154 [81 Op. Att’y

PUBLIC INFORMATION ACT

STATE’S ATTORNEYS ) DISCLOSURE OF PROSECUTORIAL FILES )

GROUNDS FOR WAIVER OF FEES

January 31, 1996

The Honorable Marna McLendon

State’s Attorney for Howard County

You have requested our opinion on the processing of certain

requests made to your office under the Maryland Public Information

Act (“PIA”). You have explained that your office receives

numerous PIA requests each year, mostly from convicted defendants

seeking disclosure of the prosecutorial files maintained in their

cases. Because the requester generally presents an all-encompassing

request and the prosecutorial files can be voluminous, the processing

of these requests often entails a significant amount of staff time and

copying costs. Generally the requester, as an incarcerated

individual, also seeks a waiver of fees for the search and copying.

You have asked whether you must (i) grant these requests and allow

disclosure and (ii) waive the fees merely because the requester

adequately demonstrates pauper status.

Our opinion is as follows: 

1. The PIA would require you to grant these requests unless

you identify a basis in the law that authorizes you not to do so ) for

example, that disclosure would interfere with a law enforcement

proceeding. 

2. You need not waive fees solely because the requester

lacks money to pay the fees. Each request for a fee waiver should

be considered in light of the waiver standards in the PIA. 

I

Right of Access

The PIA was enacted to provide the public a broad right of

access to records maintained by State and local governments. Faulk
Gen. 154] 155

1

 The key terms “custodian” and “public record” are defined in SG

§10-611(c) and (f), respectively. The records in question here are “public

records,” and you and your staff are “custodians” of the records. You are

also the “official custodian” of all records in your office. See SG §10-

611(d).

2

 This exemption also covers any “investigatory file compiled for

any other law enforcement, judicial, correctional, or prosecution purpose”

and certain “records that contain intelligence information or security

procedures ....” SG §10-618(f)(1)(ii) and (iii).

3

 The term “person in interest” is defined in SG §10-611(e).

 v. State’s Attorney for Harford County, 299 Md. 493, 506, 474 A.2d

880 (1984); A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 32,

464 A.2d 1068 (1983). In furtherance of this purpose, the PIA’s rule

of construction is “in favor of permitting inspection of a public

record, with the least cost and least delay to the person ... [who]

requests the inspection.” §10-612(b) of the State Government (“SG”)

Article, Maryland Code. Thus, “[e]xcept as otherwise permitted by

law, a custodian shall permit a person or governmental unit to

inspect any public record at any reasonable time.” SG §10-613(a).1

Consistent with the broad right of access granted by the PIA, a

requester has a right to judicial review of a custodian’s denial of a

request to inspect public records. SG §10-623. In a judicial

proceeding arising out of such a denial, the custodian bears the

burden of establishing a valid basis for the denial. Id. See also

Faulk, 299 Md. at 507.

There are, of course, limits on the right of access granted by

the PIA. One potential basis for denying inspection of case files in

a State’s Attorney’s Office is SG §10-618(f)(1)(i), which generally

authorizes a custodian who “believes that inspection ... would be

contrary to the public interest ... [to] deny inspection of ... records of

investigations conducted by the Attorney General, a State’s

Attorney, a city or county attorney, a police department, or a

sheriff.”2 

However, the PIA effectively grants a special right of access

to a “person in interest” ) that is, the subject of an investigatory file.3

A person in interest may be denied the right to inspect pertinent

investigatory and prosecutorial files of a State’s Attorney only to the

extent that inspection would:
156 [81 Op. Att’y

4

 If some other PIA exemption applied to a record in the file – for

example, the attorney work-product privilege embodied in SG §10-618(b)

– access could be denied on that basis.

 (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.

SG §10-618(f)(2). Absent one of these enumerated reasons or

another PIA exemption, the custodian must permit inspection of the

investigatory or prosecutorial file. See Mayor and City Council v.

Maryland Committee Against the Gun Ban, 329 Md. 78, 81-82, 617

A.2d 1040 (1993). Yet, as this office has observed, “[t]he number

and wide scope of these factors will often lead to a denial of

disclosure by the law enforcement agency, especially where records

have been recently obtained and are in active use in investigations.”

Office of the Attorney General, Public Information Act Manual 20

(6th ed. 1993).4

Therefore, a State’s Attorney may not have a blanket rule of

denying PIA requests from inmates seeking documents in

prosecutorial files, nor may a State’s Attorney deny inspection

merely because to do so would require search time and copying

expense. Mayor and City Council of Baltimore v. Burke, 67 Md.

App. 147, 157, 506 A.2d 683 (1986). However, to the extent that a

document, or portion of a document, raises one of the concerns in

SG §10-618(f)(2) or is otherwise within a PIA exemption, you may
Gen. 154] 157

5

 An official custodian’s decision with respect to the denial of a fee

waiver will only be reversed or modified by a court if the decision was

arbitrary or capricious. Burke, 67 Md. App. at 156-57.

deny inspection of the document or redact the sensitive portion of

the document.

II

Fee Waivers

Pursuant to SG §10-621(a), the official custodian of public

records “may charge an applicant a reasonable fee for the search for,

preparation of, and reproduction of a public records.” This provision

reflects a legislative judgment that the taxpayers need not subsidize

PIA requesters (except for the first two hours of search and

preparation time, which are free to the requester under SG §10-

621(b)).

When an applicant asks for a waiver, the official custodian may

waive the fee if, “after consideration of the ability of the applicant

to pay the fee and other relevant factors, the official custodian

determines that the waiver would be in the public interest.” SG §10-

621(d). This wording negates any argument that poverty alone

entitles a requester to a fee waiver; poverty is but one of the

“relevant factors” that ultimately lead to a discretionary judgment

about the public interest. 

 Conversely, a decision on a fee waiver request may not be

based solely on the expense that would be incurred if the waiver

were granted; a fee waiver request must be considered in light of the

ability of the requester to pay the fee and “other relevant factors.”

See Burke, 67 Md. App. at 157 (finding Baltimore City’s denial of

fee waiver request arbitrary and capricious because the City only

considered the expense it would incur and did not consider the

public interest).5 Burden on the office is surely not irrelevant, and

might tip the public interest assessment, but it cannot be the only

consideration. 

The broad term “public interest” does not permit a precise

listing of relevant factors. Cases have identified a “public interest”

in the disclosure of records shedding light on a public controversy

about official actions, Harris Enterprises, Inc. v. Moore, 734 P.2d
158 [81 Op. Att’y

1083, 1089 (Kan. 1987), and on an agency’s performance of its

public duties, Massey v. FBI, 3 F.3d 620, 625 (2d Cir. 1993).

“However, the mere possibility that information may aid an

individual in the pursuit of litigation does not give rise to a public

interest.” Id.

III

Conclusion

In summary, it is our opinion that a convicted defendant may

obtain access to the prosecutorial file concerning the defendant

unless one or more of the factors specified in SG §10-618(f)(2)

exists or some other PIA exemption applies. A defendant is not

generally entitled to obtain access unless the defendant pays any

applicable fees or you grant a fee waiver in a particular case. 

J. Joseph Curran, Jr.

Attorney General

Kathleen S. Hoke

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice

Editor’s Note:

In Chapter 403 of the Laws of Maryland 2002, the General

Assembly added a definition of “reasonable fee” to the Public

Information Act. See SG §10-621(a). The subsections discussed in

Part II above were redesignated as §10-621(b), (c), and (e),

respectively.