Gen. 111 111

1

 The MVA has authority to suspend or revoke a driver’s license

under many other circumstances, as well. These are not pertinent to your

inquiry.

PUBLIC INFORMATION ACT

VEHICLE LAWS ) LICENSING ) DRIVER’S RIGHT TO OBTAIN

RECORDSRELATED TO CONTINUED FITNESS FOR LICENSING

March 14, 1997

The Honorable Kumar P. Barve

House of Delegates

You have requested our opinion whether the Maryland Public

Information Act (“PIA”) entitles a driver to certain information

related to the driver’s continued fitness for licensing. Specifically,

you ask whether a driver is entitled to obtain (i) records reflecting

the source of a referral to the Motor Vehicle Administration that

results in the MVA’s review of a driver’s fitness to hold a license

and (ii) a report by the MVA’s Medical Advisory Board concerning

the driver’s fitness.

Our opinion is as follows: A driver is generally entitled under

the PIA to obtain MVA records related to a review of the driver’s

fitness, including any report of the Medical Advisory Board. The

driver would not be entitled, however, to records reflecting the

identity of a referral source under circumstances in which the source

is properly deemed confidential. 

I

Background

The MVA has authority to suspend or revoke the driver’s

license of an individual who is “an unfit [or] unsafe ... driver of a

motor vehicle.” §16-206(a)(1)(ii) of the Transportation (“TR”)

Article, Maryland Code.1 For example, a physical or mental

condition that impairs an individual’s ability to drive might make the
112 [82 Op. Att’y

2

 Special provisions apply to suspensions based on the effect of an

individual’s epilepsy. TR §16-208(a)(3) through (7).

individual “unfit” for continued licensing. See Motor Vehicle

Admin. v. Mohler, 318 Md. 219, 227, 567 A.2d 929 (1990). The

MVA is prohibited from issuing a driver’s license to someone

“[w]ho is unable to exercise reasonable control over a motor vehicle

due to disease or physical disability ...” or whose driving, the MVA

has “good cause” to believe, “would be inimical to public safety or

welfare.” TR §16-103.1(5) and (6). Under TR §16-207(a)(1)(ii), the

MVA may require a driver “to submit to reexamination ... if ... the

[MVA] has good cause to believe that the licensee is unfit, unsafe,

or otherwise not qualified to be licensed.” 

Occasionally, the MVA’s “good cause to believe that [a]

licensee is unfit ...” derives from a report from someone who has

observed the individual’s driving practices. Indeed, the information

might come from a relative or someone else close to the driver. The

informant might provide information to the MVA out of a fear that

the driver’s deteriorated health could lead to a tragic accident if the

driver continued to drive. 

Under TR §16-208(a)(2), “after notice and hearing, the [MVA]

may suspend for an indefinite period the license or privilege of any

individual who cannot drive safely because of his physical or mental

condition.”2 The information from the source might cause the MVA

to review the situation and potentially begin a suspension

proceeding. Prior to making this determination, the MVA would

ordinarily refer the matter to its Medical Advisory Board for an

advisory opinion. TR §16-118(c)(1). 

The Board consists of “qualified physicians and optometrists”

who advise the MVA “regarding the physical and mental condition

of individuals who seek to drive on highways in this State.” TR §16-

118(a)(1). In carrying out its responsibilities, the Board may obtain

information from the driver’s physician and interview the driver.

See COMAR 11.17.03.03. If, based on the advice of the Board, the

MVA suspends a license indefinitely on grounds of ill health, the

driver has a right to a hearing under TR Title 12, Subtitle 2. 
Gen. 111 113

II

Status of Referral Letters

The general rule under the PIA is that a requester is entitled to

inspect “any public record” in the custody of a governmental entity.

§10-613(a) of the State Government (“SG”) Article, Maryland Code.

A letter to the MVA expressing concern about someone’s fitness to

continue driving is a “public record.” SG §10-611(f)(1)(i). 

Nevertheless, not every “public record” is available for

inspection. Some records must be withheld because a provision in

other law or the PIA mandates confidentiality; others may be

withheld because the PIA grants discretion to the custodian to

withhold a particular kind of record. 

An example of a discretionary exemption is SG §10-618(f),

which permits a custodian to deny inspection of investigatory

records. Specifically, certain identified agencies (the Attorney

General, a State’s Attorney, a city or county attorney, a police

department, or a sheriff) may withhold “records of investigations.”

Other agencies may withhold “an investigatory file compiled for any

other law enforcement, judicial, correctional, or prosecution

purpose.” SG §10-618(f)(1)(ii). When, under the authority

discussed in Part I above, the MVA compiles information as part of

a process to decide whether to suspend a driver’s license, it has

created “an investigatory file for [a] law enforcement ... purpose.”

An agency’s authority to withhold an investigatory file is

limited, however, when the requester is a “person in interest”:

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; 
114 [82 Op. Att’y

(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). A driver whose fitness for licensing is under

investigation is a “person in interest” for purposes of a request to

review the investigatory file. SG §10-611(e)(1). See generally

Mayor and City Council v. Maryland Committee Against the Gun

Ban, 329 Md. 78, 617 A.2d 1040 (1993). Therefore, the MVA may

withhold from the driver only those portions of the file that, if

disclosed, would result in any of the effects listed in SG §10-

618(f)(2).

The only likely basis under SG §10-618(f)(2) for denying the

driver access to the referral letter is when the author of the letter is

“a confidential source.” “While the government is not entitled to a

presumption of confidentiality, generic circumstances may exist

from which a court can find an implied assurance of confidentiality.

In essence, a source may be considered confidential ... if the

informant’s relation to the circumstances at issue supports an

inference of confidentiality.” Cofield v. City of LaGrange, 913 F.

Supp. 608, 618 (D.D.C. 1996) (citation omitted). See generally

United States Dep’t of Justice v. Landano, 508 U.S. 165 (1993).

We think it reasonable, for example, for the MVA to treat as “a

confidential source” a relative or close friend of the driver who,

though pained by the need to do so, writes the MVA in an attempt to

address the problem of a loved one who may not recognize that he

or she is no longer fit to drive. The informant would reasonably

expect confidentiality, so as to preserve the ties of intimacy that

might well be frayed or broken if the driver knew the referral source.

To quote the Cofield case cited above, “the informant’s relation to

the circumstances at issue supports an inference of confidentiality.”

Moreover, a breach of confidentiality, once generally known, would

likely impair the MVA’s ability to obtain drivers’ information from
Gen. 111 115

relatives or friends in the future. If, however, the MVA cannot

identify these or other circumstances rendering the referral source “a

confidential source,” then the driver would be entitled under the PIA

to obtain the referral letter. 

III

Status of Medical Report

The Maryland Vehicle Law contains a special confidentiality

provision applicable to the records of the Medical Advisory Board:

(1) The records of the Medical Advisory

Board:

(i) are confidential;

(ii) may be disclosed only on court

order; and

(iii) may be used only to determine

the qualifications of an individual to drive.

(2) A person may not use these records

for any other purpose.

As we read it, this provision is meant to safeguard the privacy

of a driver whose status is under review by the Board. Because the

Board’s records are intended to be used “to determine the

qualifications of an individual to drive,” and because the driver is

entitled to a hearing on that very issue, it is most unlikely that the

General Assembly intended the confidentiality command in TR §16-

118(d)(1)(i) to bar access by the driver. Therefore, we do not regard

this provision as “other law” to which the driver’s presumptive right

of access under the PIA must yield.

Nor, in our view, would any exemption in the PIA ordinarily

prevent the driver from obtaining access to the Board’s report about

that driver. Although the report is undoubtedly part of the MVA’s

investigatory file, none of the grounds in SG §10-618(f)(2) for
116 [82 Op. Att’y

3

 If the Board’s report identified a confidential source, that portion

may be redacted.

4

 SG §10-617(b)(2) refers inartfully to an individual’s access to

medical records under Title 4, Subtitle 3 of the Health-General Article.

This law generally allows a person in interest to inspect his or her own

medical records; the exceptions in this law are not pertinent here.

denying access by a person in interest could ordinarily be asserted.3

Another PIA provision, SG §10-617(b), generally requires denial of

“inspection of the part of a public record that contains medical or

psychological information about an individual ....” The person in

interest, however, is entitled to inspect this information. SG §10-

617(b)(2).4 

IV

Conclusion

In summary, it is our opinion that a driver whose fitness to

drive is under review because of the driver’s health condition is

generally entitled to inspect the MVA’s records pertaining to that

review, including a report of the Medical Advisory Board. The

driver may not inspect the letter that initiated the MVA’s review,

however, if the letter would reveal the identity of a confidential

source. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice