Could a Maryland governor's cabinet agencies make the Legislative Auditor file a formal public-records request before examining agency files?

Plain-English summary

Governor William Donald Schaefer asked the Attorney General to sort out a standoff between his cabinet agencies and the Legislative Auditor, the Legislative Branch official who audits Executive Branch agencies. After a dispute between the Secretary of State and the Auditor over file access, the Governor had directed his cabinet secretaries to require the Auditor to submit a written, detailed description of requested records before getting access, citing both the Maryland Public Information Act and executive privilege. The opinion addressed five specific questions about what procedures agencies could impose on the Auditor.

The opinion concluded that the Public Information Act, including its written-application requirement, simply did not apply to the Legislative Auditor's exercise of the audit statute's own access powers, disapproving language in two earlier AG opinions that had suggested otherwise. But that did not mean agencies had no leverage at all: the opinion found that because the Governor holds a constitutionally grounded executive privilege, an agency could require the Auditor to identify in advance the categories of records sought, so the agency could determine whether any of them might be privileged and, if so, consult the Governor before granting access. Purely factual records with no possible privilege claim had to be produced without delay. The opinion also concluded agencies could not require advance written questions for staff interviews (though staff could decline to answer questions touching on privileged matters until the issue was resolved), could limit the Auditor's access to normal business hours, and were not entitled to notice when the Auditor sought information about their employees from other sources.

Currency note

This opinion was issued in 1991 and interpreted the audit statute and Public Information Act as they existed in the State Government Article at that time, including a proposed amendment (Senate Bill 133) that the opinion's own editor's note records was enacted later that year as Chapter 474 of the Laws of Maryland 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis further since then, and the Public Information Act has since been substantially renumbered. Treat this page as historical context, not current legal advice. Verify the current text of the audit statute, the Public Information Act, and current executive privilege case law before relying on any specific rule described here.

Common questions

Could a Maryland governor's agencies force the Legislative Auditor to file a formal public-records request?
According to this 1991 opinion, no. The Attorney General concluded the Public Information Act's written-application requirement did not apply to the Legislative Auditor's exercise of the separate audit statute's access powers, because the audit statute was a self-contained mechanism the legislature never intended to burden with the Act's procedural requirements.

Did agencies have to just hand over every record the Auditor asked for immediately?
Not always, according to the opinion. Agencies could require the Auditor to identify categories of records in advance so the agency could determine whether any might be covered by executive privilege, a doctrine the opinion traced to the constitutional separation of powers. Purely factual records with no plausible privilege claim, like time sheets or invoices, still had to be produced without delay.

Could an agency require the Auditor's staff to submit interview questions in advance?
No, according to the opinion, though an individual staff member could decline to answer a specific question immediately if it touched on a matter that might be covered by executive privilege, until that privilege issue was resolved.

Background and statutory framework

The opinion traced Maryland's audit statute back to 1902, when the General Assembly created the office of State Auditor with broad authority to compel production of records, later reorganized into the modern Legislative Auditor position in 1968. It found that the audit statute, now largely at SG §2-1218, gave the Division of Audits access to "the records, including those that are confidential by law, of any unit of the State government," and imposed a duty on audited agencies to provide whatever information the Auditor found needed for the audit, SG §2-1218(a) and (b), backed by criminal penalties for noncompliance under SG §2-1219(c)(1) and SG §2-1222. The opinion found this access mechanism predated the Public Information Act (first enacted in 1970) and was never linked to it, and it specifically disapproved language in two earlier opinions, 60 Opinions of the Attorney General 554 (1975) and 63 Opinions of the Attorney General 453 (1978), that had suggested the Act's procedures applied to the Auditor, while leaving intact those opinions' separate and correct conclusions about the Act's confidentiality provisions not blocking the Auditor's access to otherwise-confidential records.

Independent of the Public Information Act question, the opinion grounded an advance-notice requirement in the doctrine of executive privilege, which the Court of Appeals had recognized in Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980), as flowing from the separation-of-powers principle in Article 8 of the Declaration of Rights. Because the Governor has the constitutional prerogative to assert privilege over confidential communications of an advisory or deliberative nature, as opposed to purely factual material, the opinion reasoned that this prerogative would be meaningless unless agencies got a chance to screen requested records before disclosure. The opinion also addressed the timing and manner of audits, concluding that audits were to be conducted during ordinary business hours under SG §2-1217 absent agency agreement otherwise, and clarified that while the Auditor could reach records held by other agencies under the broad language of SG §2-1218(a), those other agencies had no independent legal duty to answer questions or provide information unless the Auditor invoked the audit statute's authority, in which case an ordinary Public Information Act request (with its written-application requirement) would apply instead.

Citations and references

Statutes:

• §10-614(a)(1) of the State Government Article, the Public Information Act's written-application requirement
• SG §2-1204, placing the Division of Audits within the Department of Fiscal Services in the Legislative Branch
• SG §2-1216(a)(1) and (2) and (b), defining the scope of an audit
• SG §2-1218(a), granting the Division of Audits access to records of any State government unit
• SG §2-1218(b), imposing a duty on audited agencies to provide needed information
• SG §2-1219(c)(1), authorizing the Legislative Auditor to issue process for a refused record
• SG §2-1222, the criminal penalty for failing to comply with process
• SG §2-1217, requiring audits to take place at the audited unit's offices
• SG §2-1221(a), the audit statute's confidentiality mandate for Division of Audits employees
• SG §2-1222(2), the criminal penalty for breaching audit confidentiality
• Chapter 257, Laws of Maryland 1902, creating the office of State Auditor
• Former Article 19, §32, the original State Auditor access and penalty provision
• Chapter 456, Laws of Maryland 1968, creating the office of Legislative Auditor
• former Article 40, §61C, carrying forward the access language for the Legislative Auditor
• Chapter 698, Laws of Maryland 1970, enacting the original Public Information Act
• Chapter 1006, Laws of Maryland 1978, the major overhaul of the Public Information Act adding the written-application requirement
• SG §10-614(b)(1), the Public Information Act's up-to-30-day response period
• SG §10-619, the Public Information Act's temporary denial authority
• SG §10-621, the Public Information Act's search fee provision
• Chapter 604, Laws of Maryland 1980, amending the audit statute's access provisions
• SG §2-1221(a)(2), limiting audit-confidentiality disclosure to other Division of Audits employees
• Proposed SG §2-1221(b)(2), the pending Senate Bill 133 amendment allowing disclosure to certain federal, state, or local auditors
• Chapter 474 of the Laws of Maryland 1991, enacting Senate Bill 133 (per the opinion's editor's note)
• Article 8 of the Declaration of Rights, Maryland's constitutional separation-of-powers provision

Cases:

• Murphy v. Yates, 276 Md. 475, 348 A.2d 837 (1975), Maryland Court of Appeals decision on limits to an audit's proper purpose
• Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980), Maryland Court of Appeals decision recognizing the Governor's constitutional executive privilege
• Laws v. Thompson, 78 Md. App. 665, 693, 554 A.2d 1264 (1989), Maryland appellate decision holding purely factual material falls outside executive privilege

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 287-299 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LEGISLATIVE AUDITOR

Public Information Act - Executive Privilege - Procedures
Applicable to Auditor's Requests for Records and
Information

                        March 18, 1991

The Honorable William Donald Schaefer
Governor

You have requested our opinion on the procedures to be followed by

the Legislative Auditor during an audit of an Executive Branch agency.
Specifically, you pose the following questions:

1.     May the agency require the Legislative Auditor to identify

in advance the documents that the Auditor wishes to examine?

2.     May the agency require the Legislative Auditor to submit a

written application, pursuant to the Maryland Public Information Act
("PIA"), for access to documents?

3. May the agency require the Legislative Auditor to submit in
   advance questions that the Auditor wishes to pose to the agency's staff?

   4. May the agency restrict the Legislative Auditor's access to
      files to the normal business hours of the agency?

4. Is the Legislative Auditor required to notify the agency if the
   Auditor seeks information about an agency employee from a different
   agency or other source?

For the reasons stated below, we conclude as follows:

1.       An executive branch agency may require the Legislative

Auditor to provide advance indication of the categories of records that
the Legislative Auditor intends to examine. This advance notice would
permit the agency to determine whether any of the records are subject
to a claim of executive privilege under the Maryland Constitution.

  If the Legislative Auditor identifies a category of records that the

agency knows cannot contain material subject to executive privilege,
for example, purely factual records like time sheets or invoices, the
agency must make those records available without delay. If the
Legislative Auditor identifies a category of records that the agency
reasonably believes might contain material subject to executive privilege,
the agency may decline to permit the Legislative Auditor access to those
records until the agency reviews the records and, if necessary, consults
with the Governor about the invocation of executive privilege.

2. The agency may not require the Legislative Auditor to submit
   a written application for records pursuant to the PIA. The PIA does not
   apply to the exercise of the Legislative Auditor's statutory powers in the
   course of an audit.

   3. The agency may not require the Legislative Auditor to submit
      in advance questions to be answered by the agency's staff. However,
      if a staff member is asked for information that might reasonably be
      encompassed by executive privilege, the staff member may decline to
      respond until the issue of the privilege is resolved.

   4. The agency may require the Legislative Auditor to conduct
      a review of records during the agency's regular business hours only.

   5. The Legislative Auditor is not required to notify the agency
      of requests for information from other sources (for example, other
      agencies). However, nothing prevents an agency that receives the
      request from notifying the agency that is the subject of the audit.
      Moreover, if an employee of the Legislative Auditor requests
      information from another agency without stating an organizational
      affiliation and without invoking the powers granted under the audit
      statute, the agency that receives the inquiry should treat it as a request
      subject to all of the procedures of the PIA, including the requirement of
      a written application.

                                  I
      
             Procedures for Access to Documents
      

A. Introduction

   On March 8, 1991, you instructed your cabinet secretaries to

prohibit the Legislative Auditor from obtaining access to agency records
unless the Auditor had first submitted a "written, detailed description"
of the records for which access was sought. Your directive followed a
disagreement between the Secretary of State and the Legislative Auditor
over access to certain files at a time when no agency employee was
present.1

 Your directive cited the PIA as a basis for the requirement of a

written application. And, indeed, §10-614(a)(1) of the State
Government Article ("SG" Article) provides as follows: "A person or
governmental unit that wishes to inspect a public record shall submit a
written application to the custodian." Moreover, in your letter of the
same date requesting this opinion, you pointed to the doctrine of
executive privilege as another basis for the requirement of an advance
request for access.

In Part IB below, we consider the relationship between the right of

access in the statute specifically governing the Legislative Auditor and
the procedural mechanisms of the PIA. We conclude that the PIA does
not govern access to an agency's records in the course of an audit, and
we disapprove statements in two prior opinions of the Attorney General
suggesting otherwise.

In Part IC, we consider the procedural implications of the doctrine

of executive privilege, and we conclude that the doctrine itself leads to
a requirement of advance notice when the Legislative Auditor intends to
inspect the records of an Executive Branch agency.

    1
      Your letter requesting this opinion cited this and other incidents giving

rise to your concerns about the current practices of the Legislative Auditor. Not
surprisingly, the Auditor takes a different view of the facts of these incidents. An
Attorney General's opinion cannot attempt to reconcile differing versions of
events. In any case, the legal guidance provided in this opinion does not depend
on the particular facts about these incidents.

B. Relationship of Audit Statute and PIA

Audits are conducted by the staff of the Division of Audits, part of

the Department of Fiscal Services and therefore within the Legislative
Branch of State government. See SG §2-1204.

 The jurisdiction of the Division of Audits is broad: every audit

includes "an examination of financial transactions and records" and "an
evaluation of compliance with applicable laws and orders"; many audits
also include "a review of the efficiency and economy with which
resources are used" and "a review to determine whether desired program
results are achieved effectively." SG §2-1216(a)(1) and (2) and (b). As
Attorney General Burch observed, when discussing the audit statute
prior to its recodification, "the general auditing authority of the
Legislative Auditor is not to be narrowly construed .... [I]n general
terms the Legislative Auditor has broad authority to inquire into the
performance of State agencies and to examine their records in making
an assessment of their performance." 63 Opinions of the Attorney
General 453, 455 (1978).2

Under SG §2-1218(a), those conducting an audit are afforded a

comparably broad right of access to records:

               Except as prohibited by the federal Internal
         Revenue Code, during an audit, the employees of
         the Division of Audits shall have access to and
         may inspect the records, including those that are
         confidential by law, of any unit of the State
         government or of a person or other body
         receiving State funds, with respect to any matter
         under the jurisdiction of the Division of Audits.

   SG §2-1218(b) goes on to impose the following duty on agency

staff: "Each officer or employer of the unit or body that is subject to
audit shall provide any information that the Legislative Auditor finds to

    2
       Although the jurisdiction of the Legislative Auditor is broad, it is not

limitless. An audit may not be conducted solely for the purpose of determining
the criminal culpability of particular individuals. Cf. Murphy v. Yates, 276 Md.
475, 348 A.2d 837 (1975). The audit statute itself contemplates that criminal
matters will be referred by the Legislative Auditor to the Attorney General and
the State's Attorneys. SG §2-1220(b).

be needed for the audit, including information that otherwise would be
confidential under any provision of law." The Legislative Auditor may
issue process to an official who refuses "to produce a record that is
needed for the audit." SG §2-1219(c)(1). A person who fails to comply
with process is guilty of a misdemeanor and is subject to a fine. SG §2-
1222. Audits are to take place where the agency's records would
ordinarily be found, "at the offices of the State unit ... that is subject
to audit." SG §2-1217.

The audit statute also contains its own mandate for confidentiality,

generally prohibiting disclosure by employees of the Division of Audits
of "[i]nformation ... obtain[ed] during an audit." SG §2-1221(a).3 A
breach of this confidentiality stricture is a criminal offense. SG §2-
1222(2).

On their face, these provisions of the audit statute look like a self-

contained mechanism for access by the Legislative Auditor to agency
records. They do not incorporate, either expressly or by reasonable
inference, the quite separate mechanism for access set out in the PIA.
Moreover, the history of the two statutes suggests that the two are not
linked.

In 1902, the General Assembly created the office of State Auditor,

whose responsibility was to audit the accounts of certain fee-generating
State officers as well as other officers at the direction of the Board of
Public Works. Chapter 257, Laws of Maryland 1902. The State
Auditor's authority to examine records was broad: "The State Auditor
is hereby authorized and empowered to require the production before
him of the books and accounts of said officers and to examine upon oath
any officer whose office he is hereby authorized to examine touching the
affairs thereof, or to examine upon oath any other person as a witness
who he may be advised has important information in regard to the
conduct of such office.... [T]he examination of the books shall be made
in the offices of the different officers whose books are to be examined."

       3
         Under current law, disclosure is permitted only to "another employee

of the Division." SG §2-1221(a)(2). Senate Bill 133, as adopted by the Senate,
would also permit disclosure to "[f]ederal, State, or local officials or their auditors
who provide evidence to the Legislative Auditor that they are performing
investigations, studies, or audits related to that same audit and who provide
justification for the specific information requested." Proposed SG §2-1221(b)(2).

The statute also provided a criminal penalty for an officer's refusal to
permit access to the books and accounts. Former Article 19, §32.

 When the position of State Auditor was abolished and that of

Legislative Auditor created in 1968, the same language was carried
forward. Chapter 456, Laws of Maryland 1968. See former Article 40,
§61C.

In 1968, the Public Information Act had not been enacted. Hence,

at that time, no one would have supposed that the Legislative Auditor
was subject to a statutory requirement of a written application for access
to an agency's records. Nor did the PIA itself contain such a
requirement when it was enacted in 1970. See Chapter 698, Laws of
Maryland 1970.

In 1975, the Attorney General first considered the audit statute and

its relationship to the PIA. The particular issue was "whether the
Legislative Auditor in the performance of his State duties should be
allowed to review employee personnel folders." 60 Opinions of the
Attorney General 554 (1975). Without significant analysis, the opinion
merely stated as a premise "that the restrictions against disclosure in [the
PIA] would apply to investigators for a State agency to the same extent
as members of the general public." 60 Opinions of the Attorney General
at 555.4 The opinion did not discuss the applicability of the PIA's
procedural requirements (at the time, minimal) to the Legislative
Auditor.5

In 1978, the General Assembly enacted a major overhaul of the PIA.
Chapter 1006, Laws of Maryland 1978. In particular, the 1978

    4
       The 1975 opinion relied for this proposition on an earlier opinion, 58

Opinions of the Attorney General 53 (1953), that applied the PIA to a request for
records by an individual member of the General Assembly. The 1953 opinion
concluded correctly that the member stood in no different position than any other
member of the public. 58 Opinions of the Attorney General at 60. The 1975
opinion, however, ignored the salient difference between an individual member
acting on his or her own behalf, on the one hand, and an official acting under
statute on behalf of the General Assembly as a whole.
5
The opinion concluded correctly that the audit statute afforded access
to records that would otherwise be confidential under the PIA itself. 60 Opinions
of the Attorney General at 556-57.

amendments made it clear that a government agency's access to the
records of another agency was subject to the PIA's confidentiality
provisions. In addition, the 1978 amendments added the requirement
now found in SG §10-614(a)(1) of a "written application," itself made
expressly applicable to government agencies as well as other requesters.

   Later that year, the Attorney General revisited the issue of the

Legislative Auditor's access to records treated as confidential by the PIA
itself. Relying on the 1975 opinion and, more importantly, on the then-
recent amendments to the PIA, the Attorney General stated that the PIA
"regulates access by the Legislative Auditor to medical records of the
Department of Health and Mental Hygiene." 63 Opinions of the
Attorney General 453, 458 (1978). However, once again the opinion
did not discuss the procedural aspects of the PIA and their potential
effect on the access provisions of the audit statute. Rather, the opinion
analyzed only the issue of confidentiality, whether a type of record
subject to the PIA's prohibition on disclosure might nonetheless be
disclosed to the Legislative Auditor, given the breadth of the access right
in the audit statute. The opinion quite convincingly demonstrated that
the PIA was not a barrier to disclosure.6

 Then, in 1980, the General Assembly returned to the audit statute,

amending it in part in order to "specif[y] the manner of access to records
to be audited ... [and] the duties of persons and agencies being audited
" Chapter 604, Laws of Maryland 1980 (bill title). The General
Assembly repealed the old provisions on access to records and
information and enacted in their place what is now SG §2-1218(a) and
(b). The legislation was introduced at the request of the Department of
Fiscal Services to "clarif[y] the authority of the Legislative Auditor with
regard to access to records ...." Letter to Delegate John R. Hargreaves,
Chairman of the House Appropriations Committee, from William S.
Ratchford, Director of Fiscal Services (January 31, 1980).

Nothing in the 1980 legislation or its legislative history suggests that
the two Attorney General opinions had been understood to authorize

    6
       As in the 1975 opinion, the Attorney General concluded that the audit

statute was "other law" authorizing access to records categorized as confidential
by the PIA: "[T]he PIA itself does not limit the Legislative Auditor's otherwise
broad authority to gain access to these records for the purpose of performing his
lawful duties." 63 Opinions of the Attorney General at 459.

imposition of the procedural requirements of the PIA on the Legislative
Auditor. Had agencies sought to do so, surely this legislation would
have dealt with the subject, for there can be no doubt whatever that the
procedures of the PIA are in most respects altogether incompatible with
the efficient conduct of an audit. For example, the access right granted
by the audit statute would be severely compromised if an agency were
permitted to delay its response to the Legislative Auditor's request for
access for up to 30 days. See SG §10-614(b)(1). It is likewise
impossible to imagine that the General Assembly intended to allow an
agency to delay an audit indefinitely by invoking the temporary denial
authority in SG §10-619 or meant to authorize the agency to impose
search fees under SG §10-621.

As we see it, the General Assembly intended its audit function to be
an independent exercise of its constitutional prerogative to engage in
oversight of Executive Branch agencies, concerning both their handling
of funds and their performance. See 63 Opinions of the Attorney
General at 453-54. And, as the 1980 amendments to the audit statute
made clear, the General Assembly has unmistakably imposed a duty on
Executive Branch officials to provide the information necessary to the
conduct of an audit by the Legislative Auditor.

 It would be wholly at odds with that legislative objective for us to

conclude that the General Assembly, when it expanded the PIA in 1978
to encompass governmental agency requests, intended to impose
significant procedural barriers to the prompt completion of an audit.
Accordingly, we conclude that the PIA, including its "written
application" requirement, does not apply to the Legislative Auditor's
conduct of an audit. Although we do not overrule 60 Opinions of the
Attorney General 554 and 63 Opinions of the Attorney General 453,
because both opinions correctly treated the questions actually presented
in them, we disapprove the statements in those opinions suggesting that
the PIA does apply to records access during an audit by the Legislative
Auditor.

C. Notice Requirement As A Function of Executive Privilege

Our conclusion that the PIA does not require a "written application"
when the Legislative Auditor wants to examine agency records as part
of an audit does not end the analysis, however. In our view, an
Executive Branch agency may insist on advance notice of the Legislative
Auditor's intention to examine a group of records in order to permit the

agency to consider whether disclosure to the Auditor would breach
executive privilege.

We recognize that, by statute, the Legislative Auditor is in essence

authorized to examine any record pertinent to the agency's performance,
in practice, then, any agency record. But the statute cannot give the
Legislative Auditor power in excess of that allocated to the General
Assembly under the Constitution.

 In Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980), the

Court of Appeals held that the Governor had the prerogative to assert
executive privilege over certain advisory documents. The Governor's
prerogative is not merely a matter of common law; executive privilege
is grounded in part on the separation of powers principle expressed in
Article 8 of the Declaration of Rights. 287 Md. at 562.7 Although
Verdow dealt with discovery in litigation, this office later opined that
"there can be no doubt that the privilege also applies, for the same
reasons, to disclosures to or on demand of the Legislative Branch." 66
Opinions of the Attorney General 98, 101 (1981).

The prerogative to assert executive privilege would be meaningless

if an official of the Legislative Branch were free to examine records of
an Executive Branch agency without affording an opportunity for the
agency to ascertain whether any of the records were subject to a claim
of executive privilege.8 To be sure, very often an agency will be able
to conclude immediately that the category of records in question does
not contain any document for which executive privilege might be
asserted. No tenable claim of executive privilege could be made about

    7
       Article 8 provides as follows: "That the Legislative, Executive and

Judicial powers of Government ought to be forever separate and distinct from
each other; and no person exercising the functions of one of said Departments
shall assume or discharge the duties of any other."
8
This opinion is not the occasion for a detailed examination of the scope
of the privilege. In one passage in Hamilton v. Verdow, the Court of Appeals
described the privilege as potentially applicable to "confidential communications
of the chief executive, or confidential communications of other governmental
officials of an advisory or deliberative nature." 287 Md. at 563. By contrast,
"purely factual material," divorced from any deliberative context, is outside the
privilege. Laws v. Thompson, 78 Md. App. 665, 693, 554 A.2d 1264 (1989).
See also 66 Opinions of the Attorney General at 100 and 102.

time or leave records, details of purchases, or other similar documents
simply reciting the facts about transactions. Because no constitutionally
grounded privilege could be claimed for those types of records and
because SG §2-1218 wipes away any confidentiality requirement arising
from statute or common law, an agency must honor the Legislative
Auditor's request for access in these instances without delay.

   In other instances, however, the agency might need time to

determine whether privileged documents exist within the category of
records sought by the Legislative Auditor. The agency must be afforded
the opportunity to make that judgment and, if documents seemingly
meeting the criteria for executive privilege are sought by the Legislative
Auditor, to consult with the Governor about the potential assertion of the
privilege. The audit statute may not be construed to foreclose
reasonable agency efforts to protect documents within the scope of
executive privilege.

D. Summary

An Executive Branch agency may require the Legislative Auditor to
identify in advance the categories of records that the Auditor wishes to
examine. As a practical matter, this requirement should not be an
impediment to the Legislative Auditor, because the Auditor's Policy and
Procedure Manual already instructs the staff of the Division of Audits
to "[r]equest permission before utilizing agency records." Section
20.05.01, at 6.

If the agency is aware that a given category of records identified as

needed for the audit contains no material for which executive privilege
might be asserted, the agency should promptly grant the Legislative
Auditor unrestricted access to those records. If the agency concludes
that certain records might be subject to executive privilege, it may
temporarily deny the Legislative Auditor access to those records while
the Governor decides whether to assert executive privilege. If the
Governor does not do so, the records should be made available
immediately.

Should the Governor assert executive privilege, the agency must

deny the Legislative Auditor access to those records. At that point, the
Legislative Auditor would be free to issue process for the records, and
the matter would then be resolved by the courts.

                                  II


  Procedures for Obtaining Nondocumentary Information

  SG §2-1218(b) imposes a duty on the agency being audited to

"provide any information that the Legislative Auditor finds to be needed
for the audit, including information that otherwise would be confidential
Nothing in the statute imposes a duty on the Auditor to submit
questions in advance, and such a requirement would seriously impede
the audit process. Most requests for information are entirely routine and
are part of the day-to-day dialogue between agency staff and auditors.

At the same time, an employee of an agency may decline to respond
immediately to a question calling for disclosure of matter seemingly
within the scope of executive privilege. As with documents, the agency
may withhold the requested information while a decision is made about
assertion of the privilege.

                                  III

                    Time of Conduct of Audit

SG §2-1217 provides that an audit is to take place "at the offices of

the State unit... that is subject to audit." Although the statute does not
address the timing of the audit, the reference to the unit's "offices"
implies that the agency's staff ordinarily would be present during the
audit.9 From an auditor's point of view, moreover, they would need to
be present to respond to questions. Therefore, we conclude that an audit
is to be conducted during the ordinary business hours of the agency
under audit, unless the agency permits a different arrangement.

  Our understanding is confirmed by the Auditor's Policy and

Procedure Manual, which provides that auditors generally are to work
the same hours as the agency. Exceptions are to be approved by the
agency: "The auditee may object to auditors working with their records

    9
      In 1980, when the audit statute was significantly amended, the General

Assembly rejected a proposed amendment that would have required the presence
of agency staff during an auditor's review of certain medical records.

when the office is not officially open; therefore, we must obtain the
auditee's concurrence prior to implementing ... alternative work
schedules." Section 20.01.01, at 1.

                                  IV

           Information Requests to Other Agencies


 The audit statute is not entirely consistent about the Legislative

Auditor's authority with respect to agencies other than the one being
audited. On the one hand, SG §2-1218(a) authorizes access to the
records "of any unit of the State government ...." This language is
certainly broad enough to give the Auditor the right to obtain records
from one agency related to the audit of another. This provision is
entirely logical, for an audit of an agency's financial transactions, for
example, would be incomplete without routine verification of certain
matters in the records of the Comptroller, the Treasurer, or the
Department of Budget and Fiscal Planning.

    On the other hand, SG §2-1218(b) imposes a duty to provide

information only on the staff "of the unit or body that is subject to audit
....,'10 Thus, employees of an agency other than the one under audit are
under no legal duty to respond to questions (as distinct from requests to
examine records) from the Auditor.11

 Nothing in the audit statute or any other applicable law requires

notice to the audited agency of efforts to gain information from other
sources. Although such notice might often be courteous and conducive
to good working relations, it is not legally required.

Finally, we note that if a staff member of the Division of Audits

were to request access to records without laying claim to the authority
granted by SG §2-1218(a), that person would be subject to the PIA in

    10
       The phrase "that is subject to audit" means the agency actually being

audited, not merely any that could be audited. See SG §2-1217.
11
Of course, nothing precludes an agency from responding to requests
from the Legislative Auditor for generally available information.

every respect, including its procedural requirements. An agency should
not respond to anonymous oral requests.

                                V

                           Conclusion

 In this opinion, we have sought to give full effect to the objectives

of the General Assembly in enacting the audit statute, while at the same
time preserving a privilege of the Governor derived from the
Constitution itself. We hope that this discussion clarifies the matter for
all concerned and that the vital audit function can continue in an
atmosphere of cooperation between the branches.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                            Opinions & Advice

Editor's Note:

  Senate Bill 133, referred to in note 3, was enacted as Chapter 474

of the Laws of Maryland 1991.