Court Holds Montgomery County's 'Feet to the Fire'

Three citizens' groups have won a lawsuit alleging Montgomery County failed to turn over documents the residents sought in a campaign to keep an organic farm in Potomac from being turned into soccer fields.

The Montgomery County Circuit Court Tuesday sided with the West Montgomery County Citizens' Association, the Civic Association of River Falls and the Brickyard Coalition in ordering Montgomery County Executive Isiah Leggett to repeat a search for public documents related to the Brickyard Road controversy.

“[Tuesday] was a big win for us,” said Ginny Barnes, environmental chair of the West Montgomery County Citizens Association.

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The groups filed the lawsuit in March had not adequately responded to a Nov. 9, 2011 public information request. The county had continued to produce documents through the time of the hearing, well past the six-month deadline assigned by law.

The civic groups’ request asked for county documents and correspondence pertaining to the county's handling of the Brickyard Road Middle School site in Potomac. The land had been farmed by Nick Maravell of Nick's Organic Farm for 30 years before the Montgomery County Board of Education decided in March of 2011 not to renew Maravell's lease and instead lease the land to the county to develop into soccer fields.

Open Government Violations

The Brickyard Coalition has with the county's public notification process in the Brickyard issue, and in 2011 the Maryland Open Meetings Law Compliance Board found that county residents were not made sufficiently aware of the proceedings. in July 2011 claiming that the Open Meetings Act was violated and that the court should therefore reject the county’s claim on the land. before the case was to be heard.

The Montgomery County Circuit Court on Tuesday denied the county's motion to dismiss the public information suit and ordered the Montgomery County executive branch to redo the search for documents. This time the search is to be supervised by both the county and the Brickyard proponents.

Circuit Court Judge Ronald Rubin ordered that the civic groups and the county work out search criteria together by July 20. Judge Rubin also ordered the search to be conducted by the county technology department, which will look at all computers and servers for the records requested. According to Montgomery County spokesman Patrick Lacefield, the county suggested the technology department’s involvement.

“We are happy to bend over backwards to make sure that responsive email information is found,” he said.

The ordered search is to be completed by Aug. 3. After allowing time for review of the documents, the hearing will continue on Aug. 14.

The High Price of Information

Freedom of information lawsuits such as these are fairly common with federal public information laws, but less common under state laws regulating government transparency, according to Nathan Siegel, professor and public information expert at the University of Maryland Francis King Carey School of Law.

The suits are often expensive and time consuming, he said, keeping the price for going after desired information fairly high.

“It is difficult to prove an office has documents you think they have when they say they don’t,” Siegel said. “One way to avoid producing documents is not to do a thorough search.”

Lack of adequate searching is more commonly an issue with high numbers of documents, Siegel said.

Civic organizations in the Brickyard case are requesting all documents pertaining to the Brickyard soccer field project, the scope of which ranges from at least 12 county employees, and from emails to calendar items and memos, according to coalition member Curt Uhre.

According to Patrick Lacefield, the county’s stuttered response to the information request was  an oversight.

“In doing affidavits for [the] hearing, some additional emails were found that may have not been found before,” Lacefield said.

Brickyard Coalition members disagree, saying the county continues to withhold important documents detailing how the Brickyard Road deal came to pass. In some cases, the coalition alleges that the county misled it about lost documents such as an initial letter written by Leggett to the Board of Education asking to lease the land to the county.

Uhre said that while the county claims it can’t find the original document, it has sent a copy of the letter as attached to an earlier complaint of county conduct by Maravell.

Now that the Montgomery County Department of Technology Services will conduct the new information search, the civic groups are hopeful that any lost documents will be quickly recovered.

"This is a huge victory for the citizens of Montgomery County," Uhre said. "We're hoping the county will now in good faith do what the court has ordered them to do."

There are few legal reasons why the county wouldn’t produce the documents, and the most common of these are exemptions to the law allowing officials to withhold information, according to Siegel. Exemptions to public information requests include criminal investigations, personnel records and documents alleged to contain personal information. In the event that the county claims any of the exemptions, it would have to give reasons for why it is excluded and a description of what the document contains.

“It is a positive development when courts hold government officials’ feet to the fire to perform basic obligations,” Siegel said.

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