The Baltimore City Council is entitled to access to the report on the background check done on Joel Fitzgerald, the mayor’s nominee to be the next police commissioner.

Baltimore City Solicitor Andre Davis reportedly informed members of the Baltimore City Council that they will not be given access to the report on the background check done on Joel Fitzgerald, Mayor Catherine Pugh’s nominee to be the city’s next police commissioner. Mr. Davis described the report of the background check as a “personnel record” protected from disclosure under the Maryland Public Information Act (MPIA).

In my opinion, Mr. Davis has interpreted the prohibition against disclosure of personnel records too narrowly. I believe that the report of the background check may be provided to members of the council under the guidance issued by the Maryland Attorney General on access to personnel records.

The language of the statute itself is indeed restrictive. Under the law, the only person given the explicit right of access to an individual’s personnel records is the “elected or appointed official who supervises the work of the individual.”

Mr. Davis is correct that the report on the background check is a personnel record protected by the MPIA. In Kirwan v. The Diamondback, 352 Md. 74 (1998), the Maryland Court of Appeals held that “personnel records were those relating to hiring, discipline, promotion, dismissal, or any matter involving an employee’s status.” The background check certainly is related to the proposed hiring of Mr. Fitzgerald.

A too-literal interpretation of the statute, however, would lead to absurd results inconsistent with the law’s intent. For example, it would preclude the staff of a city or county human resources office from reviewing and screening application materials submitted by individuals seeking employment with the city or county.

The Maryland Attorney General long has recognized that this provision of the MPIA must be construed in the context of its purpose and intent. Persons other than an individual’s supervisor (whatever that means for a person who has not yet been hired) must have access to personnel records to do their jobs. In the latest edition of the Public Information Act Manual, the Attorney General states:

“It is implicit in the personnel records exemption that another agency charged with responsibilities related to personnel administration may have access to those records to the extent necessary to carry out its duties.” [MPIA Manual, p. 3-9.]

This principle first was described by the Attorney General in 86 Opinions of the Attorney General 94, 108-109 (2001). In that 2001 opinion, the Attorney General stated that the agency seeking access to the personnel records must be performing a “personnel function.”  In my experience, the Attorney General’s interpretation of the law has been widely embraced throughout state and local government.

Under Section 16-5 of the Code of Public Local Laws of Baltimore City, the appointment of a police commissioner by the mayor is “subject to confirmation by the City Council by a majority vote of its members.” In my opinion, the responsibility of the council to confirm the mayor’s selection of a police commissioner clearly is an integral part of the process of hiring the commissioner and therefore is a “personnel function” within the scope of the Attorney General’s guidance.

And I have no doubt that access to the report of the background check done on a police commissioner whose appointment the council is being asked to confirm should be considered necessary to carry out the council’s duty.  There may be something in Mr. Fitzgerald’s background that is acceptable to the mayor but not to a majority of the members of the council. If the report on Mr. Fitzgerald was available for consideration by the mayor, then it should be available for consideration by the council.

Mr. Davis expressed concern that if the report on the background check is provided to the council it will end up in the hands of the public. I get his concern, even though giving access to members of the council entitled to inspect it as part of their duties does not make the report “public” under the law.

I propose a practical precaution: I’d allow members of council to review the report, but not give them copies. No offense, council members, but city government leaks like a sieve and Mr. Fitzgerald’s privacy interests are entitled to reasonable protection, just like everyone else’s.

Also, I’d warn council members that, if they leak the contents of the report, they can be criminally prosecuted for violation of the MPIA. And a deliberate violation of the MPIA would constitute misconduct in office subjecting a member to further penalties including removal from office.

In conclusion, there’s a legally-acceptable resolution of the apparent impasse over the city council’s access to the report on the background check of Mr. Fitzgerald. In fairness to Mr. Fitzgerald, he should have been told all of this before applying for the job – what the process would entail, who would have access to his application information and under what conditions, etc. If he is unhappy with the council’s access, he has the option of withdrawing his candidacy for the position.  In any case, the city needs to get past the usual chaos and dysfunction that accompanies city actions and get to the business at hand.

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