In The Court of Appeals of Maryland

WATERKEEPER ALLIANCE, INC. et al., Petitioners,

v.

MARYLAND DEPARTMENT OF AGRICULTURE et al., Respondents.

No. 01289 September Term 2011

ON PETITION FOR A WRIT OF CERTIORARI TO THE MARYLAND COURT OF

SPECIAL APPEALS

PETITION FOR A WRIT OF CERTIORARI

Leah M. A. Kelly Environmental Integrity Project One Thomas Circle, Suite 900 Washington, DC 20005 (202) 263-4448 Counsel for Petitioners

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TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................. i

TABLE OF AUTHORITIES ........................................................................................... ii

QUESTIONS PRESENTED ............................................................................................ 1

OPINION BELOW ......................................................................................................... 1

JURISDICTION .............................................................................................................. 2

STATEMENT OF FACTS .............................................................................................. 2

REASONS FOR GRANTING THE WRIT ..................................................................... 5

CONCLUSION ............................................................................................................. 15

APPENDIX

1. Docket Entry of the Circuit Court………………………………………..App. 1

2. Order & Memorandum Opinion of the Circuit Court (Feb. 10, 2009)…...App. 2

3. Order of the Circuit Court (July 14, 2011)……………………………….App. 3

4. Decision of the Court of Special Appeals………………………………..App. 4

ii

TABLE OF AUTHORITIES

Cases

Bowen v. City of Annapolis

402 Md. 587, 937 A.2d 242 (2007) ..............................................................8, 9, 10

Coleman v. State

281 Md. 538, 380 A.2d 49 (1977) ......................................................................... 9

Dep’t of Human Res., Balt. City Dep’t of Soc. Servs. v. Hayward

426 Md. 638, 45 A.3d 224 (2012) ....................................................................... 14

Falik v. Prince George’s Hosp. and Med. Ctr.

322 Md. 409, 588 A.2d 324 (1991) ..................................................................... 14

Fioretti v. Md. State Bd. Of Dental Exam’rs

351 Md. 66, 716 A.2d 258 (1998) ......................................................................... 5

Haigley v. Dep’t of Health and Mental Hygiene

128 Md. App. 194, 736 A.2d 1185 (1999) ....................................................... 5, 15

Kirwan v. The Diamondback

352 Md. 74, 721 A.2d 196 (1998) ..................................................................... 6, 7

Kushnell v. Dep’t of Natural Res.

385 Md. 563, 870 A.2d 186 (2005) ................................................................. 8, 10

Marriott Emp. Fed. Credit Union v. Motor Vehicle Admin.

346 Md. 437, 697 A.2d 455 (1997) ............................................................... 13, 14

Md. Dep't of State Police v. Md. State Conference of NAACP Branches

430 Md. 179, 59 A.3d 1037 (2013) ................................................................... 5, 6

Mayor and City Council of Balt. v. Chase

360 Md. 121, 756 A.2d 987 (2000) ............................................................9, 11, 12

Md. State Police v. Warwick Supply & Equip. Co., Inc.

330 Md. 474, 624 A.2d 1238 (1993) ................................................................... 15

Office of Governor v. Wash. Post Co.

360 Md. 520, 759 A.2d 249 (2000) ................................................................... 5, 6

iii

Whitely v. Md. State Bd. of Elections

429 Md. 132, 55 A.3d 37 (2012) ......................................................................... 11

Statutes

Md. Code Ann., Agric. § 8-306 (West 2013) ........................................................... 11, 12

Md. Code Ann., Agric. § 8-306(b) (West 2013) ............................................................. 12

Md. Code Ann., Agric. § 8-306(b)(2) (West 2013) ........................................................ 12

Md. Code Ann., Agric. § 8-801 (West 2013) ............................................................... 2, 3

Md. Code Ann., Agric. § 8-801.1 (West 2013) .............................................................. 11

Md. Code Ann., Agric. § 8-801.1(b)(1) (West 2013) ....................................................... 3

Md. Code Ann., Agric. § 8-801.1(b)(2) (West 2013) .............................................. passim

Md. Code Ann. State Gov’t § 10-612(b) (West 2013) .................................................... 15

Md. Code Ann. State Gov’t § 10-615 (West 2013) .................................................... 3, 15

Md. Code Ann., Cts. & Jud. Proc. § 12-203 (West 2013) ................................................. 2

Md. Rule 8-301(a)(3) (West 2013)................................................................................... 2

Other Authorities

COMAR 15.20.07.06A(2) ............................................................................................... 3

COMAR 15.20.07.06A(3) ............................................................................................... 3

COMAR 15.20.07.06A(4) ............................................................................................. 14

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QUESTIONS PRESENTED

I. Did the Court of Special Appeals err in broadly interpreting an exemption to disclosure under the Maryland Public Information Act, where such exemptions must be construed narrowly and in favor of disclosure?

II. Did the Court of Special Appeals err in holding that Agriculture Article § 8-801.1(b)(2) applies to all types of nutrient management records maintained for any period of time where the plain language expressly applies only to nutrient management plan summaries maintained by the Maryland Department of Agriculture for three years or less?

III. Did the Court of Special Appeals err in deferring to the Maryland Department of Agriculture’s interpretation of Agriculture Article § 8-801.1(b)(2), where that expansive interpretation conflicts with the narrowly-tailored exemption to disclosure provided by the plain language of the statute?

PETITION FOR A WRIT OF CERTIORARI

Petitioners Waterkeeper Alliance, Inc., Assateague Coastkeeper, Lower

Susquehanna Riverkeeper, Patuxent Riverkeeper, Potomac Riverkeeper, Inc., Severn

Riverkeeper, South Riverkeeper, and West/Rhode Riverkeeper, Inc., by their attorneys,

the Environmental Integrity Project, respectfully petition this Court to issue a writ of

certiorari to review the judgment of the Court of Special Appeals in Waterkeeper

Alliance, Inc. et al. v. Maryland Department of Agriculture et al., Md. Ct. Spec. App.

Sept. Term 2011 No. 01289.1

OPINION BELOW

The opinion reported in the Court of Special Appeals of Maryland is attached to

this Petition in its entirety.

1 Baltimore Harbor Waterkeeper does not join this Petition.

2

JURISDICTION

The Court of Special Appeals entered its judgment on May 2, 2013. Petitioners

invoke jurisdiction in this Court pursuant to Md. Code Ann., Courts and Judicial

Proceedings § 12-203 and Md. Rule 8-301(a)(3) (West 2013).

STATEMENT OF FACTS

This case presents an appeal from the Court of Special Appeals’ May 2, 2013

opinion affirming the Anne Arundel Circuit Court’s interpretation of Md. Code Ann.,

Agriculture § 8-801.1(b)(2) (West 2013). The circuit court’s interpretation of Agric. § 8-

801.1(b)(2) undermines transparency in the state’s nutrient management program, denies

Petitioners’ access to information necessary to evaluate threats to local waterways,2 and

hinders Maryland citizens’ ability to determine whether the Maryland Department of

Agriculture (“MDA”) is properly utilizing taxpayer funds. In affirming the circuit court’s

interpretation, the Court of Special Appeals broadly construed an exemption to the

Maryland Public Information Act (“PIA”), departed from well-established rules of

statutory interpretation, and improperly deferred to MDA.

Agric. § 8-801.1(b)(2), a provision of Maryland’s Water Quality Improvement Act

(“WQIA”), states that the MDA “shall maintain a copy of each [nutrient management

plan] summary for 3 years in a manner that protects the identity of the individual for

whom the nutrient management plan was prepared.”3 Petitioners do not dispute that

2 Petitioners are international and local advocacy organizations dedicated to protecting water quality. 3 Nutrient management plans manage the application of animal wastes and other fertilizers to prevent nutrient pollution from agricultural land. See Agric. § 8-

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Agric. § 8-801.1(b)(2) creates an exemption to disclosure under the PIA that covers

identifying information on nutrient management plan summaries. See Md. Code Ann.

State Gov’t § 10-615 (instructing the custodian to deny the inspection of a public record,

or a portion thereof, if the inspection would be contrary to a state statute). Petitioners do,

however, dispute a construction of this provision that applies the exemption to

information contained in nutrient management plan summaries maintained beyond three

years and any other documents related to nutrient management plans maintained for any

period of time.

The Circuit Court for Anne Arundel County issued two orders interpreting the

exemption to disclosure provided by Agric. § 8-801.1(b)(2).4 Those orders extended the

scope of the exemption beyond the plain language of Agric. § 8-801.1(b)(2) to include

the following information, in addition to identifying information on nutrient management

plan summaries maintained by MDA for three years or less: 1) identifying information on

nutrient management plan summaries maintained beyond three years; and 2) any nutrient

management plan information on any related documents. The circuit court ordered MDA

to protect this additional information to the extent that it would allow for the

801(defining nutrient management plans). Agricultural operations that are required to have and comply with a nutrient management plan must submit a summary of that plan to MDA each year. See Agric. § 8-801.1(b)(1); see also COMAR 15.20.07.06A(3). Nutrient management plan summaries exist in two forms: 1) an operator’s initial nutrient management plan summary, which includes, inter alia, a description of the operation, a summary indicating all nutrient recommendations, and soil analyses; or 2) an operator’s annual implementation report, which includes, inter alia, any changes to the initial submission, the total acreage managed under the plan by crop, and the total nutrients applied by crop. See COMAR 15.20.07.06A(2), (3). 4 The judgment of the circuit court adjudicated all claims in this action in their entirety.

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identification of an individual for whom a specific nutrient management plan was

prepared with respect to those summaries maintained for three years or less.

Appellants raised the following issue on appeal: Did the circuit court err when it

interpreted Agric. § 8-801.1(b)(2) to include all documents related to nutrient

management plans when the statute expressly applies only to nutrient management plan

summaries maintained by MDA for three years or less? Appellants argued that the clear

and unambiguous language of Agric. § 8-801.1(b)(2) only exempts identifying

information on nutrient management plan summaries maintained for three years or less

from disclosure under the PIA.

On May 2, 2013, the Court of Special Appeals issued an opinion affirming the

circuit court’s interpretation of Agric. § 8-801.1(b)(2).5 In doing so, the Court of Special

Appeals deferred to MDA’s expansive reading of Agric. § 8-801.1(b)(2), as reflected in

its implementing regulation, which encompasses all nutrient management records. See

App. 4 at 25. The Court of Special Appeals also determined that the three year time

5 The Court of Special Appeals’ opinion includes a lengthy discussion of the federal and state regulatory framework governing National Pollutant Discharge Elimination System (“NPDES”) permits for concentrated animal feeding operations (“CAFOs”) and Maryland animal feeding operations (“MAFOs”) administered by the federal Environmental Protection Agency (“EPA”) and the Maryland Department of the Environment (“MDE”). See App. 4 at 4–10. The Court of Special Appeals often refers to the issue presented as one involving the “general permit applicant’s identity.” See App. 4 at 18. As a point of clarification for this Court, Maryland’s WQIA, which contains the exemption to disclosure at issue in this case, is distinct from the state’s NPDES permitting scheme for CAFOs and MAFOs. The WQIA established the state’s nutrient management program, which is administered by MDA. See generally, Agric. §§ 8-801–807. Pursuant to the WQIA, all agricultural operations that gross at least $2,500 – including crop farms with no livestock – or those that have at least 8,000 pounds of large animal weight must have and comply with a nutrient management plan. Agric. § 8-803.1.

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period in Agric. § 8-801.1(b)(2) did not limit the exemption to disclosure for the plan

holder’s identity. See App. 4 at 32. Therefore, the Court of Special Appeals ultimately

concluded that MDA must withhold identifying information from all nutrient

management records regardless of the year. See App. 4 at 42. The Court of Special

Appeals issued its mandate on June 3, 2013.

REASONS FOR GRANTING THE WRIT

I. The Court of Special Appeals failed to interpret Agric. § 8-801.1(b)(2), an

exemption to disclosure under the Maryland Public Information Act,

narrowly and in favor of disclosure.

The Court of Special Appeals erred by broadly interpreting Agric. § 8-801.1(b)(2)

to require that MDA withhold information in documents clearly beyond the scope of the

exemption to disclosure provided by that section. As this Court recently reiterated in

Maryland Department of State Police v. Maryland State Conference of NAACP

Branches, “the well-established general principles governing the interpretation and

application of the [PIA] create a public policy and a general presumption in favor of

disclosure of government or public documents.” 430 Md. 179, 190, 59 A.3d 1037, 1043

(2013) (internal quotations omitted). In furtherance of that presumption, exemptions to

disclosure under the PIA are to be construed narrowly and in favor of full disclosure.

Office of Governor v. Wash. Post Co., 360 Md. 520, 545, 759 A.2d 249, 263 (2000)

(quoting Fioretti v. Md. State Bd. Of Dental Exam’rs, 351 Md. 66, 77, 716 A.2d 258, 264

(1998)). “[T]he PIA’s preference for disclosure mitigates against any interpretation that

would expand the scope of an enumerated exception to the Act.” Haigley v. Dep’t of

Health and Mental Hygiene, 128 Md. App. 194, 226, 736 A.2d 1185, 1201 (1999).

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Agric. § 8-801.1(b)(2) states that MDA “shall maintain a copy of each [nutrient

management plan] summary for 3 years in a manner that protects the identity of the

individual for whom the nutrient management plan was prepared.” Reading that

provision narrowly, it applies only to nutrient management plan summaries maintained

by MDA for three years or less. Furthermore, Agric. § 8-801.1(b)(2) only restricts public

access to information in those summaries that would identify the plan holder. The circuit

court and Court of Special Appeals, however, held that Agric. § 8-801.1(b)(2) requires

MDA to withhold information from any documents related to nutrient management plans,

maintained for any length of time, if that information could allow someone to determine

the identity of an individual for whom a specific plan maintained for three years or less

was prepared. App. 4 at 40–41. That expansive reading contravenes the directive in the

PIA and the opinions of this Court requiring narrow interpretations of exemptions to

disclosure.

This Court has repeatedly rejected attempts to expand exemptions for specific

documents or information to prevent the disclosure of other documents or information.

In Maryland Department of State Police, this Court declined to broadly read the PIA

exemption for personnel records to deny public disclosure of racial profiling complaints

against State Troopers. 430 Md. at 194–96, 59 A.3d at 1046–47. In Office of Governor,

this Court determined that exemptions for letters of reference, personnel records, and

commercial information did not protect the Governor’s phone records from disclosure.

360 Md. at 548, 759 A.2d at 264. In Kirwan v. The Diamondback, this Court determined

that parking tickets issued to University of Maryland coaches and student athletes were

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not personnel records or financial information exempt from disclosure under the PIA.

352 Md. 74, 84, 87, 721 A.2d 196, 200–02 (1998). These cases, which deal with

exemptions to disclosure far less specific than that provided by Agric. § 8-801.1(b)(2),

illustrate how narrowly this Court has instructed other Maryland courts to construe

exemptions to the PIA.

Agric. § 8-801.1(b)(2) directs MDA to protect identifying information in nutrient

management plan summaries maintained for three years or less. Reading that provision

narrowly, it is clear that MDA has no authority to withhold information in any other types

of documents, or to withhold identifying information in summaries maintained by the

agency beyond the three year period expressly provided by Agric. § 8-801.1(b)(2).

Therefore, the circuit court and Court of Special Appeals erred by failing to narrowly

construe the exemption to disclosure provided by Agric. § 8-801.1(b)(2), as required by

the PIA and the prior opinions of this Court.

II. The Court of Special Appeals failed to properly apply rules of statutory

construction when interpreting Agric. § 8-801.1(b)(2).

The Court of Special Appeals erred when it interpreted Agric. § 8-801.1(b)(2) to

apply to documents and information not expressly contemplated by the plain language of

the statute. In addition, the Court of Special Appeals improperly continued its inquiry

into legislative intent to contradict, rather than confirm, the unambiguous statutory

language of Agric. § 8-801.1(b)(2) and attempted to harmonize that provision with a

distinct statute that addresses a different subject altogether.

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a) The Court of Special Appeals erred when it affirmed the circuit court’s order

interpreting Agric. § 8-801.1(b)(2) to reach all nutrient management records

regardless of how long they are maintained by MDA.

It is well-established in Maryland that “[t]he cardinal rule of statutory

interpretation is to ascertain and effectuate the intent of the Legislature.” Bowen v. City

of Annapolis, 402 Md. 587, 613–14, 937 A.2d 242 257–58 (2007) (quoting Kushnell v.

Dep’t of Natural Res., 385 Md. 563, 576–78, 870 A.2d 186, 193–94 (2005)). Moreover,

“[i]f statutory language is unambiguous when construed according to its ordinary and

everyday meaning, then [courts] give effect to the statute as written.” Id. at 614, A.2d at

258 (quoting Kushnell, 385 Md. at 576–78, 870 A.2d at 193–94). In the absence of

ambiguity, courts do not inquire further into legislative intent, “for the Legislature is

presumed to have meant what it said and said what it meant.” Id.

Agric. § 8-801.1(b)(2) unambiguously provides an exemption to disclosure

applicable to one set of documents—nutrient management plan summaries maintained by

MDA for three years or less. In addition, the exemption clearly only covers certain

information contained in those summaries, namely information that would identify the

plan holder. Giving effect to the statute as written, Agric. § 8-801.1(b)(2) provides a

limited exemption to disclosure for information that would identify the plan holder

contained in nutrient management plan summaries maintained by MDA for three years or

less. The plain language of Agric. § 8-801.1(b)(2) does not contemplate any information

contained in any other documents, including nutrient management plan summaries

maintained by MDA beyond three years. Id. Therefore, the circuit court and the Court of

9

Special Appeals improperly departed from the unambiguous language of Agric. § 8-

801.1(b)(2) by applying the exemption to disclosure to information contained in all

nutrient management records regardless of how long those records are maintained by

MDA. See App. 4 at 40–42.

b) The Court of Special Appeals erred when it inquired beyond, and reached

conclusions that contradicted, the unambiguous language of Agric. § 8-

801.1(b)(2).

The Court of Special Appeals departed from precedent when it inquired into the

legislative history and other sources of legislative intent as a means to circumvent the

unambiguous language of Agric. § 8-801.1(b)(2). In Mayor and City Council of

Baltimore v. Chase, this Court articulated a limited exception to the general rule that a

court’s inquiry into legislative intent begins and ends with unambiguous statutory

language:

even when the language of a statute is free from ambiguity, in the interest of completeness we may, and sometimes do, explore the legislative history of the statute under review. We do so, however, to look at the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account. In other words, the resort to legislative history is a confirmatory process; it is not undertaken to contradict the plain meaning of the statute.

360 Md. 121, 131, 756 A.2d 987, 993 (2000) (emphasis added). That exception is

predicated on the well-settled rule that “a court may not as a general rule surmise a

legislative intention contrary to the plain language of a statute or insert exceptions not

made by the legislature.” Id. (quoting Coleman v. State, 281 Md. 538, 546, 380 A.2d 49,

54 (1977); see also Bowen, 402 Md. at 613–14, 937 A.2d at 257–58 (stating that a court

10

“may neither add nor delete language so as to reflect an intent not evidenced in the plain

and unambiguous language of the statute; nor may it construe the statute with forced or

subtle interpretations that limit or extend its application.”) (quoting Kushnell, 385 Md. at

576–78, 870 A.2d at 193–94).

The Court of Special Appeals improperly applied the “in the interest of

completeness” exception to contradict, rather than confirm, the unambiguous language of

Agric. § 8-801.1(b)(2).”6 Agric. § 8-801.1(b)(2) expressly applies only to nutrient

management plan summaries maintained by MDA for three years or less. See id. (stating

that MDA “shall maintain a copy of each [nutrient management plan] summary for 3

years in a manner that protects the identity of the individual for whom the plan was

prepared.”) (emphasis added). In contrast, the Court of Special Appeals’ concluded that

Agric. § 8-801.1(b)(2) applied to all nutrient management records, see App. 4 at 24,

regardless of how long MDA has maintained them. See App. 4 at 32, 42. To reach its

conclusion, the Court of Special Appeals ventured beyond the unambiguous statutory

language and considered extraneous legislative history, an expansive MDA regulation, an

unrelated Maryland statute, and irrelevant out-of-state and federal decisions.

By extending its inquiry beyond the unambiguous statutory language of Agric. §

8-801.1(b)(2) to reach a contradictory result, the Court of Special Appeals disregarded

the way in which Maryland courts have interpreted and applied the “in the interest of

6 By invoking the “in the interest of completeness” exception in its analysis of § 8-801.1(b)(2), the Court of Special Appeals strongly implied that it considered the statutory language unambiguous. See App. 4 at 22, 26. The circuit court expressly found the language of § 8-801.1(b)(2), to be “clear and unambiguous.” See App. 2, Mem. Op. at 5.

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completeness” exception for over a decade. See e.g., Mayor and City Council of Balt.,

360 Md. at 131, 756 A.2d at 993; see also Whitely v. Md. State Bd. of Elections, 429 Md.

132, 155, 55 A.3d 37, 51 (2012). As such, the reported opinion in this case sets a

dangerous precedent of circumventing the plain meaning of an unambiguous statute

under the pretense of an interest in completeness.

c) The Court of Special Appeals erred when it attempted to harmonize Agric. § 8-

801.1(b)(2) with a statute addressing different subject matter.

The Court of Special Appeals further erred in attempting to harmonize the time

limitation in Agric. § 8-801.1(b)(2) with the lack of a time limitation in Agric. § 8-306, as

the two statutes relate to different subject matter. This Court has often stated that

[w]here the statute to be construed is part of a statutory scheme, the legislative intention is not determined from that statute alone, rather it is to be discerned by considering it in light of the statutory scheme. When, in that scheme, two statutes, enacted at different times and not referring to each other address the same subject, they must be read together, i.e., interpreted with reference to one another, and harmonized, to the extent possible, both with each other and with other provisions of the statutory scheme.

Mayor and City Council of Balt., 360 Md. at 129, 756 A.2d at 992 (citations omitted)

(emphasis added).

Agric. §§ 8-801.1(b)(2) and 8-306 do not address the same subject matter;

therefore, the Court of Special Appeals did not need to harmonize the two

provisions. Agric. § 8-801.1 generally describes the factors considered in developing

nutrient management plans and the requirements for filing plan summaries with

MDA. Agric. § 8-801.1(b)(2) specifically instructs MDA to protect certain information

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in nutrient management plan summaries for three years. In contrast, Agric. § 8-306

generally describes the authority given to soil conservation district supervisors, and

Agric. § 8-306(b) specifically instructs the supervisors of soil conservation districts to

protect certain information in soil conservation and water quality plans with no time

limitation. To the extent supervisors make information from soil conservation and water

quality plans available to MDA for statistical purposes, Agric. § 8-306(b)(2) instructs

MDA to protect that information in the same manner. In short, Agric. § 8-801.1(b)(2)

protects information on one type of document for a specific period of time while Agric. §

8-306(b) protects information on a different type of document indefinitely. Compare

Agric. § 8-801.1(b)(2) (protecting the identity of the individual for whom the nutrient

management plan was prepared), with Agric. § 8-306 (protecting the identity of the

individual for whom the soil conservation and water quality plan was prepared)

(emphasis added). Therefore, Agric. §§ 8-801.1(b)(2) and 8-306(b) are not inconsistent

as written and the Court of Special Appeals erred in attempting to harmonize the two

provisions.

Even if it were proper for the Court of Special Appeals to harmonize the statutes,

the Court’s analysis rendered the “for 3 years” clause inconsequential in the context of

Agric. § 8-801.1(b)(2). In harmonizing two provisions of a statutory scheme, “[n]either

statute should be read…so as to render the other, or any portion of it, meaningless,

surplusage, superfluous or nugatory.” Mayor and City Council of Balt., 360 Md. at 129,

756 A.2d at 992 (citations omitted). The Court of Special Appeals’ comparative analysis

of Agric. §§ 8-801.1(b)(2) and 8-306 led it to conclude that the three year time period in

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the former was not related to protecting identifying information. That interpretation

flatly contradicts the plain language Agric. § 8-801.1(b)(2) and gives the three year time

period no effect in the statute.7 Agric. § 8-801.1(b)(2) states that MDA must maintain

nutrient management plan summaries “for 3 years in a manner that protects the identity of

the individual for whom the nutrient management plan was prepared.” Pursuant to the

Court of Special Appeals’ interpretation, however, MDA must continue to withhold

information on nutrient management plan summaries maintained beyond three years.

Therefore, the Court of Special Appeals effectively disregarded the “for 3 years” clause

and rendered it meaningless in the context of Agric. § 8-801.1(b)(2).

III. The Court of Special Appeals improperly deferred to the Maryland

Department of Agriculture’s expansive interpretation of Agric.§ 8-

801.1(b)(2).

The Court of Special Appeals erred in deferring to MDA’s interpretation of Agric.

§ 8-801.1(b)(2), as the agency’s interpretation greatly expands the scope of the exemption

to disclosure provided by the language of that section. An administrative agency’s

interpretation of a statute it administers does not receive deference when that

7 The Court of Special Appeals “deduced” that the three year time period in § 8-801.1(b)(2) “regard[s] the recommendation of soil testing.” See App. 4 at 32. That interpretation is not contemplated by the plain language of Agric. § 8-801.1(b)(2) and has no effect on the manner or length of time that MDA maintains nutrient management plan summaries. MDA is not permitted to simply discard nutrient management plan summaries after three years based on soil testing, or for any other reason. While the circuit court expressly found that “the clear language of the statute indicates that the privacy interest only lasts for three years,” it also recognized that “even if the language in [ ] Agric. § 8-801.1(b)(2) was ambiguous, there would be no reason for the legislature to provide a 3 year requirement limited only to the actual maintenance of the Nutrient Management Plan Summaries since MDA is already subject to requirements governing the archiving of documents that it receives.” See App. 2, Mem. Op. at 6.

14

interpretation is inconsistent with the plain language of the statute. See Marriott Emp.

Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 446, 697 A.2d 455, 459 (1997)

(“An administrative agency’s construction of the statute [it administers] is not entitled to

deference…when it conflicts with the unambiguous statutory language.”) (citing Falik v.

Prince George’s Hosp. and Med. Ctr., 322 Md. 409, 416, 588 A.2d 324, 327 (1991)).

Moreover, an agency’s interpretation of an unambiguous statute “cannot override the

plain meaning of the statute or extend its provisions beyond the clear import of the

language employed.” Falik, 322 Md. at 416, 588 A.2d at 327 (internal citations and

quotation omitted)). Agric. § 8-801.1(b)(2) clearly and unequivocally applies only to

nutrient management plan summaries. MDA’s interpretation, as evidenced by its

implementing regulation, however, extends the scope of Agric. § 8-801.1(b)(2) to all

nutrient management plan information submitted to the agency. See App. 4 at 25;

COMAR 15.20.07.06A(4).

Moreover, MDA’s regulation does not fall within its rulemaking authority, as it

contradicts the plain language of Agric. § 8-801.1(b)(2). While “[a]dministrative

agencies have broad authority to promulgate regulations…the exercise of that authority,

granted by the Legislature, must be consistent, and not in conflict, with the statute the

regulations are intended to implement.” Dep’t of Human Res., Balt. City Dep’t of Soc.

Servs. v. Hayward, 426 Md. 638, 658, 45 A.3d 224, 236 (2012) (citation omitted). When

a regulation conflicts with the statute it is intended to implement, this Court has

“consistently held that the statute must control.” Id. (citation omitted). Specifically with

regard to the PIA, “[t]he deference [a court] would ordinarily accord to the agency’s

15

interpretation of its own regulations is tempered by our obligation to safeguard the

objectives of the PIA, which instructs us to construe its provisions ‘in favor of permitting

inspection of a public record.’” Haigley, 128 Md. App. at 213–14, 736 A.2d at 1195

(citing Md. Code Ann., State Gov’t § 10-612(b)). The Court of Special Appeals erred to

the extent that it relied on MDA’s expansive regulation protecting all nutrient

management plan information, as it conflicts with the plain language of Agric. § 8-

801.1(b)(2) and the objectives of the PIA.

Unlike a state statute, a state regulation is not a source of law that justifies a denial

of inspection of a public record under the PIA. See State Gov’t § 10-615 (enumerating

required exemptions to disclosure, including state statutes but not state regulations).

Moreover, regulations promulgated by an agency must be within the scope of the statute

being administered. See Md. State Police v. Warwick Supply & Equip. Co., Inc., 330 Md.

474, 481, 624 A.2d 1238, 1241 (1993) (stating that “[l]egislation may not be enacted by

an administrative agency under the guise of its exercise of the power to make rules and

regulations by issuing a rule or regulation which is inconsistent or out of harmony with,

or which alters, adds to, extends, enlarges, impairs, limits, or restricts the act being

administered.”) (internal citations and quotations omitted). In this case, however, the

Court of Special Appeals deferred to MDA’s improper effort to expand the scope of the

exemption provided by Agric. § 8-801.1(b)(2) through rulemaking.

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that this Court grant a

petition for a writ of certiorari to review the judgment of the Court of Special Appeals in

16

Waterkeeper Alliance, Inc. et al. v. Maryland Department of Agriculture et al., Md. Ct.

Spec. App. Sept. Term 2011 No. 01289.

Respectfully Submitted,

__________________________ Leah M. A. Kelly Environmental Integrity Project One Thomas Circle, Suite 900 Washington, DC 20005 (202) 296-4448

Counsel for Petitioners

17

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of June 2013, a copy of the foregoing was sent via first class mail to:

Adam Snyder Assistant Attorney General 200 St. Paul Place 20th Floor Baltimore, Maryland 21201 Craig A Nielson Thomas F. Filbert Assistant Attorneys General Maryland Department of Agriculture 50 Harry S. Truman Boulevard Annapolis, Maryland 21401 Counsel for Respondent Maryland Department of Agriculture

Margaret M. Witherup, Esq. Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC The Garrett Building 233 East Redwood Street Baltimore, Maryland 21202 Counsel for Respondent Maryland Farm Bureau, Inc.

______________________________

Leah M. A. Kelly Environmental Integrity Project

1 Thomas Circle, Suite 900 Washington, DC 20005 (202) 263-4448 Counsel for Petitioners

Appendix 1

Appendix 2

c c

* IN THE

MARYLAND FARM BUREAU INC., ET AL

* CIRCUIT COURT

Plaintiffs

* FOR

v.

* ANNE ARUNDELCOUNTY

MARYLAND DEPARTMENT OF

AGRICULTURE

* CASE NO.: C-08-134331

Defendants************

ORDER

For the reasons stated in the Court's Memorandum Opinion, it is this |(_) day of

February, 2009, by the Circuit Court ofAnne Arundel County, Maryland,

S ORDERED, that the Maryland Department of Agricultures Cross Motion for

m " Summary Judgment is GRANTED; and it is furtherCD

-£> '. ORDERED, that the Plaintiffs'Motion for Summary Judgment is DENIED; and

"C .^ !••• it is further

o

-o DECLARED, that the Maryland Department of Agriculture must disclose

Nutrient Management Plan Summaries that have been maintained by the Department of

Agriculture for 3 years or less pursuant to the Public Information Act with the limitation

that the Maryland Department of Agriculture must redact any and all information from

the Nutrient Management Plan Summaries that may allow for the identification of the

individual for whom the nutrient management plan was prepared; and it is further

DECLARED, that the Maryland Department of Agriculture must disclose

Nutrient Management Plan Summaries that have been maintained by the Department of

Agriculture for more than three years without any redaction of identifying information

unless failure to redact identifying information from Nutrient Management Plan

' c

Summaries that have been held for more than three years would allow for the

identification of the individual for whom the Nutrient Management Plan was prepared

with respect to those Nutrient Management Plan Summaries that have been maintained

by the Maryland Department of Agriculture for three years or less; and it is further

DECLARED, that the Maryland Department of Agriculture must redact any

information from any documents subject to disclosure under the Public Information Act

that are related to Nutrient Management Plans if such information would allow for the

identification of the individual for whom the Nutrient Management Plan was prepared

with respect to those Nutrient Management Plan Summaries that have been maintained

by the Maryland Department of Agriculture for three years or less.

\

c c

* IN THE

MARYLAND FARM BUREAU INC., ET AL

* CIRCUIT COURT

Plaintiffs

* FOR

v.

* ANNE ARUNDELCOUNTY

MARYLAND DEPARTMENT OF

AGRICULTURE

* CASE NO.: C-08-134331

Defendants************

MEMORANDUM OPINION

This case was called in open court on December 8, 2008 for a hearing on

Plaintiffs and Defendant's Cross Motions for Summary Judgment. The Court having

heard oral argument and having fully reviewed and considered all matters related to the

=» Cross Motions for Summary Judgment, the Court issues the following opinion.

§ BACKGROUND

-° On February 4,2008, the Waterkeeper Alliance (hereinafter Waterkeeper) filed a

en Complaint in Circuit Court seeking the Nutrient Management Plan Summaries for

° farming operations in the Maryland from the Maryland Department of Agriculture

(hereinafter "MDA") pursuant to the Public Information Act. Subsequent to Waterkeeper

filing its Complaint, Waterkeeper and the MDA were able to reach an agreement

regarding the disclosure of the Nutrient Management Plan Summaries requested by

Waterkeeper. MDA agreed that it would release unredacted Nutrient Management Plan

information greater than 3 years old and redacted Nutrient Management Plan information

less than 3 years old.

c c

After Waterkeeper and MDA had reached an agreement, the Maryland Farm

Bureau (hereinafter "MFB") entered into discussions with the MDA concerning its plans

to release NMP information to Waterkeeper. Unable to reach an agreement, MFB and

three unidentified farmers filed an action for declaratory and injunctive relief against the

MDA. Specifically the MFB and unidentified farmers are seeking a declaration that AG §

8-801.1 requires the MDA to keep all identifying information contained in the Nutrient

Management Plan Summaries confidential beyond the 3 year period in which they must

keep records of the Nutrient Management Plan Summaries themselves, and an injunction

preventing the MDA from releasing the Nutrient Management Plan Summaries to

Waterkeeper.

MDA and the MFB have both subsequently filed Cross Motions for Summary

Judgment seeking a declaration of the correct interpretation ofAG § 8-801.1.

STANDARD OF REVIEW

The standard governing a motion for summary judgment is codified at Md. Rule

2-501. Pursuant to the rule, the court may grant summary judgment if there is no genuine

dispute of material fact and the movant is entitled to judgment as a matter of law. The

function of a summary judgment proceeding is not to try the case nor attempt to resolve

factual issues, but to determine whether there is a dispute as to a material fact sufficient

to provide an issue to be tried. Coffey v. Derby Steel Co., 291 Md. 241,434 A.2d 564

(1981); Syme v. Marks Rentals Inc., 70 Md. App. 235, 520 A.2d 1110 (1987). The court

does not attempt to decide any issue of fact or credibility, but whether such issues exist.

Wolfe v. Lamar & Wallace, Inc. 261 Md. 174, 274 A.2d 121 (1971).

c c

A material fact must be one the resolution of which will somehow affect the

outcome of the case. Lynx, Inc. v. Ordnance Prods., Inc. 273 Md. 1, 327 A.2d 502

(1974). Mere speculation as to the possible existence of a factual dispute will not defeat

a motion for summary judgment. A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md.

245,634 A.2d 1330 (1994). If the facts are susceptible ofmore than one inference, the

inference must be drawn in the light most favorable to the person, against whom the

motion is made, and in the light least favorable to the movant. Lipscomb v. Hess, 255 Md.

109,257 A.2d 178 (1969).

However, despite the deference to the non-movant, that party "must do

more than simply show there is some metaphysical doubt as to the material facts." Beatty

v. Trailmaster Products, Inc. 330 Md. 726,738,625 A.2d 1005,1011 (Md.,1993), citing

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89

L.Ed.2d 538 (1986). If there is some alleged factual dispute, there must still be evidence

upon which the jury could reasonably find for the plaintiff. Id., citing Anderson v. Liberty

Lobby, Inc., All U.S. 242, 252, 106 S.Ct. 2502, 2512 (1986). Thus, a better "formulation

would be that the party opposing the motion is to be given the benefit of all reasonable

doubts in determining whether a genuine issue exists." Clea v. Mayor and City Council of

Baltimore, 312 Md. at 678, 541 A.2d 1303 (1988), quoting C. Wright, The Law of

Federal Courts § 99, at 666-667 (1983).

This particular case involves the interpretation of Md. Code Ann., Agric. § 8-

801.1(b)(2). It is well established that issues of statutory interpretation are purely legal

questions. Kelly v. Consolidated Delivery Co., 166 Md.App. 178,185, 887 A.2d 682

(2005). Since the parties agree that the facts in this case are not in dispute and the issue

c c

presented is a question of law, the Court finds that Summary Judgment is appropriate in

this case.

DISCUSSION

1. Nutrient Management Plan Summaries that have been maintained by the

MDA for 3 year or less are subject to disclosure under the PIA with the

limitation that all identifying information must be redacted from the plans

prior to disclosure.

The Maryland Agricultural Article provides that a summary ofeach nutrient

management plan shall be filed with the MDA and that the MDA shall "maintain a copy

of each summary for 3 years in a manner that protects the identity of the individual for

whom the nutrient management plan was prepared." Md. Code Ann., Agric. § 8-

801.1(b)(2). The Maryland Public Information Act ("PIA") provides that "[all] persons

are entitled to have access to information about the affairs of government and the official

acts of public officials and employees." Md. Code Ann., State Gov't § 10-612(a). The

PIA's provisions "shall be construed in favor of permitting inspection of a public record."

Md. Code Ann., State Gov't § 10-612(b). Additionally, the PIA states that, "[ejxceptas

otherwise provided by law, a custodian shall permit a person or governmental unit to

inspect any public record at any reasonable time." Md. Code Ann., State Gov't § 10-

6l2(a).

The PIA defines a "public record" as "the original or any copy of any

documentary material that... is made by a unit or instrumentality of State government or

of a political subdivision or received by the unit or instrumentality in connection with the

transaction ofpublic business." Md. Code Ann., State Gov't § 10-61 l(g) (emphasis

added). Nutrient Management Plan are documentary material received by the MDA, a

c c

unit of State Government, in connection with its public business. Accordingly, Nutrient

Management Plan Summaries are "public records" within the meaning of the PIA.

The issue before the Court is thus one of balancing the privacy interest created by

Md. Code Ann., Agric. § 8-801. l(b)(2) and the public's interest in having access to

public records pursuant to the PIA. The PIA, while generally providing for broad

disclosure, does provide exceptions for when public records are exempt from public

access. The first and most pertinent exception for the purposes of this case is found in

Md. Code Ann., State Gov't § 10-615 which provides in pertinent part that inspection

will be denied if "the inspection would be contrary to a state statute." Md. Code Ann.,

State Gov't § 10-615(2). In this case the state statute at issue is Md. Code Ann., Agric. §

8-801.1 (b)(2).

The rules of statutory interpretation are well established in Maryland. The Court

of Appeals has long held that "the cardinal rule of statutory interpretation is to ascertain

and effectuate the intention of the legislature." Holbrook v. State, 364 Md. 354, 364, 772

A.2d 1240 (2001) (quoting IN re Anthony R., 362 Md. 51,57, 763 A.2d 136 (2000). "If

the statutory language in question is unambiguous when construed according to its

ordinary and everyday meaning, this Court 'will give effect to the statute as written.'"

Kelly v. Consolidated Delivery Co., 166 Md.App. 178, 185-86, 887 A.2d 682 (2005)

(quoting Pak v. Hoang, 378 Md. 315, 323, 835 A.2d 1185 (2003).

Initially, the Court finds that the language at issue in Md. Code Ann., Agric. § 8-

801.1(b)(2) is clear and unambiguous. Accordingly, pursuant to the rule as reiterated in

Kelly, the Court must give effect to the statute as written. Although the Court agrees that

the statute provides for the protection of the identity of the individual for whom the

c c

nutrient management plan was prepared, the Court finds, based on the unambiguous

language of the statute, that the protection is limited to three years, subject to one

exception to be discussed in the following section. Moreover, since the Court finds that

the first exception clearly applies, the Court declines to address whether the second or

third exception may or may not be applicable.

Accordingly, the MDA is required to redact any and all information from the

Nutrient Management Plan Summaries, which have been maintained by the MDA for

three years or less, that may allow for the identification of the individual for whom the

nutrient management plan was prepared.

2. Nutrient Management Plan Summaries that have been maintained by the

MDA for more than 3 years are subject to disclosure under the PIA with

the limitation that identifying information must be redacted if the

^identifying information would indicate the identity of a plan holder for a

Nutrient Management Plan that has been maintained for less than 3 years.

Plaintiffs argued that the privacy interest created by Md. Code Ann., Agric. § 8

801.1(b)(2) is not limited to three years, but rather the reference to three years is only

meant to indicate how long the MDA must maintain the plans. As has been previously

indicated above, the Court finds that the clear language of the statute indicates that the

privacy interest only lasts for three years. Furthermore, even if the language in Md. Code

Ann., Agric. § 8-801. l(b)(2) was ambiguous, there would be no reason for the legislature

to provide a 3 year requirement limited only to the actual maintenance of the Nutrient

Management Plan Summaries since the MDA is already subject to requirements

governing the archiving of documents that it receives.

Accordingly, the Court finds that the MDA is not required to disclose Nutrient

Management Plan Summaries, which have been maintained for over three years, without

c c

any redactions subject to one exception. If the disclosure of identifying information in a

Nutrient Management Plan Summary which has been held for more than three years

would indicate the identity of the individual for whom the Nutrient Management Plan

was prepared with respect to those Nutrient Management Plan Summaries that have been

maintained by the MDA for three years or less, the MDA must redact identifying

information from the Nutrient Management Plan Summary that has been maintained for

more than three years. Any contrary holding by the Court would render meaningless the

protection that is to be provided pursuant to Md. Code Ann., Agric. § 8-801 .l(b)(2).

3. Any public record related to Nutrient Management Plans that is subject

to disclosure that would provide for the identification of the holder of a

Nutrient Management Plan Summary that has been maintained by the

MDA for three years or less, must be redacted in order to provide

meaningful protection to the individuals form whom the Nutrient

Management Plans were developed.

It has been noted in the MDA's Memorandum in Support of Defendant's Cross

Motion for Summary Judgment, that other documents relating to Nutrient Management

Plan Summaries, such as Annual Inspection Reports, are maintained by the MDA.

Furthermore, these documents may contain information that would allow for the

identification of the individual for whom a Nutrient Management Plan was created.

To the extent that such documents are disclosed, the MDA is required to redact any and

all information contained in such documents that could lead to the identification of the

individual for whom the Nutrient Management Plan was prepared with respect to those

Nutrient Management Plan Summaries that have been maintained by the MDA for three

years or less. Any contrary holding by the Court would render meaningless the protection

that is to be provided pursuant to Md. Code Ann., Agric. § 8-801.1(b)(2).

c c

CONCLUSION

For the reasons described herein, the Court shall enter the Order attached hereto.

Judge\KflIidsi CJviultbrd, II

leric

-

Appendix 3

Appendix 4

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1289

September Term, 2011

WATERKEEPER ALLIANCE, INC., ET AL.

V.

MARYLAND DEPARTMENT OFAGRICULTURE, ET AL.

Krauser, CJGraeff,Hotten

JJ.1

Opinion by Hotten, J.

Filed: May 2, 2013

1 Judge Alexander Wright, Jr. did not participatein the Court’s decision to designate this opinionfor publication in the Maryland Appellate Reportspursuant to Maryland Rule 8-605.1

1 An NMP is “a plan prepared . . . by a certified nutrient management consultant tomanage the amount, placement, timing, and application of animal waste, commercialfertilizer, sludge, or other plant nutrients to prevent pollution by transport of bioavailablenutrients and to maintain productivity.” Md. Code (1974, 2007 Repl. Vol., 2012 Supp.), § 8-801(c) of the Agriculture Article.

2 Md. Code (1974, 2007 Repl. Vol.), § 8-801.1(b)(2) of the Agriculture Articleprovides:

(b) Filing with [the MDA]. – (1) A summary of each nutrient management planshall be filed and updated with the [MDA] at a time and in a form that the[MDA] requires by regulation.

(2) The [MDA] shall maintain a copy of each summary for 3 years ina manner that protects the identity of the individual for whom the nutrientmanagement plan was prepared.

This appeal concerns the Maryland Department of Agriculture’s (“MDA”) decision

to exempt nutrient management plans (“NMPs”)1 from public disclosure in response to a

Public Information Act request. An NMP “indicates how essential primary nutrients, that

is, nitrogen, phosphorus, and potassium, are to be annually managed on farm fields for crop

production and for the protection of water quality.” COMAR 15.20.04.01 (2000). As

discussed further, infra, the General Assembly promulgated a law governing the preparation

and filing of NMPs and plan summaries. This law provides that “[t]he [MDA] shall maintain

a copy of each [NMP] summary for 3 years in a manner that protects the identity of the

individual for whom the [NMP] was prepared.” Md. Code (1974, 2007 Repl. Vol.), § 8-

801.1(b)(2) of the Agriculture Article2 [hereinafter “Agric. § 8-801.1(b)(2)”].

Appellants, Waterkeeper Alliance, Inc. (“Waterkeeper Alliance”), Assateague

Coastkeeper, Baltimore Harbor Waterkeeper, Inc., Lower Susquehanna Riverkeeper,

Patuxent Riverkeeper, Potomac Riverkeeper, Inc., Severn Riverkeeper, South Riverkeeper,

3 According to the complaint, Waterkeeper Alliance “is an international non[-]profitconservation and advocacy organization incorporated in New York . . . that connects andsupports 172 local Waterkeeper programs, including 11 programs with watersheds in theState of Maryland, . . . [and it] has interest in ensuring citizen access to information and inprotecting and improving the water quality of Maryland’s waters and ensuring the health ofMaryland’s communities.” The remaining appellants are member programs of WaterkeeperAlliance.

4 State Gov’t § 10-613(a) provides:

(a) In general. – (1) Except as otherwise provided by law, a custodian shallpermit a person or governmental unit to inspect any public record at anyreasonable time.

5 Pursuant to State Gov’t § 10-623(a), “[w]henever a person or governmental unit isdenied inspection of a public record, the person or governmental unit may file a complaintwith the circuit court for the county where: (1) the complainant resides or has a principalplace of business; or (2) the public record is located.”

6 “An AFO is defined as a lot or facility where (1) animals (other than aquaticanimals) have been, are, or will be stabled or confined and fed or maintained for a total of45 days or more in any 12-month period, and (2) crops, forage, or post-harvest residues arenot sustained in the normal growing season over any portion of the lot or facility.”Assateague Coastkeeper et al. v. Maryland Dep’t of the Environment, 200 Md. App. 665,

(continued...)

2

and West/Rhode Riverkeeper, Inc.,3 filed a complaint, pursuant to the Public Information

Act, specifically Md. Code (1984, 2009 Repl. Vol., 2012 Supp.), § 10-613(a) of the State

Government Article [hereinafter “State Gov’t § 10-613(a)”],4 in the Circuit Court for Anne

Arundel County against appellees, the MDA, the Secretary of Agriculture, Roger

Richardson, the Assistant Secretary, Royden Powell, and the Chief of the Office of Resource

Conservation, Louise Lawrence, alleging that the MDA improperly denied them evaluation

of NMPs5 for the Nest Egg Farm in Princess Anne, Maryland, and for Animal Feeding

Operations (“AFOs”)6 that were located in the Chesapeake Bay watershed.7

6(...continued)668, n.1 (2011), cert. denied 424 Md. 291 (2012) [hereinafter “Assateague Coastkeeper”](internal quotations omitted).

7 “A watershed is the area of land where all of the water that is under it or drains offof it goes into the same place.” Water: Watersheds, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, Mar. 6, 2012, http://water.epa.gov/type/watersheds/whatis.cfm (lastvisited Apr. 11, 2013).

8 “Unless prohibited by law, the custodian should notify any person who could beadversely affected by disclosure of a record that at a request for inspection or copying of therecord has been made . . . .” COMAR 15.01.04.08 (1988).

3

After being notified of a possible disclosure,8 appellee, the Maryland Farm Bureau,

Inc. (“Farm Bureau”) filed a motion for summary judgment, averring that Agric. § 8-

801.1(b)(2) required that the MDA maintain all NMPs in a manner that protected its

members’ identities beyond three years. Thereafter, the MDA filed a cross-motion for

summary judgment. The circuit court granted the MDA’s cross motion for summary

judgment, but denied the Farm Bureau’s motion for summary judgment. The court ordered

that the MDA disclose NMP summaries that were older than three years “without any

redaction of identifying information unless failure to redact identifying information from

[NMP] [s]ummaries . . . would allow for the identification of the individual for whom the

[NMP] was prepared.”

Subsequently, the Farm Bureau filed a motion for clarification to which the court

further ordered that the MDA “redact any plan information that could be used to create a

linkage between a specific individual and a specific [NMP],” and redact “entries for name,

address, signature, and unique identification number.” Appellants, the Waterkeepers, noted

9 Appellants referred to Agric. § 8-801.1(b)(2) as “the Statute” throughout their brief.However, for purposes of this opinion, we do not refer to it as such, as we discuss severalstatutes.

10 The Clean Water Act is the primary legislation, which empowers the U.S.Environmental Protection Agency (“EPA”) to decrease and control water deterioration anddegradation. Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486,491 (2nd Cir. 2005).

4

an appeal, and present the following question for our consideration:

Did the [c]ircuit [c]ourt err when it interpreted section 8-801.1(b)(2) of theAgriculture Article (“the Statute”)[9] to include any documents related tonutrient management plans (“NMPs”), when the [s]tatute expressly appliesonly to NMP summaries maintained by the Maryland Department ofAgriculture (“MDA”) for three years or less?

For the reasons that follow, we shall affirm the judgment of the circuit court.

STATUTORY BACKGROUND

A. Federal Regulatory Framework

In 1948, the United States (“U.S.”) Congress enacted the Federal Water Pollution

Control Act to promote states to safeguard and restore the country’s bodies of water.

National Pork Producers Council v. Environmental Protection Agency, 635 F.3d 738, 742

(5th Cir. 2011) [hereinafter “National Pork”]. In 1972, the Clean Water Act10 replaced the

Federal Water Pollution Control Act, and encompassed a responsibility to conform to the

1972 National Pollutant Discharge Elimination System (“NPDES”) permit program. Id.

Although the Clean Water Act forbids the release of pollutants into U.S. waters, under the

permit program, the EPA may grant permits to individuals and companies to discharge

pollutants, but with significant limitations. Id. at 743.

11 The number of animals that qualify [as] a facility housingpoultry as a Concentrated Animal Feeding Operation (“CAFO”)depends on the type of manure handling system employed. Afacility qualifies as a CAFO with fewer chickens or laying hensif it operates a liquid, as opposed to a dry, manure handlingsystem. 40 C.F.R. § 122.23(b)(4), (b)(6) (2010). For example,an AFO is defined as a Medium CAFO if: (1) it confines 9,000to 29,000 laying hens or broilers and uses a liquid manurehandling system; or (2) it confines 25,000 to 81,999 laying hensor 37,500 to 124,999 chickens (other than laying hens), and ituses other than a liquid manure handling system. Id.[;] § 122.23(b)(6)(i)(I)-(K). An AFO is defined as a Large CAFO if: (1) itconfines 30,000 laying hens or broilers and uses a liquid manurehandling system; or (2) it confines 82,000 laying hens or125,000 chickens (other than laying hens), and it uses other thana liquid manure handling system. Id.[;] § 122.23(b)(4)(ix)-(xi).

Assateague Coastkeeper, 200 Md. App. at 671, n.5.

12 We refer to these 2003 EPA requirements as the “2003 Rule.”

5

In 1976, the EPA required Concentrated Animal Feeding Operations (“CAFOs”)11 to

obtain permits to release pollutants, which was predicated on the amount of animals located

in the facility. Id. However, because of “‘changes that . . . occurred in the animal production

industries,’” Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486,

494 (2nd Cir. 2005) [hereinafter “Waterkeeper Alliance v. EPA”] (additional citation

omitted), the EPA required all CAFOs to “apply for an individual NPDES permit or submit

a notice of intent for coverage under an NPDES general permit” in 2003.12 Id. at 495 (citing

40 C.F.R. § 122.23(d)(1)) (emphasis added). Additionally, all CAFOs were required to

establish and design a site-specified NMP that:

(i) Ensure[d] adequate storage of manure, litter, and process wastewater,

6

including procedures to ensure proper operation and maintenance of thestorage facilities;

(ii) Ensure[d] proper management of mortalities (i.e. dead animals) to ensurethat they [were] not disposed of in a liquid manure, storm water, or processwastewater storage or treatment system that [was] not specifically designed totreat animal mortalities;

(iii) Ensure[d] that clean water [was] diverted, as appropriate, from theproduction area;

(iv) Prevent[ed] direct contact of confined animals with waters of the [U.S.];

(v) Ensure[d] that chemicals and other contaminants handled on-site [were] notdisposed of in any manure, litter, process wastewater, or storm water storageor treatment system unless specifically designed to treat such chemicals andother contaminants;

(vi) Identif[ied] appropriate site specific conservation practices to beimplemented, including as appropriate buffers or equivalent practices, tocontrol runoff of pollutants to waters of the [U.S.];

(vii) Identif[ied] protocols for appropriate testing of manure, litter, processwastewater, and soil;

(viii) Establish[ed] protocols to land apply manure, litter or process wastewaterin accordance with site specific nutrient management practices that ensureappropriate agricultural utilization of the nutrients in the manure, litter orprocess wastewater; and

(ix) Identif[ied] specific records that [would] be maintained to document theimplementation and management of the minimum elements described [above].

Waterkeeper Alliance v. EPA, 399 F.3d at 495-96 (quoting 40 C.F.R. § 122.42(e)(1)(i)-(ix))

(word “above” added in Waterkeeper Alliance v. EPA, 399 F.3d at 496).

In Waterkeeper Alliance v. EPA, 399 F.3d at 502, the U.S. Court of Appeals for the

Second Circuit determined whether the requisites of the NMPs constituted “effluent

13 In Waterkeeper Alliance v. EPA, 399 F.3d at 491, the U.S. Court of Appeals for theSecond Circuit stated, “[r]egardless of the issuer, every NPDES permit [was] statutorilyrequired to set forth, at the very least, “effluent limitations [ ]. . . .”

14 We refer to this proposal as the “2008 Rule.”

7

limitations,” and hence, were required in the NPDES permit.13 The plaintiffs–environmental

organizations contended that the 2003 Rule was unlawful because (1) NPDES personnel

were permitted to issue permits to Large CAFOs without an extensive evaluation of the

NMPs, and (2) the NPDES permits did not include the NMPs’ terms. Id. at 490. The Second

Circuit agreed with the plaintiffs, reasoning that the Clean Water Act described an effluent

limitation as “‘any restriction established by a State or the Administrator on quantities, rates,

and concentrations of chemical, physical, biological, and other constituents which [were]

discharged from point sources . . .,’” id. at 502 (emphasis in orginal), and thus, because “the

requirement to develop a [NMP] constitute[d] a restriction on land application discharges .

. .,” the requisites of the NMP should have been included in the permits. Id.

In accordance with the Second Circuit’s ruling, on June 30, 2006, the EPA proposed

that (1) CAFOs present NMPs with their NPDES permit applications, (2) authorities would

review the plan, and (3) the permit would include the NMP terms. 71:126 Fed. Reg. 37744

(June 30, 2006). On December 4, 2008, the proposal became finalized as a rule.14 National

Pork, 635 F.3d at 747. Farmers opposed the 2008 Rule, and filed complaints in several

federal courts, arguing that the EPA exceeded its authority in requiring all NMPs to submit

15 Land application is the treatment of animal waste from CAFOs that are applied tocultivated lands for fertilizer. National Pork, 635 F.3d at 753, n.39.

16 On October 13, 2012, the EPA announced a proposed rule, in response to NationalPork, regarding the reduction of “the potential impact of the EPA’s CAFO regulations onsmall entities by reducing the universe of CAFOs that must apply for NPDES permits.” Thepublic comment period ended on March 1, 2013. 77:211 Fed. Reg. 65840, 65842 (October31, 2012). See also CAFO Rule History, U.S. EPA, Jan. 3, 2013, http://cfpub.epa.gov/npdes/afo/aforule.cfm (last visited Apr. 11, 2013).

8

procedures regarding land application.15 Id. at 753. The actions were transferred to the U.S.

Court of Appeals for the Fifth Circuit, and joined into one case, National Pork. Id. at 747.

The Fifth Circuit concluded that the farmers’ arguments were time-barred because they

concerned the 2003 Rule, id. at 754, and ultimately, the Court upheld the 2008 Rule.16 Id.

at 756.

B. Maryland Regulatory Framework

The MDA establishes programs regarding “the registration, labeling and application

of commercial fertilizers, organic nutrients, organic wastes, soil conditioners and soil

amendments.” MDA, GUIDELINES FOR APPLICATION OF SOIL CONDITIONERS, SOIL

AMENDMENTS, WASTE MATERIALS OR EFFLUENT ON AGRICULTURAL LAND (SUMMARY OF

EXISTING GUIDELINES) 1 (2012), http://mda.maryland.gov/resource_conservation/counties/

Supp7%20(2).pdf (last visited Apr. 11, 2013). “The Maryland Department of the

Environment . . . develop[s] standards and issues discharge permits for, and oversees the safe

permissible uses of, solid and liquid byproducts, including those with heavy metals, trace

elements, and other pre-application treatment requirements, for various land treatment and

17 Pursuant to Md. Code (1996, 2007 Repl. Vol., 2012 Supp.), §§ 9-101(l) of theEnvironment Article, Maryland waters include:

(1) Both surface and underground waters within the boundaries of this Statesubject to its jurisdiction, including that part of the Atlantic Ocean within theboundaries of this State, the Chesapeake Bay and its tributaries, and all ponds,lakes, rivers, streams, public ditches, tax ditches, and public drainage systemswithin this State, other than those designed and used to collect, convey, ordispose of sanitary sewage; and

(2) The flood plain of free-flowing waters determined by the Department ofNatural Resources on the basis of the 100-year flood frequency.

9

water reuse systems.” Id.

Similar to federal law, Maryland forbids the release of pollutants into its waters,17

unless the Department of the Environment grants a general discharge permit. Assateague

Coastkeeper, 200 Md. App. at 677 (citing Md. Code (1996, 2007 Repl. Vol.), §§ 9-101(l),

9-322, 9-323 of the Environment Article). On September 12, 2008, the Department of the

Environment amended the general permit to encompass two types of AFOs: “CAFOs,

[which] are AFOs that discharge to surface waters, [and] are covered by the [Clean Water

Act] and must obtain a NPDES permit issued by [the Department of the Environment] . . .

[and] . . . [t]he second category, an AFO that qualifies as a CAFO under federal regulations,

but does not discharge or propose to discharge surface water, [which] is classified as a

MAFO [(Maryland Animal Feeding Operation)].” Assateague Coastkeeper, 200 Md. App.

at 678-79 (citing 35:19 Md. Reg. 1735, 1737 (September 12, 2008)); General Discharge

Permit for Animal Feeding Operations, Part I.A1; COMAR 26.08.03.09B(3) (2009); and

COMAR 26.08.03.09B(1)(d). Pursuant to federal law, to obtain a permit, the CAFOs and

18 Dinoflagellate is “[a] plantlike flagellate of the subclass Phytomastigophorea, somespecies of which . . . produce a potent neurotoxin that may cause severe food intoxicationfollowing ingestion of parasitized shellfish.” STEDMAN’S MEDICAL DICTIONARY 399 (24thed. 1982).

19 Sludge means “any solid, semisolid or liquid waste generated from a municipal,commercial, or industrial wastewater treatment plant, water supply treatment plant, or airpollution control facility or any other such waste having similar characteristics and effects.”42 U.S.C.A § 6903 (26A) (2012).

10

MAFOs must create and design NMPs to submit with their permit applications. Assateague

Coastkeeper, 200 Md. App. at 679.

Regarding Maryland’s nutrient management law, in September 1997, the General

Assembly and a governor-appointed commission examined events concerning fish

contamination in Maryland’s Lower Eastern Shore, Dep’t of Legis. Servs., Revised Fiscal

Note, S.B. 178 (1998), which indicated the presence of toxic dinoflagellate, Pfiesteria.18 Id.

After further research, scientists found a causal nexus between Pfiesteria and “the role of the

chicken industry and the enormous quantities of chicken litter generated and ultimately

applied to local fields as fertilizer for crop production.” Id. As a result, the Water Quality

Improvement Act of 1998 applied to “[a]n agricultural operation with [more] than $2,500 in

gross income; or [a] livestock operation with [more] than eight animal units defined as 1,000

pounds of live animal weight per animal unit.” Agric. § 8-803.1(b). It certified that those

farmers and land cultivators, who used chemical fertilizers, sludge,19 or animal waste, would

meet their nutrient needs concerning farm profits, while minimizing nutrient losses to soil,

and restoring Maryland’s waterways, specifically the Chesapeake Bay. See Agric. §§ 8-

11

801.1(a) and 8-803.1(e).

The U.S. EPA and U.S. Department of Agriculture have indicated that NMPs should

address “feed management, manure handling and storage, land application of manure, land

management record keeping, and other utilization options.” U.S. DEPARTMENT OF

AGRICULTURE AND U.S. EPA, UNIFIED NATIONAL STRATEGY FOR ANIMAL FEEDING

OPERATIONS 5, (1999), http://www.epa.gov/npdes/pubs/finafost.pdf (last visited Apr. 11,

2013).

In Maryland, the NMP process incorporates:

[(i)] Soil Samples: Soil samples are needed from every management unit onthe farm property. Management units should ideally be each field that is usedfor crops, grazing or hay production. Pastures are included in fields thatshould be tested. Sacrifice lots and holding pens do not need to be testedunless there are plans to apply manure or fertilizer to them . . . .

[(ii)] Manure Samples: If manure is to be applied to fields, a manure sampleto determine nutrient concentrations will be required.

[(iii)] Property Tax [Identification (“ID”)] Number: The proper tax ID numberfor each parcel of land that is farmed must be listed in the NMP . . . .

[(iv)] Property Maps: Property maps may be hand drawn or made from acomputer application . . . . The main concerns are that the property and fieldboundaries are identified with acreage, and roads accessing the property arelabeled.

[(v)] Crop Grown: Identify the predominant type of grass grown in the fields. . . .

[(vi)] Crop Yields: If hay is grown and harvested from the fields, the amountproduced per acre (ton/acre) is required.

[(vii)] Animals: The total number, type and weight of animals . . . is required.

12

[(vii)] Bedding: The type and total amount of bedding used is required.

[(viii)] Turnout Schedule: The number of hours [animals] are kept confined[versus] allowed access to pasture is required . . . . The amount of timeconfined relates to the amount of manure that is collected.

[(ix)] Manure Storage: Method of manure storage and dimensions of thestorage structure are needed.

[(x)] Manure Application Rate: If manure is spread, the spreader must becalibrated to determine the rate of application (tons/acre) . . . .

[(xi)] Transported Manure: If manure is transported off the farm, informationon where manure is transported must be recorded . . . .

UNIVERSITY OF MARYLAND, NUTRIENT MANAGEMENT PLANS FOR MARYLAND HORSE

FARMS 1-2, (2011), http://www.ansc.umd.edu/ERG/doc/EBR-14.pdf (last visited Apr. 11,

2013) (underlines omitted). See also Nutrient Management Plan Reporting Form, Parts B

and C.

After the information is collected, the permit applicant must file a summary of each

NMP with the MDA, and it shall retain a copy for three years in a manner that safeguards the

applicant’s identity. See Agric. § 8-801.1(b). Pursuant to the Public Information Act, the

public “may request to inspect or copy public records of the [MDA],” COMAR 15.01.04.03

(1988), including NMP summaries, and “[i]t is the policy of the [MDA] to facilitate public

access to the records . . ., when access is allowed by law, by minimizing costs and time

delays to persons requesting information.” COMAR 15.01.04.01 (1988).

FACTUAL AND PROCEDURAL BACKGROUND

On June 14, 2007, Waterkeeper Alliance submitted a Public Information Act request

13

to the MDA regarding several agricultural records. However, pertinent to the case at bar are

the inspections relating to (1) NMPs for the Nest Egg Farm in Princess Anne, Maryland, and

(2) NMPs for AFOs with approximately 125,000 broiler chickens that conducted waste

management practices and were located in the Chesapeake Bay watershed. On July 17, 2007,

the MDA denied access to the Waterkeeper Alliance, alleging that disclosure would be

contrary to the Water Quality Improvement Act. Waterkeeper Alliance presented an

additional request on July 30, 2007, regarding “the owner name, facility name, address,

county, phone number, longitude, latitude, and type of operation, of all poultry farms in . .

. Maryland.” On August 27, 2007, the MDA again denied the Waterkeeper Alliance access

to the records.

Subsequently, on February 5, 2008, appellants filed a complaint in the Circuit Court

for Anne Arundel County against the MDA and its administrators, alleging that “Maryland

law keeps confidential a summary of an NMP only to the extent that the identity of the

individual for whom the NMP was prepared would be revealed,” but the MDA “broadly and

inappropriately refused to disclose any and all portions of NMPs.” (emphasis in original).

On May 16, 2008, appellants submitted a third request, relating to enforcement records and

NMPs that were filed within and over the previous three years for AFOs in several counties,

including Dorchester County. The MDA surmised that these records could be disclosed, but

indicated that the requested enforcement records were still under evaluation.

After being notified of possible disclosure, on July 18, 2008, the Farm Bureau brought

an action in the Circuit Court for Dorchester County against the MDA to prevent the

14

disclosure of confidential information, averring that Agric. § 8-801.1(b)(2) required that the

MDA protect its members’ identifies beyond three years. On July 25, 2008, the MDA filed

a motion to transfer the Farm Bureau’s action to the Circuit Court for Anne Arundel County.

On August 8, 2008, the Farm Bureau filed an opposition to the motion, a motion to proceed

anonymously, and a motion for protective order, avowing that (1) the cases involved different

parties, (2) its members would be unduly inconvenienced, and that (3) the request interfered

with the members’ rights to privacy. On August 13 and August 22, 2008, the MDA filed its

respective reply and opposition, as well as a motion to strike and to dismiss the Farm

Bureau’s complaint. On September 2, 2008, the Circuit Court for Dorchester County granted

the MDA’s motion to transfer.

On September 15, 2008, the MDA filed a motion to consolidate the Farm Bureau’s

case with appellants’ action. The Farm Bureau filed a motion for summary judgment on

September 29, 2008. Thereafter, the MDA filed a cross-motion for summary judgment and

an opposition to the Farm Bureau’s motion for summary judgment. On October 30, 2008,

appellants filed their opposition to the Farm Bureau’s motion for summary judgment and

their motion in support of the MDA’s motion for summary judgment. On November 7, 2008,

the Farm Bureau filed a motion for preliminary injunction, requesting that the court prevent

the MDA from disclosing the farmers’ information.

A motions hearing was held on December 8, 2008, and on February 19, 2009, the

court filed a memorandum opinion and order [hereinafter “2009 order”], which granted the

MDA’s cross-motion for summary judgment, and denied the Farm Bureau’s motion for

15

summary judgment.

The court:

DECLARED, that the [MDA] must disclose [NMP] [s]ummaries thathave been maintained by the [MDA] for 3 years or less pursuant to the PublicInformation Act with the limitation that the [MDA] must redact any and allinformation from the [NMP] [s]ummaries that may allow for the identificationof the individual for whom the [NMP] was prepared; and it is further

DECLARED, that the [MDA] must disclose [NMP] [s]ummaries thathave been maintained by the [MDA] for more than three years without anyredaction of identifying information unless failure to redact identifyinginformation from [NMP] [s]ummaries that have been held for more than threeyears would allow for the identification of the individual for whom the [NMP]was prepared with respect to those [NMP] [s]ummaries that have beenmaintained by the [MDA] for three years or less; and it is further

DECLARED, that the [MDA] must redact any information from anydocuments subject to disclosure under the Public Information Act that arerelated to [NMPs] if such information would allow for the identification of theindividual for whom the [NMP] was prepared with respect to those [NMP][s]ummaries that have been maintained by the [MDA] for three years or less.

On April 2, 2010, one of the appellants, Assateague Coastkeeper, filed a request

concerning NMPs and reports regarding any Worcester County farm that violated the

provisions of the Water Quality Improvement Act during 2007 through 2010. In response,

the MDA “proposed that, instead of providing hard-copies of such records, it could search

its database and provide this information more efficiently in a spreadsheet but, to comply

with [Agric.] § 8-801.1(b)(2) and the court’s order, it would be required to redact any plan

information.” On September 6, 2010, the Farm Bureau sent a letter to the MDA, stating,

20 According to the MDA, there was only one spreadsheet.

16

“[c]learly, the excel spreadsheets[20] that have been created to respond to the [Public

Information Act] request fall into the “any document” category cited by [the] judge . . . .

Clearly, the document is related to nutrient management plans. And clearly, the name,

address, zip code, party id [sic], and operator voucher id [sic] number would allow for the

identification of the individual for whom a nutrient management plan was prepared.” As a

result, the Farm Bureau requested that all identifying information from the spreadsheets be

redacted.

On September 13, 2010, the Farm Bureau filed a new action against the MDA in the

Circuit Court for Worcester County. On September 22, 2010, Assateague Coastkeeper filed

a petition for contempt in Anne Arundel County, avowing that the MDA did not permit it to

inspect and copy public records in accordance with the court’s 2009 order. It requested that

the court compel the MDA to disclose the NMPs. Thereafter, the MDA filed a motion to

transfer the Farm Bureau’s action to Anne Arundel County, and on September 24, 2010, the

Circuit Court for Worcester County granted the MDA’s motion to transfer.

On May 2, 2011, the Circuit Court for Anne Arundel County dismissed the Farm

Bureau’s action, and instructed the MDA not to release any of the contested records. On

May 9, 2011, the Farm Bureau filed a motion for clarification of the court’s 2009 order,

requesting that “the [c]ourt issue an [o]rder clarifying its February 10, 2009 [m]emorandum

[o]pinion and [o]rder and declar[e] that the [MDA] must redact any fields of information

21 It is important to note that the motion for clarification was not a motion toreconsider, revise, and/or amend, but a request to clarify the court’s 2009 order.

17

from its [e]xcel spreadsheet that would identify the farmers for whom the nutrient

management plans were prepared.”21 On June 14, 2011, Assateague Coastkeeper and the

MDA filed their respective oppositions to the motion for clarification. On July 14, 2011, the

court issued its second order [hereinafter “2011 order”], granting the Farm Bureau’s motion

for clarification, stating:

ORDERED and DECLARED that the [MDA] must redact any informationfrom any documents subject to disclosure under the Public Information Actthat are related to [NMPs] if such information would allow for theidentification of the individual for whom the [NMP] was prepared with respectto those [NMP] [s]ummaries that have been maintained by the [MDA] forthree years or less. In applying this standard, the [MDA] must redact only thatinformation . . . with a specific [NMP]; and it is further:

ORDERED and DECLARED that, as applied to the spreadsheet ofenforcement information that the [MDA] will provide to the AssateagueCoastkeeper, the [MDA] must redact the following fields of information intheir entirety . . .:

# . . . – Visit Type[s], Operation Type[s]

* * *

# . . . – Total Farmed Acres

* * *

In addition, the [MDA] must review the following fields of information andredact any plan information that could be used to create a linkage between aspecific individual and a specific [NMP]:

# . . . – Compliance Comments

22 Appellants filed their notice of appeal on August 16, 2011. Although the court’sorder was issued on July 14, 2011, it was not filed until July 18, 2011, so the notice of appealwas timely.

18

* * *

and it is further:

ORDERED and DECLARED that, in redacting identifying information from[NMP] summaries or annual implementation reports, the [MDA] must redactthe entries for name, address, signature, and unique identification number . .. .

IT IS SO ORDERED.

(signature omitted)

Appellants noted a timely appeal.22

DISCUSSION

Whether The Circuit Court Erred In Permitting Disclosure of NMPsThat Were Beyond Three Years While Ordering That The MDA RedactSpecific Information.

The Water Quality Improvement Act, specifically Agric. § 8-801.1(b)(2), provides:

(b) Filing with [the MDA]. – (1) A summary of each [NMP] shall be filed andupdated with the [MDA] at a time and in a form that the [MDA] requires byregulation.

(2) The [MDA] shall maintain a copy of each summary for 3 years ina manner that protects the identity of the individual for whom the[NMP] was prepared.

The issue in the case at bar is whether the MDA must maintain NMP documents that

are beyond three years to safeguard the general permit applicant’s identity in response to a

Public Information Act request regarding disclosure of those NMPs.

23 Pursuant to State Gov’t § 10-611(g)(1), a public record is

(g) Public record. – (1) “Public record” means the original or any copy of anydocumentary material that:

(i) is made by a unit or instrumentality of the State government or of apolitical subdivision or received by the unit or instrumentality in connectionwith the transaction or public business; and

(ii) is in any form, including:

1. a card;

2. a computerized record;

3. correspondence;

4. a drawing;

5. film or microfilm;

6. a form;

7. a map;

8. a photograph or photostat;

9. a recording; or

10. a tape.

19

Pursuant to the Public Information Act, specifically State Gov’t § 10-615,

A custodian shall deny inspection of a public record[23] or any part of a publicrecord if:

20

(1) by law, the public record is privileged or confidential; or

(2) the inspection would be contrary to:

(i) a State statute;

(ii) a federal statute or regulation that is issued under the statuteand has the force of law;

(iii) the rules adopted by the Court of Appeals; or

(iv) an order of a court of record.

A.) Whether The General Assembly Only Intended To Protect NMPSummaries.

It is undisputed that the NMPs in the instant case fell within the purview of a “public

record,” so we examine the parties’ contentions. Appellants maintain that the court

erroneously held that any information relating to NMPs were protected because the statute

only safeguards identifying information contained in NMP summaries. The MDA avers that

nutrient management records are given the same protection as plan summaries.

A question regarding statutory interpretation is a legal question, which we review de

novo. Harvey v. Marshall, 389 Md. 243, 257 (2005) (citing Mohan v. Norris, 386 Md. 63,

66-67 (2005)); see also Davis v. Slater, 383 Md. 599, 604 (2004) (Maryland appellate courts

review issues de novo to decide if the circuit court was legally correct in its interpretations

of the Maryland Code.). “The fundamental goal of statutory construction is to ascertain and

effectuate the intention of the [l]egislature,” Witt v. Ristaino, 118 Md. App. 155, 162 (1997)

(citing Oaks v. Connors, 339 Md. 24, 35 (1995)), as well as “the ends to be accomplished,

or the evils to be remedied by a particular provision[.]’” Whitley III., et al. v. Maryland State

21

Bd. of Elections, et al., 429 Md. 132, 149 (2012) (citing Barbre v. Pope, 402 Md. 157, 172

(2007)).

To construe the intent, we start by observing the plain meaning of the statutory

terminology, Bornemann v. Bornemann, 175 Md. App. 716, 724 (2007) (citing Reier v. State

Dept. of Assessments and Taxation, 397 Md. 2, 26 (2007)), so that “‘no word, clause,

sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory[.]’”

Whitley, 429 Md. at 149. “. . . When the plain meaning is clear and unambiguous, and

consistent with both the broad purposes . . . of the provision being interpreted . . .,” we end

our search, Assateague Coastkeeper, 200 Md. App. at 709 (quoting Wal Mart Stores, Inc. v.

Holmes, 416 Md. 346, 359 (2010)) (quoting Schlosser v. Uninsured Employers’ Fund, 414

Md. 195, 203-04 (2010)), except in the “interest of completeness.” See Whitley, 429 Md. at

155. If the language is ambiguous and susceptible to more than one meaning, we examine

intent from the legislative history, as well as “case law, purpose, structure, and overarching

statutory scheme in aid of searching for the intention of the legislature.” Id. at 149. See also

Bornemann, 175 Md. App. at 724 (citing Evans v. State, 396 Md. 256, 341 (2006); Allstate

Ins. Co. v. Kim, 376 Md. 276, 290 (2003)). The overall purpose, legislative history, and the

statute’s language is analyzed in its entirety to elucidate the inconsistencies and ambiguities.

Assateague Coastkeeper, 200 Md. App. at 709 (quoting Wal Mart Stores, Inc. v. Holmes, 416

Md. 346, 359 (2010)) (quoting Schlosser v. Uninsured Employers’ Fund, 414 Md. 195, 203-

04 (2010)).

Furthermore, “‘[w]hen faced with a problem of statutory construction, [the Court of

22

Appeals] [has] show[n] great deference to the interpretation given the statute by the officers

or agency charged with its administration.’” Jordan Towing, Inc. v. Hebbville Auto Repair,

Inc., 369 Md. 439, 459 (2002) (quoting Udall v. Tallman, 380 U.S. 1, 16 (1965)). The Court

of Appeals has stated:

[A] court’s task on review is not to substitute its judgment for the expertise ofthose persons who constitute the administrative agency. Even with regard tosome legal issues, a degree of deference should often be accorded the positionof the administrative agency. Thus, an administrative agency’s interpretationand application of the statute which the agency administers should ordinarilybe given considerable weight by reviewing courts.

Assateague Coastkeeper, 200 Md. App. at 709 (quoting Headen v. Motor Vehicle Admin.,

418 Md. 559, 570 (2011)) (quoting Bd. of Physicians Quality Assurance v. Banks, 354 Md.

59, 68 (1999)) (quotations omitted).

We first examine the plain language of Agric. § 8-801.1(b)(2), which states that the

MDA “shall maintain a copy of each summary for 3 years . . . .” Appellants maintain that

the statute only pertains to NMP summaries. The MDA avows that nutrient management

records are given the same protection as plan summaries. As Judge Glenn Harrell for the

Court of Appeals recently asserted in Whitley, 429 Md. at 155, “‘[e]ven when the language

of a statute is free from ambiguity, in the interest of completeness[,] we may . . . explore the

legislative history of the statute under review . . . [.] [T]he resort to legislative history is a

confirmatory process; it is not undertaken to contradict the plain meaning of the statute.’”

(quoting Mayor & City Council of Balt. v. Chase, 360 Md. 121, 131 (2000)). As a result, in

the case at bar, we examine the legislative history.

23

The origin of Agric. § 8-801.1(b)(2) is found in the Water Quality Improvement Act.

This landmark legislation offered guidance to other states regarding the control of nutrient

levels in waterways. U.S. EPA, Special Focus Issue: Controlling Nutrients [T]hrough State-

Based Authorities, NONPOINT SOURCE NEWS-NOTES, May 2012, at 7, available at

http://water.epa.gov/polwaste/nps/outreach/upload/91issue.pdf (last visited Apr. 11, 2013).

Senate Bill 178 of the 1998 General Assembly was introduced because of the contaminated

fish occurrences in Maryland’s Lower Eastern Shore. Dep’t of Legis. Servs., Revised Fiscal

Note, S.B. 178 (1998). This new bill gained opposition from agriculturalists because its

purpose was to “replace [the] voluntary, nitrogen-based, agricultural nutrient management

program with a phosphorus and nitrogen-based program.” Id. Rural legislators introduced

a counter bill, the “Nutrient Management Practices Improvement Act of 1998.” See

Amendments to H.B. 599 (Third Reading File Bill), 412th Gen. Assem., Reg. Sess. (Md.

1998). After several compromises regarding both bills, the Water Quality Improvement Act

was passed and enacted in May 1998. Dep’t of Legis. Servs., Revised Fiscal Note, S.B. 178

(1998).

When originally enacted, Agric. § 8-801.1 stated “each nutrient management plan

shall be filed with the [MDA] when it is developed; and each time it is updated.” See

Amendments to H.B. 599 (Third Reading File Bill), 412th Gen. Assem., Reg. Sess. (Md.

1998) (emphasis added) (capital letters and roman numerals omitted). However, in 2004, the

General Assembly amended the statute to read “a summary of each nutrient management

plan shall be filed and updated with the [MDA] . . .” at a time and in a form that the MDA

24

requires by regulation. S.B. 182, 418th Gen. Assem., Reg. Sess. (Md. 2004) (emphasis

added) (capital letters omitted).

Maryland is not the only state that requires a summary to be filed. Delaware’s

regulation concerning pollution from private lands into its watersheds provides that “[t]he

homeowner’s association must retain the [NMP] on file and maintain records of nutrient

applications. A summary of nutrient application records must be submitted to the Delaware

Department of Agriculture, Nutrient Management Program on an annual basis.” Delaware

Dep’t of Natural Res. & Envtl. Control v. Sussex County, 34 A.3d 1087, 1094 (Del. 2011).

We perceive that the General Assembly may have amended the statute because

agricultural plans are voluminous, expensive, and time-consuming. For example, in

Goldschmidt v. U.S. Dep’t of Agriculture, 557 F.Supp. 274, 275 (D.D.C. 1983), the U.S.

District Court for the District of Columbia determined whether inspection reports were

“investigatory reports compiled for law enforcement purposes” concerning the inspection of

meat and poultry, and thereby, exempt from public disclosure when a Freedom of

Information Act (“FOIA”) request was submitted. Regarding the inspection reports and the

summaries, the court stated:

Prior to May of 1982, the [Food Safety and Inspection Service (“FSIS”)]Review Staff routinely wrote up [inspection location reports] for everyestablishment reviewed irrespective of whether any serious violations ofregulations were found. The [inspection location report] contained a list of alldeficiencies noted by the reviewer, no matter how minor.

* * *

In May[] 1982, that policy was changed. Instead of preparing an [inspection

25

location report] for each establishment reviewed, FSIS Review Staff preparedcircuit reports which summarized general conditions in an FSIS circuit.However, if the reviewer noted conditions in a particular plant that posed a“serious” violation of regulations, an individual [inspection location report]would also be prepared and attached to the circuit summary report.

Id. at 275. Hence, it is logical to require “summations or compilations of what the records

contain . . . ” as opposed to extensive documents. Chapman v. State, 331 Md. 448, 461

(1993) (citation omitted).

More importantly, the authority that the General Assembly delegated to the MDA

includes “a broad power to promulgate legislative-type rules or regulations in order to

implement the statute.” Adventist Health Care, Inc. v. Maryland Health Care Comm’n, 392

Md. 103, 119 (2006) (quoting Christ v. Department of Natural Resources, 335 Md. 427, 445

(1994)). The MDA promulgated COMAR 15.20.07.06(A)(4), which states that the MDA

“shall keep, and shall protect the confidentiality of, all nutrient management plan

information submitted, so as to protect the identity of the person for whom the plan was

developed.” (emphasis added). The MDA asserts that it has applied this regulation to NMP

information associated with summaries, but also plan information relating to conducting an

on-farm audit. Because our Courts have “frequently give[n] weight to an agency’s

experience in interpretation of a statute that it administers,” Cosby v. Dep’t of Human Res.,

425 Md. 629, 638 (2012), we respect the MDA’s expertise, and defer to its interpretation that

nutrient management records must also be safeguarded.

B.) Whether The General Assembly Only Intended To Protect Applicant’sIdentification For “Three Years.”

24 From the onset of the introduced bills, the term “three years” has remainedconsistent, with no amendments.

26

Concerning the “three years” requirement, appellants maintain that the circuit court

erred because Agric. § 8-801.1(b) “clearly and unambiguously limits its scope to NMP

summaries maintained by [the] MDA for three years or less and protects only the identifying

information.” The MDA asserts that Agric. § 8-801.1(b)(2) is silent on the issue, and that

disclosing the NMP summaries that are more than three years old is consistent with the

Public Information Act. The Farm Bureau argues that “. . . because many NMPs do not

change significantly from one year to the next and if NMP information were [sic] released

to the public after three years, it would be very easy for someone to figure out the identity

of the farmers who have current NMPs.”

As previously indicated, we explore other sources “‘[e]ven when the language of [the]

statute is free from ambiguity, in the interest of completeness . . . .” See Whitley, 429 Md.

at 155 (quoting Mayor & City Council of Balt., 360 Md. at 131). Although we researched

the legislative history regarding the first issue, the history does not guide us in construing the

statute for the second issue.24

Appellate courts analyze the statutory scheme in its entirety and “attempt to

harmonize provisions dealing with the same subject so that each may be given effect.”

Henriquez v. Henriquez, 413 Md. 287, 297-98 (2010) (quoting Bowen v. City of Annapolis,

402 Md. 587, 613-14 (2007)) (quoting Kushell v. Dep’t of Natural Res., 385 Md. 577

(2005)). The Court of Appeals has further searched the “contested provisions of Maryland’s

27

. . . Article[s] in the context of the statutory scheme as a whole and construe the plain

language so that the various sections of the article do not conflict with one another.” Ctr.

Ins. Co. v. J.T.W., 397 Md. 71, 81 (2007)) (citing Chow v. State, 393 Md. 431, 443 (2006);

Deville v. State, 383 Md. 217, 223 (2004); Navarro-Monzo v. Washington Adventist, 380 Md.

195, 204 (2004)). See also Frey, et al. v. Comptroller of the Treasury, 422 Md. 111, 183

(2011) (“‘[W]hen two provisions ‘relate to the same subject matter, and are not inconsistent

with each other, they should be construed together and harmonized where consistent with

their general object and scope.’”) (additional citations omitted). Hence, we review another

section in the Agriculture Article, § 8-306, which was enacted in close proximity to Agric.

§ 8-801.1(b)(2).

Agric. § 8-306’s genesis originated from House Bill 706 of the 1999 General

Assembly. It was enacted “FOR the purpose of requiring the supervisors of a soil

conservation district to provide the [MDA] and the Department of the Environment with any

information in a soil conservation and water quality plan for certain purposes; authorizing

the [MDA] to use the information for statistical purposes and to release the information to

the Department of the Environment for a certain compliance or enforcement purpose . . . .”

Amendments to H.B. 706 (Third Reading File Bill), 413th Gen. Assem., Reg. Sess. (Md.

1999) (emphasis omitted).

Agric. § 8-306(b) provides, in pertinent part:

(b) Maintenance of information from a soil conservation and water quality plan. – (1) The supervisor shall maintain information from a soil conservationand water quality plan in a manner that protects the identity of the person for

25 Md. Code (1996, 2007 Repl. Vol.), § 4-413(b) of the Environment Article provides:

(b) Agricultural land management practices. – A person engaged inagricultural land management practices, . . ., may not add, introduce, leak,spill, or otherwise emit soil or sediment into waters of the State unless thatperson is implementing and maintaining a soil conservation and water qualityplan approved by the local soil conservation district. If a person engaging inagricultural land management practices without a district approved soilconservation and water quality plan complies with an order for correctiveaction under § 4-412(a) of this subtitle, that person shall not be subject topenalties as provided under § 4-417 of this subtitle.

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whom the plan is prepared. However, the supervisors shall make a soilconservation and water quality plan available to the Department of theEnvironment for enforcement action under § 4-413 of the EnvironmentArticle[25] and the Maryland Department of Agriculture which may use theinformation for statistical purposes.

(2) The Department shall:

(i) Maintain the information in the manner that protects theidentity of the person whom the plan is prepared; and

(ii) Make any information from a plan available to the MarylandDepartment of the Environment to support the development ofa compliance or enforcement case for purposes of addressing anexisting water quality problem in accordance with proceduresestablished between the departments and the State SoilConservation Committee.

Predicated on the language in Agric. § 8-306(b), and its reference to Md. Code (1996,

2007 Repl. Vol.), § 4-413(b) of the Environment Article, regarding prohibited behavior

concerning soil and sediments into Maryland’s waters, enforcement, and penalties, we

deduce that the 1999 General Assembly did not include a time period in Agric. § 8-306(b)

because this would have hindered the investigatory practices “relating to the character of soil

29

erosion and the preventative and control measures needed . . .,” as well as “the development

of a compliance or enforcement case for purposes of addressing an existing water quality

problem . . . .” See Agric. §§ 8-306(a)(1) and 8-306(b)(2)(ii).

During oral arguments, the MDA indicated that it surmised that the General Assembly

introduced the “three years” limitation in Agric. § 8-801.1(b)(2) because soil testing and

analysis are recommended every three years. According to the MDA’s website, “[NMPs]

are prepared by the Cooperative Extension and certified private consultants[,] and are revised

every two to three years to incorporate new knowledge and address changes in crop

management.” Nutrient Management Implementation Plan, MDA, http://mda.maryland.

gov/resource_conservation/Pages/nmp.aspx (last visited Apr. 11, 2013). See also MDA,

PLANT NUTRIENT RECOMMENDATIONS BASED ON SOIL TESTS FOR TURF MAINTENANCE 6

(2003),http://mda.maryland.gov/resource_conservation/Documents/consultant_

information/2003%20I-E1%20p1-8%20s5.pdf (last visited Apr. 11, 2013) (stating, “[a]fter

the initial soil test, subsequent sampling every 3 years is generally sufficient to monitor soil

[phosphorus] and [potassium] levels”); MDA, PLANT NUTRIENT RECOMMENDATIONS BASED

ON SOIL TESTS FOR SOD PRODUCTION 5 (2003), http://mda.maryland.gov/resource_

conservation/Documents/consultant_information/2003%20I-B3%20p1-7%20s5.pdf (last

visited Apr. 11, 2013) (stating, “[f]or fields that have previously been in production,

sampling every 3 years is generally sufficient to monitor soil [phosphorus] and [potassium]

levels”).

According to the University of Maryland:

26 This statute, which was codified as Md. Code (1974, 2001 Repl. Vol.), § 13-704 ofthe Education Article, is no longer written in the Article. We perceive that it has beeneradicated because the University of Maryland Soil Testing Laboratory closed in June 2003.See Mary Ellen Slayter, Loss of soil lab lamented, THE BALTIMORE SUN, Sept. 25, 2005,available at http://articles.baltimoresun.com/2005-09-25/news/0509240545_1_soil- testing-maryland-farmers-university-of-maryland (last visited Apr. 11, 2013).

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Soil testing is a useful tool that can help ensure the efficient use of appliedplant nutrients. Soil tests provide a means for assessing the fertility status ifa soil, but soil tests do not provide a direct measure of the actual quantity ofplant available nutrients in the soil. Instead, soil tests measure the quantity ofa nutrient element that is extractable from a soil by a particular chemicalextracting solution. The measured quantity of extractable nutrient in a soil isthen used to predict the crop yield response to application of the nutrient asfertilizer, manure, or other amendment. As soil test levels increase for aparticular nutrient, the expected crop yield response to additions of thatnutrient decreases.

FRANK J. COALE & JOSHUA MCGRATH, UNIVERSITY OF MARYLAND, SOIL FERTILITY

MANAGEMENT 1 (2006), http://extension.umd.edu/sites/default/files/_images/programs/

anmp/SFM-4.pdf (last visited Apr. 11, 2013). The “University System of Maryland – Soil

Testing – Fees and Procedures” Statute,26 which originated from Senate Bill 416 and House

Bill 952 of the 2000 General Assembly established a soil testing laboratory in the University

System of Maryland, which would:

. . . [E]stablish certain procedures and requirements for the submission ofcertain soil samples; prohibiting certain soil testing laboratories in theUniversity System of Maryland from charging a certain fee for a certain soiltest under certain circumstances; and requiring certain laboratories to issuecertain reports within a certain time frame.

S.B. 416, 414th Gen. Assem., Reg. Sess. (Md. 2000).

As previously indicated, the 1998 and 1999 General Assemblies focused on

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controlling the levels of pollutants entering Maryland’s waters, and attempted to solve this

problem by enacting environmental statutes that encompassed different methods of

deterrence. While soil testing regarding NMPs are revised every three years, Agric. 8-306’s

“[soil conservation and water quality plan] can be used for up to ten years without revision

if substantial changes in management do not occur.” Soil Conservation Water Quality Plan

Implementation, MDA, http://mda.maryland.gov/resource_ conservation/Pages/scwqpi.aspx

(last visited Apr. 11, 2013). This is logical because Agric. § 8-306’s approach to prevent

environmental deterioration and degradation of Maryland’s waters is wider, concerning the

management of erosion and runoff in an effort to maximize the best use of the soil and water

via enforcement mechanisms. See id. However, Agric. § 8-801.1(b)’s method is narrower,

focusing on the nutrients necessary to yield a productive crop, requiring farmers to “follow

guidelines for the amount, timing, and placement of nutrients on each crop.” Nutrient

Management Implementation Plan, MDA, http://mda.maryland.gov/resource_conservation/

Pages/nmp.aspx (last visited Apr. 11, 2013).

As we noted previously, both Agric. §§ 8-306 and 8-801.1(b) refer to protecting the

identity of the individual for whom the plans were prepared, but Agric. § 8-306 does not

include any time period. If we conclude that the General Assembly intended to provide an

exemption regarding NMP documents for three years, but after, the NMP records were

unprotected, and could be disclosed, this interpretation would contradict Agric. § 8-306’s

language. Hence, the soil conservation and water quality plans would be forever exempt

from disclosure. However, because our Courts have traditionally examined the statutory

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scheme in its entirety and in an “attempt to harmonize provisions dealing with the same

subject so that each may be given effect,” Henriquez, 413 Md. at 297-98 (quoting Bowen,

402 Md. at 613-14) (quoting Kushell, 385 Md. at 577), and “so that the various sections of

the article do not conflict with one another,” Ctr. Ins. Co., 397 Md. at 81 (citing Chow, 393

Md. at 443; Deville, 383 Md. at 223; Navarro-Monzo, 380 Md. at 204), we deduce that the

“three year” time period does not relate to the protection of the permit applicant’s

identification, but rather that the General Assembly included “three years” in Agric. § 8-

801.1(b)(2) regarding the recommendation of soil testing.

While this issue is one of first impression in Maryland, other jurisdictions have

considered whether NMPs are exempt from disclosure. In Cmty. Ass’n for Restoration of the

Env’t v. Dep’t of Ecology, 205 P.3d 950, 961 (Wash. Ct. App. 2009), the Washington Court

of Appeals, Division Two, determined whether the Department of Ecology (“the

Department”) erred in permitting information to be redacted in dairy companies’ NMPs.

Under the pertinent Washington statute:

In addition to the submission of [NMPs] to [the Department], the permitrequire[d] CAFOs to maintain “‘certain additional operational records onsite’”and make these records “‘available upon request by [the Department] and [theDepartment of] Agriculture.” If a member of the public request[ed]information, [the Department] [would] request the information from theCAFOs. Under the permit, the CAFO must [have] suppl[ied] the informationupon [the Department’s] request. [The Department] [could] then determine ona “case-by-case” basis whether any of the requested information qualifie[d] asa confidential business record and [was], therefore exempt form publicdisclosure.

Id. at 955 (word “the Department of” added in Cmty. Ass’n for Restoratoin of the Env’t, 205

33

P.3d at 955).

The Department provided a general permit to dairy companies regarding the release

of nitrate pollutants. Id. at 953. The plaintiff–community organization filed a complaint with

the Pollution Control Hearings Board (“the Board”), who affirmed. Id. The plaintiff then

filed a complaint with the circuit court, contending that “ . . . [the Board] erred when it

concluded that the permit ma[de] [NMPs] available for public review and further argue[d]

that without the redacted information, citizens [would] not be able to determine whether

observed CAFO activities [were] done pursuant to its [NMP] or in violation of that [NMP].”

Id. at 961 (internal quotations omitted). The Department maintained that the Clean Water

Act and state law protected information regarding trade secrets, and that its “case-by-case”

analysis was reasonable. Id.

Under Washington’s law, it states:

[W]henever any records or other information supplied to [the Department]“relate to the processes of production unique to the owner or operator thereof,or may affect adversely the competitive position of such owner or operator ifreleased to the public or to a competitor, the owner or operator . . . may socertify, and request that such information or records be made available only forthe confidential use of [the Department].

Id. at 961 (internal quotations omitted). The Washington appellate court stated that the

statute granted the Department authority to decide whether a NMP constitutes a trade secret,

id. at 962, and therefore deferred to the Department regarding the redaction of specific

information. See id.

In Idaho Conservation League, Inc. v. Idaho State Dep’t of Agriculture, 146 P.3d 632,

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637 (Idaho 2006), the Idaho Supreme Court decided whether NMPs constituted “public

records,” and thus, subjecting them to public disclosure. The plaintiff–environmental

organization submitted a request to the Department of Agriculture (“the Department”)

regarding disclosure of feedlot operators’ NMPs. Id. at 633. The Department failed to

disclose the NMPs, averring that it did not have possession. Id. The plaintiff filed a

complaint, and the circuit court held that “those NMPs need not be produced by [the

Department] because they had been filed using the Idaho OnePlan computer format, and a

statute direct[ed] information so submitted [as] exempt from disclosure.” Id. The Idaho

statute provided that:

. . . To provide for the establishment and encouragement of the “IdahoOnePlan” as a primary computer-based conservation planning process for allnatural resource concerns [. . .,] [t]he information provided by those using the“Idaho OnePlan” shall be deemed to be trade secrets, production records orother proprietary information and shall be kept confidential and shall beexempt from disclosure . . . .

Id. at 634. The Department avowed that the public only had a right to inspect regarding

NMPs that were in its possession. Id. Concerning the NMPs submitted electronically, the

plaintiff maintained that only voluntary conservation plans were exempted. Id. at 636. The

Idaho Supreme Court was unpersuaded by the Department’s contention, stating that

possession was irrelevant. Id. Regarding the plaintiff’s assertion, the Idaho court held that

this contention was not stated in the plain language of the statute, and ultimately exempted

the Idaho OnePlan NMPs. Id. However, relating to the non-electronic submitted NMPs, the

Court concluded that there was no statutory exemption, holding:

27 The General Assembly delegates “broad power to promulgate legislative-type rulesor regulations in order to implement the statute” to agencies. Adventist Health Care, 392Md. at 119 (quoting Christ, 335 Md. at 445). This statute is referred to as the agency’s“organic statute.” See Marks v. Crim. Injuries Comp. Bd., 196 Md. App. 37, 57 (2010)

(continued...)

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If the Legislature should choose to make NMPs exempt from publicinspection, it certainly could do so, as it has on a number of occasions forrecords compiled elsewhere which come into the hands of a public agency,such as court files of judicial proceedings, law enforcement records, tradesecrets, draft legislation, tax commission records, and, . . . certain informationsubmitted via the Idaho One Plan.

Id. (additional citation omitted).

We further examine federal case law, and surmise that the U.S. District Court for the

District of Columbia is a leading court in examining the issue. In Zanoni v. U.S. Dep’t of

Agriculture, 605 F.Supp.2d 230, 232 (D.D.C. 2009), the plaintiff submitted a Freedom of

Information Act (“FOIA”) request to the Animal Plant Health Inspection Service regarding

“. . . all records of registered premises contained in [databases], including the name of the

entity, name of contact person, address, telephone number, . . ., and type of operation run on

the premises.” Id. at 233. The U.S. Department of Agriculture (“Agriculture Department”)

denied her request, alleging that FOIA exempted the documents from disclosure. Id. The

plaintiff filed a complaint in the U.S. District Court, and the Court ordered that the

Agriculture Department respond to the plaintiff’s request. See id. at 234. The U.S.

Department provided the entities’ names, but did not disclose any further information. Id.

Subsequently, both parties filed motions for summary judgment. Id.

The U.S. District Court examined the organic statute,27 which provided:

27(...continued)(stating, “[o]ur review of an agency’s determinations of law is plenary, although an agency’sinterpretation of its organic statute is entitled to some deference.”) (citing Total AV v. Deptof Labor, 360 Md. 387, 394 (2000)) (additional citation omitted). See also Harford CountyPeople’s Counsel v. Bel Air Realty Assocs. Ltd. P’Ship, 148 Md. App. 244, 258-59 (2002)(stating “[w]ith respect to statutory interpretation, we will likewise defer in the appropriatecase to an agency’s interpretation and application of its organic statute.”) (citing Bd. ofPhysician Quality Assurance v. Banks, 354 Md. 59, 68 (1999)).

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[A]ny officer or employee of the [U.S.] Department of Agriculture . . . shallnot disclose . . . information provided by an agricultural producer or owner ofagricultural land concerning the agricultural operation, farming or conservationpractices, or the land itself, in order to participate in programs of the [U.S.]Department.

Id. at 236. The Court determined that the information sought concerned an “agricultural

operation, farming . . . or the land itself,” as it related to “. . . the production and marketing

of agricultural commodities and livestock.’” Id. at 237. Hence, the request was properly

denied. Id. at 238.

Although not directly analogous to the case at bar, regarding NMPs, an individual’s

identification, and his or her personal information, the next two cases assist our Court in

understanding the analysis of the U.S. District Court for the District of Columbia concerning

the disclosure, or exemption, of public documents relating to other confidential information,

pursuant to FOIA.

In Heartwood, Inc., et al. v. U.S. Forest Service, 431 F.Supp.2d 28, 31 (D.D.C. 2006),

the plaintiff sought copies of individual draft reports of ecological assessments regarding

national forests. The U.S. Forest Service (“Forest Service”) stated that the draft reports were

exempted pursuant to FOIA. Id. at 32. The plaintiff filed a complaint, and both parties filed

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motions for summary judgment. Id. at 33. The U.S. District Court for the District of

Columbia stated that the purpose of the alleged exception was to “‘protect [] the consultative

functions of government by maintaining the confidentiality of advisory opinions,

recommendations, and deliberations comprising part of a process by which governmental

decisions and policies [were] formulated.’” Id. at 36. Amongst other reasons, the Court

concluded that the documents were not protected because (1) the Forest Service was

meticulous in not revealing recommendations or opinions, and (2) the Forest Service’s

employees obtained the drafts without disclosing any policy or preliminary positions. Id. at

37-38.

In Defenders of Wildlife et al. v. U.S. Dep’t of Agriculture, 311 F.Supp.2d 44, 50-51

(D.D.C. 2004), the plaintiffs submitted a FOIA request to the Agriculture Department

regarding the disclosure of (1) all records relating to suspending national forest management

regulations, and (2) a record of non-agency individuals who were contacted concerning

reviewing, recommending, or amending the regulations. The Forest Service disclosed 166

pages, but exempted 636 pages of important documents from disclosure. Id. at 51. In

addition to other documents, the exempted information included (1) redacted electronic

communication to protect investigating personnel’s personal information, (2) an outline that

was redacted to protect the theories of the individuals, and (3) documents referring to

conversations between agency personnel. Id. at 52. The plaintiffs filed a complaint, and both

parties filed motions for summary judgment. Id.

The Court concluded that the Forest Service failed to illustrate that the documents

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included confidential information, and that because the documents “[did] not specify by

name, title, and position, the exact authors or recipients of the documents[,]” the Court was

unable to fully conclude whether the disclosed information was confidential. See id. at 59

(additional citation omitted). Thereby, the Court directed the parties to submit additional

information with adequate detailed descriptions, so that it could determine whether the

documents were exempted because it would reveal confidential data. See id. at 60.

In the case at bar, during the motions hearing, the following discussion ensued, and

is pertinent to our analysis:

THE COURT: I guess that is what I am wondering. What do[es] [the MDA]do with the plans after three years?

[FARM BUREAU’S COUNSEL]: Well, they can destroy them, they canreturn them to –

THE COURT: Not what they can –

[FARM BUREAU’S COUNSEL]: – to the farmers.

THE COURT: – but what do they do? What has been the practice, what hasbeen the policy? Do you know?

[FARM BUREAU’S COUNSEL]: I don’t know what they do. Myunderstanding is that they have a document retention policy that is their defaultdocument retention policy and that allows them to keep the plans for longerthan three years . . . .

* * *

THE COURT: And I think that is where I am struggling because I don’t knowwhat the Agriculture Department does with the plans that they have. I meanI – I know that they collect all of the information . . . . But what happensactually to the plans, Mr. Schlick [,MDA’s counsel], after three years? . . .

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[MDA’S COUNSEL]: There is a statute, Your Honor. The Department keepsthem and wishes to keep them for these reasons. First, they establish abaseline for a particular farm so that when a new filing is made that can becompared –

THE COURT: Where is the statute – what am looking at?

[MDA’S COUNSEL]: The statute is the Public Records Law, Your Honor.

THE COURT: Okay.

[MDA’S COUNSEL]: And the Public Records Law is State Government 10-639. And that provides –

THE COURT: Hold on. State Government –

[MDA’S COUNSEL]: – that a public – 10-639, which provides that a publicofficial shall offer to be archived, the state archives, any public record of theofficial that no longer is needed.

There is also a criminal statute, Criminal Law 8-606(B), which prohibits astate official from – or employee from –

THE COURT: What was it, again?

[MDA’S COUNSEL]: Criminal Law 8-606B [sic], which prohibits theunauthorized destruction of public records . . . .

* * *

[MDA’S COUNSEL]: One of the factors in enforcement is whether aviolation was willful, and one factor the Department might consider ishistorical compliance. So, we need these historical plan records in order todetermine historical compliance and therefore the sanctions fornoncompliance.

It is also necessary to keep these plan information [sic] to identify trends innutrient management and to assess the success of the program overall . . . .

We concur with the judgment of the circuit court, and offer a comprehensive analysis

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of the pertinent reasons regarding our determination. First, the NMPs at issue constitute

public records pursuant to the Public Information Act, and it permits the public to inspect any

public record at any reasonable time. Moreover, if we determine that the General Assembly

intended to offer an exemption concerning NMP documents for three years, but after, the

NMP records could be disclosed, this interpretation would frustrate the purpose of Agric. §

8-306(b)’s language. Thus, Agric. § 8-306’s required soil conservation and water quality

plans would be forever exempt from disclosure. Lastly, the MDA articulated the reasons

why it possessed the NMP documents beyond three years, and neither reason concerned

confidentiality of the permit applicant’s identity. Instead, the reasons were comparisons of

the original and new filings, determining whether there was a willful violation by examining

past compliance, and ascertaining the impact and success of the program.

As Judge Harrell stated in Whitley, 429 Md. at 153, “[i]n construing a statute, we must

keep in mind also the purpose of the provisions at issue.” (citing Barbre v. Pope, 402 Md.

157, 172 (2007)) (noting that the Court’s primary goal in statutory construction was to

“‘discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by

a particular provision’”). In the 2011 order, the circuit court (emphasis added):

ORDERED and DECLARED that the [MDA] must redact any informationfrom any documents subject to disclosure under the Public Information Actthat are related to [NMPs] if such information would allow for theidentification of the individual for whom the [NMP] was prepared with respectto those [NMP] [s]ummaries that have been maintained by the [MDA] forthree years or less. In applying this standard, the [MDA] must redact only thatinformation . . . with a specific [NMP]; and it is further:

ORDERED and DECLARED that, as applied to the spreadsheet of

28 The spreadsheet related to Assateague Coastkeeper’s April 2010 filing, requestingNMPs and reports regarding any Worcester County farm that violated the provisions of theWater Quality Improvement Act during 2007 through 2010. In response, the MDA prepareda spreadsheet, but initially, the circuit court instructed the MDA not to release any of thecontested records.

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enforcement information that the [MDA] will provide to the AssateagueCoastkeeper, the [MDA] must redact the following fields of information intheir entirety . . .:[28]

# . . . – Visit Type[s], Operation Type[s]

* * *# . . . – Total Farmed Acres

* * *In addition, the [MDA] must review the following fields of information andredact any plan information that could be used to create a linkage between aspecific individual and a specific [NMP]:

# . . . – Compliance Comments

* * *

and it is further:

ORDERED and DECLARED that, in redacting identifying information from[NMP] summaries or annual implementation reports, the [MDA] must redactthe entries for name, address, signature, and unique identification number. . . .

IT IS SO ORDERED.

(signature omitted)

Accordingly, we agree with the circuit court’s judgment because it strikes a balance

between the principled policy of permitting the public to inspect and evaluate public reports

pursuant to the Public Information Act, all while continuing to remain sensitive to the

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applicant’s personal information, specifically his or her identity. The circuit court’s ruling

was beneficial to each party, as appellants had access to the NMP documents, and the Farm

Bureau’s members had protection regarding their identities and personal information.

Pursuant to the above reasoning, we conclude that the General Assembly intended that

NMP documents could be disclosed regardless of the year, but that the MDA must protect

identifying information that would reveal specific applicant’s identity during disclosure of

such documents. We therefore affirm the circuit court’s judgment.

JUDGMENT OF THE CIRCUITCOURT FOR ANNE ARUNDELCOUNTY IS AFFIRMED. COSTS TOBE PAID BY APPELLANTS.