Did Maryland's public records law protect unsolicited letters commenting on a government job applicant's qualifications, not just letters the applicant asked someone to write?

Plain-English summary

The Chairman of the Governor's Information Practices Commission asked the Attorney General whether the Maryland Public Information Act's exemption protecting "letters of reference" from public disclosure covered unsolicited letters, not just letters an applicant had arranged to have written on their behalf. The specific context was the Washington Suburban Sanitary Commission, where the list of applicants for appointment was open for public inspection, prompting members of the public to send the county executive unsolicited letters commenting on particular applicants' qualifications. The opinion found the statutory term "letters of reference" itself ambiguous, since dictionary definitions split between a reference solicited by a job-seeker and any written statement about someone's qualifications regardless of who requested it, and the one court decision to touch on the term left the question open. Looking instead to the purposes behind the Public Information Act, balancing public access against personal privacy and encouraging candor in communications about prospective appointees, the opinion concluded that both purposes applied equally to solicited and unsolicited letters, and so held that the "letters of reference" exemption covered all letters, solicited or not, concerning a person's fitness for public office or employment.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion analyzed the Public Information Act as codified in Article 76A of the Maryland Code, noting that its records provisions had already been recodified, without substantive change, as Title 10, Subtitle 6, Part III of the State Government Article by the time of the opinion. Maryland's public records exemptions and appointment procedures for bodies like the Washington Suburban Sanitary Commission have continued to develop since 1983; verify the current State Government Article and any applicable county or commission procedures before relying on any specific exemption described here.

Common questions

If someone wrote a letter to a Maryland official criticizing or praising a job applicant without being asked to, could the public see that letter?
No, according to this opinion. It concluded that the Public Information Act's "letters of reference" exemption applied to all letters concerning a person's fitness for public office or employment, whether the letter was solicited by the applicant or the appointing official or was sent unsolicited by a member of the public.

Why did the opinion protect unsolicited letters the same way as solicited ones?
The opinion identified two purposes behind the exemption that applied equally to both kinds of letters: protecting the personal privacy of the person being discussed, since such letters often contain private information, and encouraging candor from people willing to comment on a prospective appointee's qualifications, a concern the opinion also found reflected in Maryland's common-law qualified privilege for good-faith statements about a person's fitness for employment.

Did the term "letters of reference" have a clear legal definition in 1983?
No. The opinion found the term ambiguous on its face, noting that Black's Law Dictionary suggested a reference solicited by the job-seeker while Webster's included any written statement about someone's qualifications regardless of who asked for it, and that the one relevant court decision it could find, a California case, acknowledged the phrase could carry either meaning depending on context.

Background and statutory framework

The opinion analyzed Article 76A, §3(c)(iv) of the Maryland Public Information Act, which required a custodian to "deny the right of inspection" of "letters of reference" without further definition, in the context of appointments to the Washington Suburban Sanitary Commission, a bi-county agency whose applicant list was made open to public inspection under Article 67, §1-103. Because members of the public, reviewing that open list, sometimes wrote unsolicited letters to the county executive about particular applicants, the opinion had to decide whether those letters fell within the "letters of reference" exemption. Finding no Maryland case construing the term and only one out-of-state decision, Board of Trustees of Stanford Univ. v. Superior Court of Santa Clara County, acknowledging that "letters of reference" could mean either solicited recommendations or any written response to an inquiry about someone's character, the opinion turned to the Act's stated purpose in Article 76A, §1A: construing the statute toward public access "unless an unwarranted invasion of the privacy of a person in interest would result".

The opinion reasoned that both privacy protection and candor promotion, purposes it found embodied in the exemption, applied without regard to whether a letter was solicited, drawing an analogy to Maryland's common-law qualified privilege for good-faith statements about an employee's or applicant's fitness, recognized in cases like Jacron Sales Co. v. Sindorf and extended to voluntary, unsolicited statements in the 1880 decision Fresh v. Cutter. The opinion also noted that if an unsolicited letter about an employee's qualifications were placed in that employee's personnel file, it would already be protected from disclosure under the Act's separate personnel-file exemption in §3(c)(iii), making it implausible that the General Assembly intended a different, more exposed result for unsolicited letters about applicants for public appointment. On that basis, the opinion concluded that the "letters of reference" exemption reached both solicited and unsolicited letters concerning a person's fitness for public office or employment.

Citations

Statutes:

• Article 76A, §3(c)(iv) [SG §10-616(d)] ("letters of reference" exemption from inspection)
• Article 76A, §1A [SG §10-612(b)] (Act construed toward public access absent unwarranted privacy invasion)
• Article 76A, §3(c)(iii) [SG §10-616(h)] (personnel files exemption)
• Article 67, §1-103 (Washington Suburban Sanitary Commission appointment procedures)
• Article 67, §1-103(a)(1)(ii) (public inspection of the applicant list)
• 5 U.S.C. §552(b)(6) (federal FOIA personal privacy exemption, for comparison)
• 20 U.S.C. §1232g(a)(1)(B)(ii) (federal Buckley Amendment, for comparison)
• 45 C.F.R. §99.12(a)(2)(i) (regulation defining "confidential" letters under the Buckley Amendment)

Cases:

• Smelser v. Criterion Ins. Co., 293 Md. 384, 388-89 (1982)
• Board of Trustees of Stanford Univ. v. Superior Court of Santa Clara County, 174 Cal. Rptr. 160 (Ct. App. 1981)
• Philadelphia Newspapers, Inc. v. Department of Justice, 405 F.Supp. 8 (1975)
• Jacron Sales Co. v. Sindorf, 276 Md. 580, 599 (1976)
• Sindorf v. Jacron Sales Co., 27 Md. App. 53, 68-69 (1975)
• Fresh v. Cutter, 73 Md. 87 (1880)
• Taker v. Poliak, 405 N.Y.S.2d 1, 7 (N.Y. 1978)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative. Note: this opinion begins on printed page 335 of the volume, but the running page header on several of its pages misprints the citator tag as "Gen. 330]" (the previous opinion's number) rather than "Gen. 335]"; the opinion's own title, date, addressee, and signature block confirm it is a separate, independently issued opinion.

Public Information—Exemptions—Confidential Records—"Letters of Reference"—Exemption for Letters of Reference Applies to Both Solicited and Unsolicited Letters.

August 9, 1983

Mr. Arthur S. Drea, Jr.
Chairman
Governor's Information Practices Commission

You have requested our opinion as to the meaning of the term "letters of reference" in the Maryland Public Information Act, Article 76A of the Maryland Code.* Specifically, you inquire whether a provision of the Public Information Act, which requires a custodian to deny requests for inspection of "letters of reference", applies to unsolicited letters from members of the public to a government official concerning the qualifications of persons who have applied for a public office.

For the reasons given below, we have concluded that the provision exempting "letters of reference" from public disclosure applies to all letters, solicited or unsolicited, that concern a person's fitness for public office or employment.

I
Background

The specific context of your inquiry concerns the selection of members of the Washington Suburban Sanitary Commission ("WSSC"), a bi-county agency. Detailed procedures for the selection of WSSC members are set out in statute. Under Article 67, §1-103 of the Maryland Code, appointments are made from a list of applicants. This list is "open to the public for inspection from the time the list is first begun until an appointment is made by the County Executive". Article 67, §1-103(a)(1)(ii).1

• [Editor's Note: The records provisions of the Public Information Act have since been recodified, without substantive change, as Title 10, Subtitle 6, Part III, of the new State Government Article ("SG" Article). Cross-references to the new codification have been added to the text in brackets.]

As you point out, "[s]ince the applicant list may be examined by the public, members of the public frequently send letters to the county executive expressing views regarding the qualifications of particular applicants. These letters are neither solicited by the county executive nor by the applicants themselves." You question the status of these letters under the "letters of reference" exemption in the Maryland Public Information Act ("PIA").2

1 Comparable procedures previously appeared in §86-1-1 of the Montgomery County Code, now repealed.
2 The County Attorney for Montgomery County has concluded that all "written expressions regarding applicant qualifications must be considered 'letters of reference'". Memorandum from Paul A. McGuckian, County Attorney, to Neal Potter, President of the Montgomery County Council (August 6, 1979). However, Montgomery County Council Member Esther P. Gelman believes that unsolicited letters of comment from the public regarding WSSC applicants are not "letters of reference".

II
Analysis

Under Article 76A, §3(c)(iv) [SG §10-616(d)], "[t]he custodian shall deny the right of inspection of the following records or any portion thereof, unless otherwise provided by law: . . . [l]etters of reference". The PIA contains no definition of "letters of reference", and the term has not been construed by any Maryland court.3

In construing statutes, the "cardinal rule", of course, is to "carry out the real legislative intent". In determining that intent, the Court considers the language of an enactment in its "natural and ordinary signification". Smelser v. Criterion Ins. Co., 293 Md. 384, 388-89 (1982).

3 Three other states, Colorado, New Mexico, and Wyoming, have public information statutes that include a specific exemption for "letters of reference". None of those statutes contains a definition of the term. Moreover, we have been unable to find any reported court decision construing a "letter of reference" exemption in a public information statute. But see Board of Trustees of Stanford Univ. v. Superior Court of Santa Clara County, 174 Cal. Rptr. 160 (Ct. App. 1981), discussed in text accompanying note 5 below.

Turning first to the dictionary, we find no entry for "letters of reference". A "reference" is defined in Black's as a "person who will provide information for you about your character, credit, etc." Black's Law Dictionary 1151 (rev. 5th ed. 1979). This definition suggests that a letter of reference is one solicited by the job-seeker.4

On the other hand, "reference" is defined in Webster's as either "[o]ne of whom inquiries can be made as to the integrity, capacity, etc. of another" or "[a] written statement of the qualifications of a person seeking employment, . . . given by his previous employer or by someone familiar with his character, ability, experience, training, or the like". Webster's New International Dictionary 2092 (2d ed. 1953). The latter definition certainly covers unsolicited letters.

The only reported court decision that seems to have construed the term "letters of reference" also suggests that the term may or may not refer to unsolicited letters, depending on the context. In Board of Trustees of Stanford Univ. v. Superior Court of Santa Clara County, 174 Cal. Rptr. 160 (Ct. App. 1981), one issue was whether an employee who was suing the university for defamation was entitled to discover "letters of recommendation or reference to the university concerning [the employee], written when he was being considered for employment at the university". 174 Cal. Rptr. at 166.5

4 Black's does contain the following definition of "letter of recommendation": "A writing whereby one person certifies concerning another that he is of good character, solvent, possessed of commercial credit, skilled in his trade or profession, or otherwise worthy of trust, aid, or employment. It may be addressed to an individual or to whom it may concern, and is designed to aid the person commended in obtaining credit, employment, etc." Black's Law Dictionary 1144 (rev. 5th ed. 1979). Presumably, an unsolicited commendation would come within this definition. However, a "letter of recommendation" by definition is laudatory; a "letter of reference" need not be. Thus, the two terms are not synonymous, and the scope of the "letter of recommendation" definition cannot simply be imputed to the statutory term "letter of reference".
5 It is not clear whether any of the letters were in fact unsolicited. This point was not germane to the case.

Under a California statute, the employee was entitled to inspect his personnel file, except for "letters of reference". The statute did not define the term. The court wrote as follows about the meaning of the term: "It is undoubtedly true that the phrase will often mean communications concerning the 'qualifications of a person seeking employment . . . given by someone familiar with them.' But just as often it will connote answers in writing from persons 'to whom inquiries as to character or ability can be made.' (See Webster's New Collegiate Dict. (7th ed. 1972) 'reference', p. 719.)" 174 Cal. Rptr. 167-68.

In sum, the term "letters of reference" is uncertain. Intrinsically, it neither embraces nor excludes unsolicited letters.

Thus, we must look beyond the language itself to the structure and apparent purposes of the PIA. In that light, we conclude that the exemption for "letters of reference" applies to solicited and unsolicited letters alike.

One evident purpose of the PIA is to balance the right of public access with the protection of personal privacy. "[T]he provisions of this act shall be construed in every instance with the view toward public access, unless an unwarranted invasion of the privacy of a person in interest would result therefrom." Article 76A, §1A [SG §10-612(b)]. The exemption for "letters of reference" serves this purpose, because letters of this type, whether solicited or unsolicited, often contain private information about the subject of the letter.6

Indeed, if an unsolicited letter about an employee's qualifications is incorporated into that employee's personnel file, the letter in that file would not be available for public access, because the custodian may not disclose "personnel files". Article 76A, §3(c)(iii) [SG §10-616(h)]. The employee's privacy interests are thereby protected. It is difficult to see why the General Assembly would have intended a different result when an unsolicited letter concerns the qualifications of a prospective employee.

6 The federal Freedom of Information Act contains no comparable exemption. A letter of reference must be disclosed unless its disclosure would result in a "clearly unwarranted invasion of personal privacy". 5 U.S.C. §552(b)(6). See Philadelphia Newspapers, Inc. v. Department of Justice, 405 F.Supp. 8 (1975). The General Assembly's express inclusion of a blanket "letters of reference" exemption suggests its intention to protect letters that might be disclosable under the federal standard.

A second purpose that we may reasonably ascribe to the "letters of reference" exemption is the furthering of candor in the selection process. Those who are inclined to write about the qualifications of a prospective State or local government appointee are more likely to be plainspoken if their letters are not made publicly available. Again, this goal of increased candor applies to solicited and unsolicited letters alike.7

We find support for this latter point in the law of defamation. "It is an established general rule that a communication respecting the character of an employee or former employee is qualifiedly privileged if made in good faith by a person having a duty in the premises to one who has a definite interest therein, and this is true even though the communication contains a charge of crime." 50 Am.Jur.2d Libel and Slander §273 (1970).8 Under this rule, a defamatory letter of reference does not give rise to a damage action unless the letter is not only false but also sent with actual malice. See Jacron Sales Co. v. Sindorf, 276 Md. 580, 599 (1976).

7 It can be argued that someone who writes an unsolicited letter about a prospective appointee to a prominent body like the WSSC has no expectation of confidentiality. That may often be true. However, even some writers of solicited letters of reference are indifferent about subsequent disclosure. The General Assembly has evidently made a judgment that it wishes to protect the entire class of "letters of reference", without differentiation as to expectations of confidentiality. Should the General Assembly decide to change the law in this regard, one possible model is the federal Buckley Amendment, governing access to educational records. Under this statute, access may be denied to certain "confidential letters and statements of recommendation". 20 U.S.C. §1232g(a)(1)(B)(ii). The only elaboration of the term "confidential" is a regulation that describes these letters as "solicited with a written assurance of confidentiality, or sent and retained with a documented understanding of confidentiality". 45 C.F.R. §99.12(a)(2)(i).
8 The qualified privilege extends to "persons [who] have a bona fide belief that they owe a moral or social duty to inform a new or prospective employer about an employee". Sindorf v. Jacron Sales Co., 27 Md. App. 53, 68-69 (1975), aff'd, 276 Md. 580 (1976). Certainly citizens who write unsolicited letters about prospective appointees to public office are carrying out their social duty.

The reason for the development of this qualified privilege at common law is similar to the policy that in part underlies the "letters of reference" exemption in the PIA: the public interest that requires protection of candor in those communications. See Sindorf v. Jacron Sales Co., 27 Md. App. 53, 67-68 (1975), aff'd, 276 Md. 580 (1976).

Thus, it is especially noteworthy that the Court of Appeals has expressly applied the qualified privilege to even unsolicited communications concerning a prospective employee. In Fresh v. Cutter, 73 Md. 87 (1880), an employee sued his former employer for slander. The former employer, "voluntarily and without being requested", told the plaintiff's prospective new employer that the plaintiff was a thief. 73 Md. at 91. To the objection that voluntary statements are outside the scope of the qualified privilege, the Court responded: "[T]he mere fact of the communication being voluntarily made, does not necessarily exclude it as a non-privileged communication; for a publication warranted by an occasion apparently beneficial and honest, is not actionable in the absence of express malice." 73 Md. at 93.

We think it clear that this reasoning would apply to volunteered statements about the qualifications of prospective appointees to public positions. See Taker v. Poliak, 405 N.Y.S.2d 1, 7 (N.Y. 1978) (voluntary communication to judicial selection committee is qualifiedly privileged).9 And, because the PIA exemption for "letters of reference" serves similar public policy objectives, we conclude that such unsolicited statements are intended to be included within the exemption.

9 See note 8 above.

III
Conclusion

In summary, it is our opinion that the provision of the Maryland Public Information Act that requires the custodian to deny requests for inspection of "letters of reference" applies to all letters, solicited and unsolicited, that concern a person's fitness for public office or employment.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
James P. Casey, Assistant Attorney General
Avery Aisenstark
Chief Counsel
Opinions and Advice