Wang v. City of Rockville

Filing 18

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/7/2018. (c/m 02/08/2018 - jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division 7C13 FE3

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ERIC WANG,
Plaintiff,

Case No.: GRI-17-2131

V.

CITY OF ROCKVILLE
Defendant.

MEMORANDUM OPINION
Pro Se Plaintiff Eric Wang submitted a request for documents to the City of Rockville
("the City") on April 24, 2017 under the Maryland Public Information Act ("MPIA"), Md. Code
Gen. Prov. §§ 4-101 et seq. The City collected the documents but denied Plaintiff's request to
waive the associated fee. Plaintiff filed suit and claims that the City denied his fee waiver request
in violation of MPIA (Count I) and the United States and Maryland Constitutions (Count II).
Presently pending before the Court is the City's Motion for Summary Judgment, ECF No. 13,
and Plaintiff's Cross Motion for Partial Summary Judgment and Permanent Injunctive Relief as
to Count I, ECF No. 15. No hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the following
reasons, both motions are denied.
I. BACKGROUND
On April 24, 2017, Plaintiff submitted a MPIA request to Louise Atkins, MPIA
Coordinator for the Rockville, Maryland City Manager's Office, for records related to the City's
management and use of automated traffic control systems, including red light and speed cameras.
ECF No. 13-2. Following communications with Atkins on how to more efficiently narrow the
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City's search parameters, Plaintiff submitted a revised MPIA request on May 4, 2017. ECF No.
13-6; see also ECF No. 13-3 ¶ 4, 13-4 ¶ 2. Upon receipt of the revised request, Atkins informed
Plaintiff that pursuant to City policy, the City would search for and review responsive
documents, including emails from city officials, but that the City would charge Plaintiff for the
actual cost of its review beyond the first two hours of time incurred. ECF No. 13-7.
On May 11, Atkins informed Plaintiff that many of the requested documents were
publically available on-line, including budget documents, speed and red light camera program
goals, and public meetings, and provided the associated links. ECF No. 13-9. However, Atkins
estimated that the City would need to spend four to five hours to perform a search of city
officials' emails at a cost to Plaintiff of $125-250. Id. On May 19, the City informed Plaintiff that
it would respond to his MPIA request by May 26, 2017 at an anticipated cost of $150.25, plus
copying charges. ECF No. 13-10.
On May 21, Plaintiff requested a fee waiver, stating that his document request was in
furtherance of the public interest. ECF No. 13-11. Plaintiff indicated that he intended to use the
documents "for use in an op-ed regarding the proliferation of speed cameras and red light
cameras in the metropolitan Washington, DC area," and provide the documents to the Maryland
Drivers Alliance. ECF No. 13-11 at 2. Plaintiff further suggested that his MPIA request
warranted a fee waiver because he intended to reveal details of government operations related to
one of the City's major financial undertakings—not for a personal, private, or commercial
purpose. ECF No. 13-11 at 2. Ultimately, Atkins, on behalf of the City, denied Plaintiff's fee
waiver request, indicating that "[t]he City does not find that the reasons you offered are in the
public interest and does not believe that a waiver is in order." ECF No. 13-12. The City further
indicated that it had provided the two most expensive hours of its staff's search free of charge

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and offered to provide the responsive documents in an electronic format to save Plaintiff copying
charges. Id. Though correspondence between Plaintiff and the City occurred predominantly
through Atkins, Cynthia Walters, Deputy City Attorney, was personally involved in evaluating
and adjudicating Plaintiff's fee waiver request. ECF No. 13-3 ¶J 2, 3. In evaluating Plaintiff's fee
waiver request, Walters consulted with both the City Attorney and the City Manager, who is also
the official custodian of records. Id. ¶ 7.
Not satisfied with the City's response, Plaintiff filed suit in Montgomery County Circuit
Court on June 12, 2017. ECF No. 2. The City filed a Notice of Removal on July 28, 2017,
asserting that this Court has federal question jurisdiction over Count II pursuant to 28 U.S.C.
§ 1331 and supplemental jurisdiction over Count I pursuant to 28 U.S.C. § 1367. ECF No. 1.
STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). "This standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Thus, "[t]he party opposing a
properly supported motion for summary judgment 'may not rest upon the mere allegations or
denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a
genuine issue for trial." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525
(4th Cir. 2003) (quoting Fed. R. Civ. P. 56(e)) (alteration in original).
While the Court may rule on a motion for summary judgment prior to commencement of
discovery, see, e.g., Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 286

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(2d Cir. 2000), Federal Rule of Civil Procedure 56(d) "mandates that summary judgment be
denied when the nonmovant has not had the opportunity to discover information that is essential
to his opposition." Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014) (internal citation and
quotation marks omitted). "To obtain Rule 56(d) relief, the non-moving party bears the burden of
showing how discovery could possibly create a genuine issue of material fact sufficient to
survive summary judgment or otherwise affect the court's analysis." Poindexter v. MercedesBenz Credit Corp., 792 F.3d 406, 411 (4th Cir. 2015).
III. DISCUSSION
MPIA provides the public with the right to inspect public records of Maryland State and
local government agencies, including the City, but the agency may charge a reasonable fee to
search for, prepare, and reproduce the requested records. Md. Code Gen. Prov. § 4-206(b)(1).
The agency may waive this fee if "after consideration of the ability of the applicant to pay the fee
and other relevant factors, the official custodian determines that the waiver would be in the
public interest." Id. § 4-206(e)(2)(ii).1 While the public policies advanced by MPIA are virtually
identical to that provided in the federal Freedom of Information Act ("FOIA"), Action Committee
for Transit, Inc. v. Town of Chevy Chase, 145 A.3d 640, 648 (Md. Ct. Spec. App. 2016), only
MPIA specifies that the ability of an applicant to pay is a relevant consideration in granting a fee
waiver request. Cf FOIA, 5 U.S.C. § 552(a)(4)(A)(iii) ("documents shall be furnished without
any charge. . . if disclosure of the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requestor"). Plaintiff alleges that the City

An agency's decision to deny a fee waiver may only be overturned if the decision, based on "not only the agency
record, but also facts generated by pleadings, affidavit, deposition, answers to interrogatories, admission of facts,
stipulations and concessions," was arbitrary and capricious. Action Committee for Transit, Inc. v. Town of Chevy
Chase, 145 A.3d 640, 651 (Md. Ct. Spec. App. 2016).

denied his fee waiver in violation of both MPIA and the First Amendment of the U.S.
Constitution. Because the Court's determination of Plaintiffs MPIA claim depends, in part, on
his First Amendment claim, the Court will address Count II first.
A. First Amendment Claim (Count II)
In Count II, Plaintiff alleges that the "City denied Plaintiff's fee waiver request because
of the City's animus against Plaintiffs viewpoint and Plaintiffs expressed intention to use the
requested documents in a manner critical of certain City government programs," in violation of
the First Amendment of the Constitution and Article 40 of the Maryland Declaration of Rights.
ECF No. 2 ¶ 21. As a general matter, government officials may not restrict speech solely based
on the opinion or perspective of the speaker, and imposing financial burdens based on the
content of the speech or viewpoint of the speaker runs afoul of the First Amendment. See
Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 828, 829 (1995).2
The City states that its fee waiver denial complied with MPIA and asserts that there is no
evidence that the fee waiver request was denied based on the content of Plaintiffs speech. ECF
No. 13-1 at 18-193; see also ECF No. 13-3 ¶ 12 (Walters Affidavit). However, because Walters'
affidavit indicates that she was not the sole decision-maker in denying Plaintiffs fee waiver
request, Plaintiff argues that additional discovery is necessary to determine whether other
participating City employees, including the City Attorney and City Manager, engaged in
viewpoint discrimination. ECF Nos. 15-1 at 12; 15-2 (Rule 56 Declaration). Plaintiff is correct.
Plaintiff has not had an opportunity to discover additional evidence that may shed light
on how the City Attorney or City Manager influenced Walters' decision, and whether they
Article 40 of the Maryland Declaration of Rights is "co-extensive' with the First Amendment, and is construed in
pani materia with it." Borzilleri v. Mosby, 189 F. Supp. 3d 551, 557 (D. Md. 2016) (citing Kensington Volunteer Fire
Dep't, Inc. v. Montgomery Cty., Md., 648 F.3d 462, 468 n.3 (4th Cir. 2012)).
3 Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.

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displayed any animus towards Plaintiff based on his planned use of the information. Walters'
affidavit merely states that she consulted with the City Attorney and City Manager but sheds no
light on the substance of these conversations. See ECF No. 13-3 ¶ 7. In addition, because MPIA
provides that "the official custodian determines that the waiver would be in the public interest,"
Md. Code Gen. Prov. § 4-206(e)(2)(ii) (emphasis added), discovery from the City Manager may
create a genuine issue of material fact sufficient to survive a motion for summary judgment. The
City's motion for summary judgment on Count II must therefore be denied.
B. MPIA Claim (Count I)
The City asserts that it properly concluded that a fee waiver was not in the public interest.
The City believed that Plaintiff was able to pay the modest fee and that Plaintiff's anticipated oped piece and publication of the records by the Maryland Drivers Alliance would not result in
"broad public dissemination" of the documents. ECF No. 13-1 at 15, 17. In its Cross Motion for
Summary Judgment, Plaintiff also moves for summary judgment on Count I, arguing that the
City's determination that his fee request was not in the public interest was improper because the
City over-relied on Plaintiff's ability to pay the fee and ignored the statute's reference to "other
relevant factors." ECF No. 15-1 at 4.
The Court is only aware of two Maryland courts reviewing an agency's fee waiver
determination under Md. Code Gen. Prov. § 4-206(e)(2)(ii). In Mayor and City Council of
Baltimore v. Burke, the Maryland Court of Special Appeals ruled that an agency's decision to
deny a fee waiver based solely on the ability of the applicant to pay the fee, without considering
"other relevant factors" or the public interest, was arbitrary and capricious. 506 A.2d 683, 688
(Md. Ct. Spec. App. 1986). Twenty years later, in Action Committee for Transit, Inc., the same
court found that an agency's decision to deny a fee waiver based predominately on the

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applicant's prior criticism of that agency violated the First Amendment's prohibition on
viewpoint discrimination and was therefore "clearly arbitrary and capricious." 145 A.3d at 65354. Thus, if the City violated the First Amendment in denying Wang's fee waiver, the City's
action cannot be upheld under MPIA. The Court cannot rule on whether the City impermissibly
denied Plaintiff's fee waiver request without adjudicating Plaintiff's First Amendment claim.
Therefore, both motions for summary judgment must be denied at this time.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF No. 13,
shall denied, and Plaintiff's Cross Motion for Partial Summary Judgment and Permanent
Injunctive Relief, ECF No. 15, shall be denied. A separate Order follows.

Dated: February7 , 2018
GEORGE J. HAZEL
United States District Judge

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