Could Maryland law enforcement withhold a crime victim's name and address from a public records request?

Plain-English summary

A state senator asked the Attorney General several linked questions about crime victims' privacy under Maryland's Public Information Act (PIA): were crime complaints public records at all, was a victim's name and address disclosable, did victims already have any right to keep that information confidential (or could the legislature create one by amending Article 27, §761), and could the legislature constitutionally require police departments to adopt confidentiality regulations and to inform victims of their rights.

The Attorney General concluded that a crime complaint becomes a "public record" the moment a law enforcement agency writes it down in any form, and that a victim's name and address in that record was, in principle, subject to disclosure under the PIA. But the PIA's "investigatory records" exemption let a custodian, typically a police department, choose to withhold that information as part of an active investigatory file, weighing the requester's stated public interest against the victim's privacy interest; nothing in existing law forced disclosure, but nothing forced withholding either, so the decision was left to the custodian's discretion. On the constitutional questions, the opinion concluded the First Amendment gives the press no freestanding right to demand government information, so Maryland's legislature was free to enact a real, mandatory confidentiality right for crime victims' names and addresses (something the existing Article 27, §761 guidelines did not do) and to require law enforcement agencies to adopt regulations both protecting that confidentiality and informing victims of their rights.

Currency note

This opinion was issued in 1992. 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, including whether Article 27, §761 or its successor provisions and the cited sections of the State Government Article remain in the same form described here.

Common questions

Did a crime victim in Maryland have a legal right in 1992 to keep their name and address out of public records? No, according to this opinion. The Attorney General concluded that no provision of the Public Information Act or other law gave crime victims an enforceable right to have their names and addresses kept confidential, even though the Act generally recognized personal privacy as a value it sought to protect.

Could a police department refuse to release a victim's name and address anyway? Yes. The opinion identified the PIA's "investigatory records" exemption as a discretionary basis for a custodian to deny inspection of records compiled for a law enforcement or prosecution purpose, including the parts of a complaint identifying the victim, while weighing the public interest asserted by the requester.

Could the Maryland legislature have passed a law making crime victims' names and addresses confidential? Yes. The opinion concluded there was no constitutional barrier to the General Assembly enacting a law requiring all law enforcement agencies to keep victims' names and addresses confidential and to inform victims of their rights, including any such confidentiality right the legislature chose to create.

Does the First Amendment give reporters a right to get crime victims' names and addresses from the police? No. The opinion concluded that while the First Amendment generally stops the government from punishing the press for publishing information it already has, it does not create any constitutional duty for the government to hand over records or information in the first place.

Background and statutory framework

The Maryland Public Information Act, then codified in Title 10, Subtitle 6 of the State Government Article, created a general right for the public to inspect "any public record," defined broadly to include any documentary material made or received by a state or local government unit in connection with public business, in any form including computerized records. Under this definition, the opinion concluded, a crime complaint becomes a public record as soon as a law enforcement agency memorializes it in any form, making it potentially subject to a PIA request from that point forward.

Whether a given public record actually had to be disclosed depended on whether some provision of the PIA or other law prohibited or permitted withholding it. The opinion found no provision prohibiting disclosure of a crime victim's name and address, and no such name and address fell within any of the PIA's mandatory nondisclosure categories, even though SG §10-612(b) recognized a general rule of construction meant to guard against unwarranted invasions of personal privacy. The opinion did identify a discretionary basis for withholding: SG §10-618(f)(1) let a custodian deny inspection of records of a law enforcement investigation or an investigatory file compiled for a law enforcement or prosecution purpose, and SG §10-618(a) required disclosure of such records unless doing so would be contrary to the public interest, meaning the custodian had to weigh the victim's privacy interest against the public interest asserted by the requester on a case-by-case basis, rather than apply an automatic rule either way.

On the question whether the General Assembly could go further and create a real confidentiality right, the opinion reasoned that the legislature has plenary lawmaking power except where federal law or the Maryland Constitution limits it, and that a law protecting crime victims' names and addresses would raise, at most, a First Amendment objection that the press has a constitutional right of access to government records. The opinion concluded that no such right exists: the First Amendment stops government from punishing the publication of information already available, but it imposes no obligation on government to supply information or documents in the first place. On that basis, amending Article 27, §761 (whose existing crime-victim provisions were, the opinion noted, worded only as nonmandatory guidelines) to add a genuine confidentiality right would have the same practical effect as amending the PIA itself, since the PIA's own structure recognized that other law can determine whether a given record must be disclosed. The General Assembly, the opinion concluded, was also free to require law enforcement agencies to adopt regulations both protecting any such confidentiality right and informing victims of their rights generally.

Citations and references

Statutes:

• SG §10-613(a) (State Government Article), the PIA's general right of public inspection
• SG §10-611(f)(1) and (f)(1)(ii), defining "public record" to include computerized records
• SG §10-612(b), the PIA's rule of construction against unwarranted invasions of privacy
• SG §10-614(b)(3)(ii)1 and 2, requiring a custodian to state reasons and legal authority for denying a request
• SG §10-618(f)(1), the discretionary investigatory-records exemption
• SG §10-618(a), requiring disclosure of records within the PIA's discretionary exemptions unless contrary to the public interest
• Article 27, §761, the crime-victim provisions the senator asked about amending

Cases:

• Faulk v. State's Attorney, 299 Md. 493, 474 A.2d 880 (1984), cited on the investigatory-records exemption
• Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 229 A.2d 388 (1967), cited for the General Assembly's plenary lawmaking power
• Richards Furn. Corp. v. Board of County Comm'rs, 233 Md. 249, 196 A.2d 621 (1964), cited for the same principle
• Houchins v. KQED, Inc., 438 U.S. 1 (1978), cited for the principle that the First Amendment does not require government to supply information to the press
• The Florida Star v. B.J.F., 491 U.S. 554 (1989), cited for the principle that once information is available, the First Amendment generally bars punishing its publication
• Gartner v. United States Information Agency, 726 F. Supp. 1183 (S.D. Iowa 1989), cited for the principle that the legislature, not the First Amendment, establishes the extent of access to government documents
• Herald Co. v. McNeal, 511 F. Supp. 269 (E.D. Mo. 1981), cited for the holding that there is no First Amendment right of access to closed arrest reports
• Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), cited regarding First Amendment considerations once a judicial process has begun

Other authorities: Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975), quoted for the observation that "the Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act."

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/1992/Volume77_1992.pdf (this opinion appears at printed page 183 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.

PUBLIC INFORMATION ACT

Constitutional Law - Freedom of Speech and Press - Nondisclosure of Names and Addresses of Crime Victims

November 16, 1992

The Honorable Janice Piccinini
Maryland Senate

You have requested our opinion on several issues related to the application of the Maryland Public Information Act ("PIA") to complaints by victims of crime. You also ask about the constitutionality of legislation designed to maintain the confidentiality of the names and addresses of the victims of crime. Specifically, your questions are as follows:

1. Are complaints about alleged crimes public records?

2. Is the name and address of a victim of crime disclosable under the PIA?

3. Do victims of crimes presently have a right to maintain the confidentiality of their names and addresses? If not, would the General Assembly be able to afford such a right by amending Article 27, §761 of the Maryland Code?

4. May the General Assembly constitutionally direct all law enforcement agencies in Maryland to enact regulations to maintain the confidentiality of the names and addresses of victims of crime? May the General Assembly constitutionally direct all law enforcement agencies in Maryland to enact regulations to inform victims of crime of their rights, including the right to have their names and addresses maintained in confidence?

For the reasons stated below, we conclude as follows:

1. A complaint filed with a law enforcement agency becomes a "public record," within the meaning of that term in the PIA, when it is memorialized in any form by the law enforcement agency.

2. A record containing the name and address of a victim of a crime would be subject to disclosure under the PIA unless an exemption required or permitted its nondisclosure. The "investigatory records" exception in the PIA would often permit nondisclosure.

3. Although the PIA recognizes the policy of protecting personal privacy, victims of crime do not presently have an enforceable right to the maintenance of their names and addresses in confidence. That is, no provision in the PIA or other law prohibits disclosure of such names and addresses. Because the PIA in effect incorporates other pertinent law, an amendment to Article 27, §761 affording such a right of confidentiality would effectively prevent disclosure of a crime victim's name and address, should a public record containing them be requested under the PIA.

4. The General Assembly is constitutionally free to direct all law enforcement agencies in Maryland to enact regulations to maintain the confidentiality of the names and addresses of victims of crime and to inform victims of crime of their rights, including any right to confidentiality that might also be enacted by the General Assembly.

I

"Public Records"

The Public Information Act creates a general right on the part of members of the public to examine "any public record": "Except as otherwise provided by law, a custodian shall permit a person or governmental unit to inspect any public record at any reasonable time." §10-613(a) of the State Government Article ("SG" Article). The term "public record" is defined quite broadly to mean "the original or any copy of any documentary material that ... is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or the instrumentality in connection with the transaction of public business." SG §10-611(f)(1).1

Thus, a complaint of a crime to a law enforcement agency is a "public record" as soon as it is embodied in any form by the agency. From that moment on, the complaint would be amenable to a request under the PIA. Whether the complaint or any portion of it would be disclosable is addressed in Part II below.

II

Status of Crime Complaints

A public record must be disclosed upon request unless a provision of the PIA or other law prohibits the custodian from disclosing the record or a provision of the PIA or other law authorizes the custodian to refrain from disclosing it. If a request for a public record is to be denied, the custodian must notify the applicant of the reasons and legal authority for the denial. SG §10-614(b)(3)(ii)1 and 2.

No provision in the PIA prohibits disclosure of the name and address of a victim of crime. Although the PIA states a rule of construction that seeks to prevent "an unwarranted invasion of privacy of a person in interest," SG §10-612(b), nevertheless none of the specific exemptions in the law mandates the withholding of a crime victim's name and address.

One of the discretionary grounds for denial would be applicable to the particulars of a complaint that is in an investigatory file. Under SG §10-618(f)(1), "a custodian may deny inspection of records of investigations conducted by ... a police department ... [or] an investigatory file compiled for any other law enforcement ... or prosecution purpose." See generally Faulk v. State's Attorney, 299 Md. 493, 474 A.2d 880 (1984).

The custodian is not required to withhold this information, however.
Indeed, SG §10-618(a) requires the custodian to release information within any of the grounds for permissible denial in SG §10-618, including the investigatory file exemption, unless "inspection of a part of a public record by the applicant would be contrary to the public interest ..." Thus, for example, a custodian of an investigatory record containing the name and address of a victim of crime would be required under the PIA to consider not only the privacy interests of the victim but also assertions about the public interest in disclosure that are made by the requester. In the end, the decision is left to the discretion of the custodian; notwithstanding the privacy interests at stake, the PIA does not forbid such disclosure.

III

Constitutionality and Effect of New Legislation

Except as constrained by federal law or the Maryland Constitution, the General Assembly has plenary lawmaking power. See, e.g., Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 229 A.2d 388 (1967); Richards Furn. Corp. v. Board of County Comm'rs, 233 Md. 249, 196 A.2d 621 (1964).

Legislation that would bar the disclosure of the names and addresses of crime victims raises only one potential constitutional objection: the claim that a law of this kind would violate the free press guarantee of the First Amendment. The First Amendment, however, does not grant a right of access to this information. The "undoubted right [of the press] to gather news ... affords no basis for the claim that the First Amendment compels others - private persons or governments - to supply information." Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978).

To be sure, once information is made available, the First Amendment generally bars the government from preventing or punishing its publication. The Florida Star v. B.J.F., 491 U.S. 554 (1989). But "it is one thing to say that the government may not restrict the [press] from telling the news to their readers, and quite another to argue that the government has a constitutional duty to supply the [press] with the news to write about. It is for the Congress" - or, in Maryland, the General Assembly - "to establish the extent of access to government documents; the first amendment does not do so." Gartner v. United States Information Agency, 726 F. Supp. 1183, 1188 (S.D. Iowa 1989). See also Herald Co. v. McNeal, 511 F. Supp. 269 (E.D. Mo. 1981) (no First Amendment right of access to closed arrest reports); Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975) ("The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.").2

Thus, we conclude that there is no constitutional inhibition against the General Assembly's enacting a law that would require all law enforcement agencies to maintain the names and addresses of victims of crime in confidence. The General Assembly is also free to impose on law enforcement agencies a duty to inform victims of crime of their rights, including any right that the General Assembly might provide for the maintenance of their names and addresses in confidence.

Should the General Assembly determine to add such a right to Article 27, §761, as your letter suggests, the legal effect would be the same as if the PIA itself were amended.3 That is, the PIA recognizes in several places that the status of a public record might be determined by other law. See SG §§10-613(a), 10-615, 10-616(a), 10-617(a), and 10-618(a).

IV

Conclusion

In summary, it is our opinion that no provision of current law affords victims of crime the right to insist on maintenance of the confidentiality of their names and addresses. There is no constitutional bar to the General Assembly's enacting such legislation, should it make the policy decision to do so.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1
A public record can be in any form, including a computerized record. SG
§10-611(f)(1)(ii).

2
This discussion addresses only the status of documents prior to the filing of charges. The First Amendment considerations are different once the judicial process has begun. See generally, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).

3
Care would need to be taken in the drafting of such an amendment to achieve a mandatory effect. At present, all of the provisions of Article 27, §761 are stated as nonmandatory guidelines.