collection of all of the documents. One month later on July 11, 2006, the County

communicated to AOBA that the matter was being reviewed by the Office of Law and the

. County anticipated that the information would be in the mail no later than July 13, 2006.

On August 23,2006, AOBA filed a complaint against the Countyl alleging a

violation of the MPIA. The County filed an answer on September 29, 2006.

In a letter dated September 28, 2006, the County answered AOBA' s initial request.

The County stated that records responsive to request I were available for inspection and

that the County was not in possession of items in response to requests 2, 3,4,6, 7, 9,10,

and 11. The county denied request 18. The County stated that AOBA owed the County

$1,220 for the acquisition and reproduction of documents in response to request 5. The

County stated that because of the nature of request 8, it estimated a cost of $5,000 to

retrieve the information. The County estimated the costs of gathering the information for

requests 12, 13, 14, 15,16, and 17 at $3,521. The County also estimated that retrieval of

all emails associated with AOBA's requests w,ould

, cost about $9,000. The County

concluded by stating that all costs must be paid in advance and that any portion not used

toward gathering the information would be refunded. AOBA responded on January 17,

2007. AOBA mailed payment for materials gathered in response to request 5 and

iAOBA also filed a complaint against County Executive, Jack Johnson. Johnson
was dismissed from the action before it went to trial.

-5-
anticipated costs for acquiring materials in response to requests 12 through 17.

On March 20, 2007, the County responded with the information in response to

requests 1 and 16. The County also indicated that it would not be able to retrieve

information for request 17 and stated that AOBA would receive a refund in the amount of

$1,546.00. The County asked AOBA to communicate whether it wanted the refund

immediately or after all the requests had been answered. The County further stated that it

could not fulfill requests 12, 13, 14, and 15 because it did not have the street addresses for

the individual apartment buildings. The County asked AOBA to provide the addresses.

On May 15, 2007, AOBA sent a letter and attachment to follow-up on a phone

conversation between the County and AOBA. The letter reiterated AOBA's ilicredulity

with the County's assertion that it did not have the street addresses for the apartments.

The attachment was a document released by the County Executive in 2005 that included

the total number of calls for service made from each of the apartment complexes in 2004.

AOBA alleged that if the County could produce this type of document, it should be able

to answer AOBA's requests 12 through 15. O~ July 3,2007, AOBA followed-up on its'

May letter requesting a response from the County. On July 10,2007, the County left a

message with AOBA that it had the street addresses and the requested information. The

County indicated that it would forward the information to AOBA.

In a letter dated August 29,2007, AOBA contacted the County to follow up on the

message because the County had not transmitted the information. The letter also stated

-6-
that the County has processed the $4,741 check AOBA had submitted on January 17,

2007. In a letter dated September 5, 2007, the County sent AOBA information

responding to requests 12, 13, and 14 and informed it that it would be unable to fulfill

request 15. The County explained that the process did not cost as much as the estimate

and that AOBA would receive a refund once the final calculations were completed. In a

letter dated November 29,2007, AOBA expressed its frustration with the County and the

still pending MPIA request. AOBA had discovered documents relevant to its requests

that the County had said it was unable to find. In the letter AOBA suggested that the

discovery of the documents illuminated the County's lack of candor.

A bench trial was conducted on December 13 and 14,2007. The court entered

judgment on behalf of AOBA and ordered that:

1. Defendant shall produce all records and documents in its possession,

custody or control responsive to document requests Nos. 6 and 7 stated in
Plaintiff's letter dated July 13,2005, addressed to James Keary, which was
submitted by Plaintiff to Defendant under the Maryland Public Information
Act ("MPIA") ... .In the event Defendant fails to produce all records and
documents on or before January 4, 2008, the Court imposes a monetary
sanction on Defendant for Five Thous~4 Dollars ($5,000.00) per calendar
day to be paid by Defendant to Plaintiff each day until the documents are
produced.

2. Judgment is entered on Plaintiff's behalf, and against Defendant, for

Plaintiff's attorney's fees in the amount of $30,654.87, plus court costs. For
. the reasons stated in open court on December 14, 2007, the collii finds that
defendant has acted in bad faith with respect to Plaintiff's request for
information submitted under the MPIA and, after considering the factors
pertinent to the award of attorney's fees under the statute, the Court finds
that Plaintiff is entitled to its attorney's fees.

-7-
 3. Judgment is entered on Plaintiff's behalf, and against Defendant, in the
amount of $3,521.00, representing a refund to Plaintiff of the money paid to
Defendant (Le., $4,741.00) for fees associated with Plaintiff's request under
the MPIA, minus $1,220.00 as total costs incurred by Defendant in
connection with Plaintiff's request.

The County noted this timely appeal on January 4, 2008.

DISCUSSION

I.

The County contends that the trial court erred as a matter of law in instituting a $5,000

per day fine for noncompliance with the injunctive order because, under the MPIA statute,

the court was not permitted to authorize such relief. AOBA contends that the court did not

abuse its discretion in awarding the per day fme.

- We review the interpretation and application of Maryland statutory law de novo.

Bittinger v. CSX Transp. Inc., 176 Md. App. 262, 273 (2007). Md. Code Ann., (1984, Repl.

Vol. 2004), § 10-623 (c)(3) of the State Government Article ("S.G.") clearly lays out the

remedies available to the court in an MPIA case. The statute states:

The court may:

(i) enjoin the State, a political subdivision, or a unit, official, or
employee of the State or of a political subdivision from withholding the
public record;
em. pass ap. o~c!~r for fue production of the pu~lic record that was
withheld from the complainant; and .
(iii) for noncompliance with the order, punish the responsible employee
for contempt.

S.o. § 10-623 (c)(3). The Court of Appeals has stated that "[s]tatutory analysis begins with

-8-
the plain meaning of the words of the statute. When those words are clear and unambiguous,

and the result is not absurd, no further inquiry into legislative intent is required." Friendly

Finance Corp. v. Orbit Chrysler, 378 Md. 337,343 (2003). The statute here is unambiguous

in laying out the available remedies for violation of the MPIA.

In this case the court ordered the County to produce the documents in response to

requests 6 and 7. The court is allowed to issue this order under S.G. § 10-623 (c)(3)(ii). The

court continued, however, and instituted a per day fine for noncompliance with the order.

By including the fine, the court did not follow the steps that are outlined in the statute. The

statute does not include a provision that permits a court to levy a fine for noncompliance.

As provided for in the statute, the result of noncompliance could have been a contempt

charge against the responsible employee. S.G. § 10-623 (c)(3)(iii),z Further, a per day fine

is not conducive to resolving the dispute between the parties as it encourages the party

receiving the fine to continue to dispute the adequacy of the responses in an attempt to collect

more money. We conclude that the trial court erred when it ordered the County to pay a per

day fine for noncompliance. We remand for th,~ circuit court to consider whether contempt

charges under S. G. § 10-623 (c )(3 )(iii) are warranted under the circumstances then presented.

II.

2The per day fine instituted in this case resembles a punitive fine. The General
Assembly amended the MPIA statute in 2002 and removed the punitive damages
provision. This removal suggests that the legislature did not want government agencies
subject to punitive fines for noncompliance. 2002 Md. Rules 403.

-9-
 The County next contends that the trial court erred in fmding that documents

responsive to requests 6 and 7 existed. Under request 6 and 7 the County had asked to

inspect all records pertaining to: "(6) Meetings, including agenda and attendees, concerning

the Action List [and] (7) Agreements reached between the county government and Action

List properties since March 14,2005." The County claims to have conducted a diligent

search for the documents and ultimately was unable to fmd anything responsive. Thus, they

contend that the court was in error when it found that the documents existed. AOBA

contends that the trial court did not err in finding that the documents existed, as AOBA

presented substantial evidence to support its claim that the County possessed documents

responsive to requests 6 and 7.

Under Maryland Rule 8-131 we review actions tried without a jury on both the law

and the evidence. The appellate court, "will not set aside the judgment of the trial court on

the evidence unless clearly erroneou·s, and will give due regard to the opportunity of the trial

court to judge the credibility of the witnesses." Md. Rule 8-131. "If any competent material

evidence exists in support of the trial court's fa9tual findings, those findings cannot be held

to be clearly erroneous." Schade v. Maryland State Ed. of Elections, 401 Md. 1,33 (2007).

In this case the trial court made a factual finding that the County possessed documents

responsive to AOBA's requests 6 and 7. It made this finding based on the evidence

presented at the bench trial.

During the bench trial the judge heard testimony and reviewed evidence and

-10-
concluded that despite the County's assertion, it possessed documents responsive to requests

6 and 7. This evidence included a memorandum from the County Chief of Staff addressed

to various county employees reminding them of an upcoming meeting to discuss the

"initiatives and progress of the Apartment Task Force as it relates to the twenty-two

properties covered in the initiative." AOBA also presented a press release issued by the

County, highlighting the improvements that had been made at one apartment complex as a
. .
result of the County's progJam to improve the conditions at certain apartment compl~xes.

These documents are responsive to AOBA's requests number 6 and 7, respectively. They

suggest clearly that the County did not produce all of the documents it possessed in response

to these requests. 3 We conclude that the trial court did not err in finding that documents

existed that were responsive to AOBA's requests.

ID.

Next the County contends that the trial court abused its discretion in awarding

attorney's fees and costs to AOBA. The County alleges that the judge did not adequately

consider the factors to be weighed when deteIII)ining entitlement to attorney's fees and costs
"

under the MPIA pursuant to Kline v. Fuller, 64 Md. App. 375, 386 (1985). AOBA contends,

3The County contends that federal case law is instructive in this case because the
MPIA is modeled after the federal Freedom of Information Act (FOIA). While this court
has held that federal court's interpretation of the FOIA is instructive, it applies when
interpreting counterpart provisions of the MPIA. In this case, there is nothing in the
MPIA that outlines what standard is required for the search of responsive documents.
MacPhail v. Comptroller of Maryland, 178 Md. App. 115, 120 (2008).

-11-
and we a~ee, that the award was proper.

The decision of whether to award attorney's fees to an eligible party under the MPIA

statute is within the discretion of the trial judge. Stromberg Metal Works v. University of

Maryland, 395 Md. 120, 135 (2006). Thus, "absent a showing of abuse of that discretion or

a predicate erroneous legal conclusion, the determination to award or deny such fees

generally will not be disturbed on appeal." Stromberg Metal Works, Inc. v. University of

Maryland, 166 Md. App. 190 (2005), affd 395Md. 120 (2006).

Under the MPIA a party is eligible for attorney's fees if "the court determines that the

complainant has substantially prevailed." 8.0. § 10-623(0. Once that is established, "the

court may assess against a defendant governmental unit reasonable counsel fees and other

litigation costs that the complainant reasonably incurred." ld.

Case law has developed to guide trial courts in determining whether a party is entitled

to attorney's fees. See Stromberg, 395 Md. 120; Kline, 64 Md. App. 375. Kline states that

three factors have been identified as worthy of consideration when considering whether to

award attorney fees. These include: "(1) the lr~nefit

>
to the public, if any, derived from the

suit; (2) the nature of the complainant's interest in the released information; and (3) whether

the agency's withholding of the information had a reasonable basis in law." Kline, Md. App.

at 388. In Stromberg, the Court of Appeals went further and concluded that a trial court must

consider the three factors set forth in Kline when deciding on attorney's fees. Stromberg,

395 Md. at 128. Using the analysis in the8enateJudiciaryCommittee's Report on the FOIA,

-12-
Stromberg elaborated on the required analysis under each of the three factors.

Under the public benefit factor, the Senate Judiciary Committee noted that fees should

be awarded when a "public interest group was seeking information to further a project

benefitting the general public." Stromberg, 395 Md. at 129. Under the nature of the

complainant's interest factor the Committee noted that attorney's fees should be awarded if,

"the information sought was ... public-interest oriented." ld. And finally, the Committee

stated that attorney's fees should be awarded under the reasonableness of nondisclosure

factor when there was no "colorable basis in law [and] ... if the withholding appeared to be

merely to avoid embarrassment or to frustrate the requester." ld.

In this case the trial court addressed each of the three factors outlined in Stromberg.

In its oral opinion the court first discussed the benefit to the public derived from the suit. He

stated: "The public was potentially harmed and the public benefit was at stake . . . over

20,000 tenants potentially involved ... these tenants are going to be out on the street, and if

that's not a public benefit issue, I can't imagine what is." The judge next addressed the

nature of the complainant's interest in the info,pnation by saying, "I fmd that the nature of

the Plaintiff's interest was severely affected and clearly involved ... it's an organization that

represents these communities. They have their tenant's interest at heart ... They had a

contractual interest to their tenants." He concluded by discussing whether there was a

reasonable basis in the law for the County's withholding of information by stating, "there

was no reasonable basis for the delay. I have suggested they could have given some of this

-13-
information the day of the request, not months and months and months and months later."

This analysis is sufficient to satisfy the Stromberg requirements and we conclude that the trial

court did not abuse its discretion in awarding attorney's fees to AOBA.
,
The MPIA statute provides for the award of attorney's fees if the party substantially

prevails. In this case, appellant conceded that AOBA substantially prevailed and the circuit

court awarded attorney's fees. We now affirm the award. In its brief, AOBA requests that

we remand for a determination of the attorney's fees incurred since November 30, 2007.

This time period includes the trial on the merits and the appellate process. Accordingly, we

instruct the trial court, upon remand, to consider whether AOBA is entitled to additional

counsel fees. See Friolo v. Frankel, 403 Md. 443, 461-62 (2008).

IV.
The County lastly claims that actual damages should not have been awarded to

AOBA. Appellant acknowledges that under the MPIA statute that actual damages can be

awarded, but claims there were no uncompensated expenses in this case. AOBA c18.ims that

it never received the documents it paid for and the money it expended should be refunded.
I'
I

We note that the trial court's decision to award actual damages is a mixed question

of law and fact. Whether the County withheld documents is a question of fact and whether,

based on that finding, AOBA was entitled to actual damages under the MPIA statute is a

question of law. We extend great deference to the lower court's factual findings, but the

application of the facts to the law is reviewed de novo. Liddy v. Lamone, 398 Md. 233,247-

48 (2007). Under the MPIA § 10-623 (d)(i)

-14-
 [a] defendant governmental unit is liable to the complainant for actual
damages that the court considers appropriate if the court fmds by clear and
convincing evidence that any defendant knowingly and willfully failed to
disclose or fully to disclose a public record that the complainant was
entitled to inspect under this Part III of this subtitle.

In thisc~sethe trial court ordered "that the county refund the Plaintiff $3,521 of the

money paid." The trial court found that AOBA had paid the County $4,741 towards

fulfilling its MPlA request. The trial court further found that A OBA had not received all of

the documents it paid for and was entitled to the aforementioned refund.

The County informed AOBA on September 28, 2006, that the cost of collecting

documents responsive to requests 12, 13, 14, 15, 16, and 17 would be $3,521. AOBA paid

the County on January 17,2007. On March 20,2007, the County stated that it would be

unable to locate documents responsive to request 17 and indicated that AOBA would receive·

a refund in the amount of $1,546. In this letter the County attached a document in response

to request 16. On September 5, 2007, the County allegedly delivered documents responsive

to requests 12, 13, and 14 and communicated that they could not collect documents

responsive to request 15. The County also sta~d that the search cost less than the expected

$1,975 and AOBA would receive a refund once a final accounting had been done. There is

nothing in the record to indicate that AOBA ever received a refund from the County. At trial,

AOBA challenged the sufficiency of the documents the County delivered and claimed were

responsive to requests 12, 13, and 14. We infer from the damages actually awarded that,

after reviewing all of the evidence, the trial court determined that the County had not fulfilled

-15-
any of AOBA's requests numbered 12 through 17. This fmding is a finding of fact and,

based on the record, we conclude that the trial court 'did not clearly err. We further conclude,

that based on the undisturbed factual fmdings, the court did not err as a matter of law in

awarding the damages. AOBA paid the County for documents never produced. The trial

court's award of a refund in the amount of $3,521 is within its statutory authority. We

conclude, therefore, that AOBA is entitled to the refund.

JUDGMENT AFFIRMED IN PART

AND REVERSED IN PART.
REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT,WITH
TIDS OPINION. COSTS DIVIDED
EVENLY BETWEEN APPELLANT
AND APPELLEE.

"

-16-