Could someone use Maryland's Public Information Act to see the licensing paperwork a private group home operator keeps on file, even though the state never actually collected copies of it?

Plain-English summary

State Senator Arthur Dorman asked the Attorney General whether the Public Information Act (PIA) reached certain records kept by private individuals and organizations applying for residential child care facility licenses from the Department of Human Resources (DHR). Under DHR's licensing scheme, an applicant kept records like insurance verification, personnel policies, staff medical exam reports, and fire authority approvals on site, where a DHR reviewer would examine them rather than have copies sent in and filed with the agency.

The opinion concluded these records were not "public records" under the PIA because the statutory definition covers documents made by a state or local government unit, or documents "received by" that unit. Since DHR never took possession of these applicant-held records, they never crossed into the category of records subject to inspection. The opinion leaned on federal Freedom of Information Act case law, since Maryland courts treat FOIA interpretations as persuasive authority for the PIA, and on Maryland appellate decisions treating agency possession as basic to what makes something a "public record."

Currency note

This opinion was issued in 1995. 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, definition, or procedure mentioned here, particularly since Maryland's Public Information Act has since been recodified into the General Provisions Article and amended many times.

Common questions

Were child care facility licensing records automatically public just because a state agency reviewed them?
No. The opinion explained that review by the Department of Human Resources at the applicant's own site did not turn those records into agency records; the PIA's definition of "public record" required either that the government unit made the document or that the unit received it, and DHR had done neither.

Did it matter that the person holding these records met the statute's definition of a "custodian"?
The opinion addressed this directly: the PIA's definition of "custodian" includes "any other authorized person" with physical custody of public records, but a private applicant only becomes a "custodian" if the records in that person's custody are themselves "public records" in the first place. Since these particular records were not public records, the applicant holding them was not a PIA custodian either.

Why did the opinion look at federal FOIA cases to answer a question about Maryland law?
The opinion noted that Maryland's Court of Appeals has held the PIA serves the same purpose as the federal FOIA, so federal FOIA interpretations are persuasive when interpreting the state statute. It relied on U.S. Supreme Court decisions like Forsham v. Harris holding that a federal agency's mere right to obtain data, without actually exercising that right, does not make the data an "agency record."

Background and statutory framework

Maryland does not generally operate group homes for children itself; private entities provide these services under licenses issued by DHR pursuant to FL §5-506, with the Department's licensing regulations set out at COMAR 07.02.23. Because of the volume of records involved, DHR decided it was more efficient to leave many compliance records on site with the applicant rather than require copies to be sent in, per COMAR 07.02.23.04J(2).

The opinion applied the PIA's public-inspection mandate in SG §10-613(a) against the statute's definition of "public record" in SG §10-611(f)(1), which requires that a document be either made by, or received by, a state or local government unit "in connection with the transaction of public business." The opinion also distinguished records held by a local department of social services, itself a state agency, from records held by a private group home applicant, noting that records regarding a group home operated by a local department would be public records because a local department functions as an arm of state administration.

Citations and references

Statutes:

• FL §5-526(a)(1), providing that residential child care services are generally intended to be provided by private entities rather than the State
• FL §5-506, §5-506(b), §5-508(a), and §5-509(a), authorizing DHR to license child care facilities and adopt licensing regulations
• SG §10-613(a), the PIA's general right of public inspection of "any public record"
• SG §10-611(f)(1), defining "public record" as documentary material made by, or received by, a government unit in connection with public business
• SG §10-611(f), defining "custodian" to include a person with physical custody and control of public records
• SG §§10-615, 10-616, 10-617, and 10-618, provisions allowing or requiring some public records to be kept confidential

Cases:

• Forsham v. Harris, 445 U.S. 169 (1980), holding that raw research data a federal agency had a right to obtain but never actually acquired was not an "agency record" under FOIA
• Kissinger v. Reporters' Comm. For Freedom of the Press, 445 U.S. 136 (1980), holding an agency did not improperly withhold records it did not possess at the time of the request
• U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136 (1989), holding agency possession is a prerequisite to a document becoming an "agency record"
• Faulk v. State's Attorney for Harford County, 299 Md. 493, 474 A.2d 880 (1984), holding the PIA mandates disclosure of records in the possession of certain agencies and that FOIA interpretations are persuasive
• Kline v. Fuller, 56 Md. App. 294, 467 A.2d 786 (1983), describing a public record as one "kept" by a state agency or official
• Harris v. State, 331 Md. 137, 626 A.2d 946 (1993) and Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1990), cited for the persuasive weight of federal FOIA interpretation in construing the PIA

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/1995/80oag257.pdf

Original opinion text

Gen. 257] 257

             PUBLIC INFORMATION ACT

C HILD C ARE ) L ICENSING-R ELATED R ECORDS H ELD B Y P RIVATE
C HILD C ARE P ROVIDERS A RE N OT S UBJECT TO THE P UBLIC
I NFORMATION A CT

                     December 20, 1995

The Honorable Arthur Dorman
Maryland Senate

  You have requested our opinion whether certain records are

subject to the Maryland Public Information Act ("PIA"). These
records are maintained by private persons who have applied for
residential child care facility licenses from the Department of
Human Resources (the "Department" or "DHR"). The records are
reviewed by the Department to determine the applicant's compliance
with licensing regulations but remain in the custody of the applicant,
not the Department.

 Our opinion is that these records are not "public records" as

defined in the PIA and, therefore, are not subject to the PIA.[1]

                               I

       Licensure of a Residential Child Care Facility

  The State generally does not operate group homes for children.

Instead, these services are intended to be provided by private
entities. §5-526(a)(1) of the Family Law ("FL") Article, Maryland
Code; Article 83C, §2-120(a). The General Assembly has
authorized DHR to license child care facilities.[2] FL §5-506. See
also FL §§5-508(a) and 5-509(a). Further, the General Assembly
has authorized the Department to adopt rules and regulations to carry
out its licensing duties. FL §5-506(b).

   Under the Department's licensing scheme, an applicant for a

license maintains information and documentation that is reviewed by
the Department to determine whether the applicant is in compliance
with State regulations. See COMAR 07.02.23. The types of records
that the Department reviews include, but are not limited to, the
following: verification of insurance coverage, personnel policies and
procedures, staff medical examination reports, articles of
incorporation, and annual reports of approval of the public fire
authority. See COMAR 07.02.23.04J(1). In light of the volume of
records involved, the Department does not require that copies of all
of these records actually be sent to it. The Department has decided
that it is more cost-effective and administratively efficient if these
records remain on site, where they can be reviewed. See COMAR
07.02.23.04J(2).

                               II

                      "Public Records"

  The PIA generally empowers 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 ("SG") Article.[3] The term "public record" is defined 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). In our opinion, this definition does not extend to records
that are required to be maintained by an applicant for a residential
child care facility license but that never come into the possession of
the Department.[4]

 The purpose of the PIA is identical to that of the federal

Freedom of Information Act ("FOIA").[5] Faulk v. State's Attorney
for Harford County, 299 Md. 493, 506, 474 A.2d 880 (1984). The
purpose of both statutes is to provide the public a general right to
inspect the records of government. Id. Thus, interpretations of the
federal statute are persuasive in interpreting the State statute. Id.
See also, e.g. Harris v. State, 331 Md. 137, 156-57, 626 A.2d 946
(1993); Zaal v. State, 326 Md. 54, 73, 602 A.2d 1247, 582 A.2d 981
(1990).

  Federal courts have held that, under the FOIA, a governmental

entity must have possession of a record for it to become an "agency
record."[6] In Forsham v. Harris, 445 U.S. 169 (1980), a private
group of physicians (hereafter "researchers") conducted a long-term
study of diabetes using grants awarded by a federal agency. 445
U.S. at 172. By regulation, the agency had the right to obtain access
to, or permanent custody of, the raw data generated by the study.
445 U.S. at 173. Nevertheless, the agency never exercised its right
to review or to obtain the raw data, and it never participated in the
daily administration of the study. Id.

 At the request of the agency, a small portion of the raw data

was reviewed by an outside group of experts. Id. The Food and
Drug Administration ("FDA") also reviewed a small portion of the
data, as well as the study reports. Following this review, the FDA
proposed a warning label for one of the medications that was
studied. 445 U.S. at 174.

  Seeking to facilitate its own review of the researchers' study,

another group of physicians made a FOIA request to the Department
of Health, Education and Welfare ("HEW"), the parent agency of the
FDA. The group requested the researchers' raw data. HEW denied
the request on the grounds that it had never acquired the raw data
and that the data were the property of the researchers.[7] 445 U.S. at

176. In affirming HEW's position, the Supreme Court held that the
     raw data had not been "created or obtained by a federal agency" and,
     therefore, were not agency records within the meaning of the FOIA.
     445 U.S. at 185.

     Similarly, in Kissinger v. Reporters' Comm. For Freedom of
     the Press, 445 U.S. 136, 150-51 (1980), the Supreme Court held that
     the State Department did not improperly withhold records requested
     under the FOIA, because it did not have possession of the records at
     the time of the request. Accord U.S. Dept. of Justice v. Tax Analysts,
     492 U.S. 136, 144 (1989) (agency must obtain record as a
     "prerequisite to its becoming an agency record").

     The appellate courts of this State have likewise treated
     governmental possession of records as fundamental to their being
     "public records." For example, in Faulk v. State's Attorney for
     Harford County, 299 Md. at 506, the Court of Appeals noted that
     "the Maryland Public Information Act, like the FOIA, mandates
     disclosure of certain records in the possession of certain agencies
     ...." (Emphasis added.) Further, in Kline v. Fuller, 56 Md. App.
     294, 304, 467 A.2d 786 (1983), the Court of Special Appeals opined
     that a public record is a record "kept" by a State agency or official.
     (Emphasis added.)

                             III
     
                         Conclusion
     

     In summary, it is our opinion that records are not "public
     records," as defined by the Public Information Act, when they are
     created and maintained by a private entity applying for a residential
     child care facility license and are not in the possession of a
     government agency.

                                    J. Joseph Curran, Jr.
                                    Attorney General
     
                                    Kathy F. Crosby
                                    Assistant Attorney General
     

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] A DHR regulation, COMAR 07.02.23, provides for the licensing
of a group home operated by a local department of social services, which
by law is a State agency. See Article 88A, §13 of the Maryland Code. See
also In re Adoption/Guardianship No. 2633 in the Circuit Court for
Washington County, 101 Md. App. 274, 301-02, 646 A.2d 1036 (1994),
cert. denied, 116 S. Ct. 56 (1995) (holding that a local department
functions as arm of State administration). Records regarding a group
home operated by a local department are "public records" under the PIA.

[2] The Department of Health and Mental Hygiene and the
Department of Juvenile Justice also have licensing authority over certain
group homes. See §§7-608 and 10-517 of the Health-General Article and
Article 83C, §2-123.

[3] Despite the label, of course not all "public records" are open to
public inspection. Some types of "public records" either may or must be
maintained in confidence. See SG §§10-615, 10-616, 10-617, and 10-618.

[4] In your letter, you point out that the definition of "custodian" in
SG §10-611(f) includes not only agency personnel but also "any other
authorized person." However, this definition renders someone a
"custodian" only if he or she "has physical custody and control of public
records" -- for example, as a contractor for an agency. Conversely, if the
records in someone's custody and control are not "public records," that
person is not a "custodian." Thus, the scope of the term "public record"
is determinative of your question.

[5] The FOIA is codified at 5 U.S.C. §552.

[6] The FOIA does not define the term "agency record," but under
federal case law an agency record is a document created or obtained by an
agency subject to the FOIA. Forsham v. Harris, 445 U.S. 169, 182
(1980).

[7] In an administrative proceeding held prior to the initiation of
judicial proceedings, the FDA released the raw data that it had in its
possession. 445 U.S. at 175.