Last week I described the misguided attempt by the administration of Mayor Brandon Scott to deny the city Office of Inspector General (OIG) access to records and information subject to the attorney-client privilege.

That effort is one of several fronts in the war being waged by the mayor and his administration on Inspector General Isabel Mercedes Cumming, a war intended to destroy the effectiveness of her office by cutting off its access to the information it needs to investigate and identify government fraud, waste and abuse.

The second front is aimed at denying the OIG’s access to all records and information that are subject to “mandatory denial” under the Maryland Public Information Act (MPIA), either through redactions or denial of access to entire documents.

On Friday the mayor posted a copy of a letter of advice written by Maryland Assistant Attorney General Shaunee L. Harrison and a letter to the mayor from City Solicitor Ebony Thompson providing her guidance on how Harrison’s advice should be implemented.

I find it troubling that Thompson’s letter contained no discussion of a footnote in one of the cases cited by Harrison that could be used to try to protect the OIG’s access to information rather than curtail it.

After reading Thompson’s letter, I am more convinced than ever that the alleged discovery by city officials that the OIG had gained “unapproved and unfettered” access to Law Department files and the sudden unearthing of 15-year-old case law by a state senator were simply pretexts for sidelining and defanging the OIG.

Reciting established law – with one omission

Harrison’s advice was sought by a political ally of the mayor, State Senator Antonio Hayes (D, 40th). Harrison’s letter faithfully describes the law as set forth by the Maryland Supreme Court in Montgomery County v. Shropshire (2011), and there is nothing in the letter with which I disagree.

In Shropshire, the court held that an internal affairs file in the custody of a police department was a “personnel record” subject to “mandatory denial” under the Maryland Public Information Act (MPIA), and access by a county inspector general must be denied, noting in its decision that the inspector general had not demonstrated a “special need” for the information.

• An alarming and baseless attack on Baltimore’s inspector general (2/2/26)

The court further held that, because county law is subordinate to state law, no county law could change that limitation on access.

Neither Harrison’s nor Thompson’s letter mentioned the possible exception for “special need” described in Shropshire.

I don’t fault Harrison for omitting it because it is a fact-dependent issue and is not within the narrow scope of the legal question presented to her.

I do question why Thompson omitted it, because it was directly relevant to her practical guidance to the mayor on access to records by the OIG.

Didn’t she think the mayor would be interested in taking advantage of the exception for special needs for access described in Shropshire to protect the OIG’s ability to do its job, given his professed commitment to transparency and integrity?
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“THE ACTIONS WE ARE RELUCTANTLY TAKING TODAY” – Text of Mayor Scott’s February 6 statement:

A “special need” for OIG access exists

In footnote 17, the final footnote in a lengthy opinion, the Shropshire court left open the possibility that the Montgomery County Inspector General could have access to records for which access otherwise was subject to mandatory denial if he could demonstrate a “special need.”

The court held that the IG failed to do so, however, because he could obtain the information in the internal affairs file relevant to his investigation “by culling primary sources.”

Information gathered by internal affairs investigators and kept in a separate file is one thing; the large volume of information from employees, vendors, contractors, permittees and others submitted to and gathered by city agencies in the normal course of business is quite another.

The records kept by those agencies of that information are the “primary sources” of the information.

Take away access to time and attendance records, including employee names, and you take away the OIG’s ability to investigate and identify wage fraud.

Take away unredacted access to invoices and financial information from vendors and other contractors, and you take away the IG’s ability to investigate other types of fraud and abuse.

In my opinion, the city solicitor should have no qualms about defending the position that the OIG has a special need for access to such information otherwise subject to mandatory denial under the MPIA, and she should apply her skills to help the city shape a policy that meets that need without violating the MPIA.

Unfortunately, it appears that the mayor doesn’t want to adopt a position helpful to the OIG.

Unfortunately, it appears that the mayor doesn’t want to adopt a position helpful to the OIG, and Thompson’s letter, by not mentioning the special need exception, gave him no reason to change his mind.

It is worth noting that, for the reasons described by the Maryland Attorney General in 65 Op Atty Gen 365 (1980), once the OIG gets possession of confidential city records it becomes a “de facto” custodian under the MPIA and is no freer to release the information to the public than the original custodian.

If an employee or contractor contends that the OIG’s access to information submitted to the city in the routine course of city business violates the MPIA, let that employee or contractor take that complaint to court.

City voters decided that the city needed an OIG with the ability to root out fraud, waste and abuse, and it is the duty of the mayor and his city solicitor to carry out the voter’s will, even if that occasionally involves litigation.

Doubling down on a weak argument

There is no body of case law fleshing out what justifies a “special need” for access by an IG to information subject to mandatory denial under the MPIA, which introduces an element of uncertainty into the application of the exception to specific situations.

The same is not true about the subject of my earlier commentary, which was that, under the law as described in Caffrey v. Montgomery County (2002)  city officials cannot invoke the attorney-client privilege to deny the OIG access to Law Department records.

The city solicitor makes no mention of Caffrey in her February 6 letter, in which she states that custodians of city records must deny the OIG access to information subject to mandatory denial under the MPIA, including information covered by the attorney-client privilege.

I believe that she is wrong when it comes to information covered by the attorney-client privilege.

In construing a provision of the Montgomery County charter substantially identical to Article X, Section 4(d) of the city charter, Caffrey goes into exquisite detail explaining that, once the attorney-client privilege has been waived by the charter, it no longer is a “mandatory denial” for purposes of the MPIA.

The rule that emerged from the Caffrey and Shropshire cases is this:

If information categorized as a “mandatory denial” under the MPIA is based on a privilege that can and has been waived by a local government, then that information must be treated as subject to a permissible (sometimes referred to as “discretionary”) denial under the MPIA and access to the information must be granted.

Caffrey and Shropshire are cases known to every local government lawyer in Maryland tasked with giving advice on the MPIA. It is beyond me how Shropshire could come as such a surprise to city lawyers, and why they still don’t seem to be aware of Caffrey.

Denial of legal counsel

As approved by voters in 2018, the OIG is independent of both the executive and legislative branches of city government, and Article X, Section 4(d)of the city charter gives the OIG the right to issue subpoenas for the records of city agencies and enforce them in court.

According to Cumming, she issued subpoenas for withheld information but was unable to go to court to enforce them because she was not provided a lawyer to file the suit. That lawyer would try to persuade a judge that the OIG needs the information to conduct investigations.

Failure to provide independent legal counsel to the OIG is the third front of this war.

The Law Department can’t represent both the OIG and the city agency or official it sues to enforce a subpoena.

Mayor Scott has the authority under Article VII, Section 24(c) of the charter to approve outside counsel for the OIG because of that conflict of interest. So far, he hasn’t done so.

For the OIG, no outside counsel means no enforcement of subpoenas and therefore no access to information necessary to investigate fraud, waste and abuse.

Failure to provide such counsel to the OIG to enforce subpoenas is the third front in the war against the OIG.

Conclusion

I don’t see how anyone could fall for the story that the sudden initiative to rein in the OIG is the result of an epiphany about decades-old Maryland case law.

That story is about as persuasive as Scott’s statement that he “reluctantly” took the recent actions restricting the OIG’s access to information.

I believe that the real reason for the war on the OIG is much more ominous, and that the survival of the OIG as a useful watchdog agency hangs in the balance.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.