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AG proposes narrow exemption to let custodians withhold documents compiled for pending litigation
Summary
House Bill 821, as amended, would let custodians withhold records "compiled or created because of pending or reasonably anticipated litigation" if disclosure would be contrary to the public interest. The attorney general argued the change would prevent litigants from using the Public Information Act to circumvent discovery; press groups cautioned
Patrick Hughes of the Office of the Attorney General described House Bill 821 as a narrowly targeted discretionary exemption that would permit, but not require, custodians to withhold records "compiled or created because of pending or reasonably anticipated litigation" until litigation concludes. Hughes proposed amendments narrowing initial draft language and said the measure mirrors protections that exist in several other states.
Hughes said the exemption would (1) prevent PIA requests from being used as a tool to circumvent discovery rules, (2) protect settlement communications and other materials not already covered by attorney-client or work-product protections, and (3) reduce document-by-document litigation over whether a record is protected. He emphasized the exemption remains discretionary and requires the custodian to show disclosure would be "contrary to the public interest."
Journalists and civil-rights witnesses urged caution. Rebecca Snyder and others told the committee the phrase "compiled or created because of" could be read broadly, and asked for objective standards and judicial oversight. Deputies from Maryland Emergency Management and local associations said the exemption would help level the playing field because state agencies litigating against private parties may be vulnerable to early PIA-driven disclosures.
Committee members suggested negotiation and narrower drafting; the attorney general's office said it proposed amendments to address concerns and welcomed a workgroup to produce clearer statutory text.
