The decision by Baltimore City Circuit Court Judge Lawrence Fletcher-Hill allowing the list of donors to The Mosby 2021 Trust to remain secret was disappointing and, in my opinion, wrong.

He overturned an order by the Maryland Public Information Act (MPIA) Compliance Board that compelled the Baltimore City Board of Ethics to turn over the list to the Baltimore Brew and Baltimore Sun.

In 2021, the organizers of the Mosby trust applied for status as a tax-exempt political organization governed by Section 527 of the Internal Revenue Code. The trust solicited money to help pay for legal expenses incurred by City Council President Nick Mosby and his wife, former Baltimore State’s Attorney Marilyn Mosby, during federal investigations into their finances.

The trust collected $14,352 from 130 donors over the course of two years.

The ethics board obtained the list of the donors and the amount of their donations as part of its investigation into a complaint against Nick Mosby that resulted in a finding that he had improperly solicited donations to the trust from “controlled donors” doing business with or seeking to do business with the city.

The ethics board refused to release the donor names, however, saying this information was being withheld under Section 4-336 of the MPIA, which  protects “information about the finances of an individual” from disclosure.

But not every record of expenditure of money by an individual constitutes information about that individual’s “finances.”

The compliance board determined that the list of donations was not within the scope of Section 4-336 of the MPIA and therefore was not protected from public disclosure.

Fletcher-Hill disagreed, but in doing so relied on a case that does not appear to support the reasoning behind his decision.

Kirwan v. The Diamondback

Section 4-336 of the MPIA generally prohibits the disclosure of “information about the finances of an individual, including assets, income, liabilities, net worth, bank balances, financial history or activities or creditworthiness.”

If the information is about an individual’s assets, income, liabilities or net worth, then the application of the statute to the information is clear. In Kirwan v. The Diamondback (1998), however, the Maryland Supreme Court cautioned that not every type of expenditure by an individual constitutes “information about the finances of an individual” within the meaning of Section 4-336.

The court decided after considerable analysis that records of parking fines or penalties were not protected from disclosure by Section 4-336, concluding that “Records of parking tickets would not seem to fall in the same category as ‘information about assets, income, liabilities, net worth, bank balances, financial history or activities, or creditworthiness.’”

The Maryland Supreme Court cautioned that not every type of expenditure by an individual constitutes “information about the finances of an individual” under Section 4-336.

Applying the same type of analysis, the compliance board concluded that records of contributions to a Section 527 political organization such as the Mosby trust did not fall into that category, either.

The board found that contributions to a Section 527 political organization are comparable to contributions to state campaign finance entities that must be made public under Maryland law and that construing a record of donations to a Section 527 political organization to be private financial information would be inconsistent both with federal law and with the intent of the MPIA.

Fletcher-Hill stated that the outcome of this case was controlled by another case decided by the Maryland Supreme Court, Immanuel v. Comptroller of Maryland (2016).

I don’t believe that it was.

Immanuel v. Comptroller of Maryland

In Immanuel, the court held that disclosure of information in the custody of the Maryland Comptroller listing the value of unclaimed property was prohibited by Section 4-336 in the absence of express statutory authority allowing its disclosure.

While the Abandoned Property Act requires publication of the names and addresses of the owners of abandoned property, it neither requires nor authorizes disclosure of its value.

The decision in Immanuel was based on the court’s determination that information on a property’s value was information about the assets of the owner, however, a crucial point Fletcher-Hill appeared to overlook.

Fletcher-Hill conceded that the transactions reported on the donor list “show little about any person’s overall financial position” but noted that “the same could be said of the minimal information concerning unclaimed funds held by the Comptroller, yet the Court concluded in Immanuel that the information was covered by Section 4-336.”

The Immanuel court had to look no further than the explicit language of the statute.

Information about assets is expressly protected. Information about donations to a Section 527 political organization is not.

Information on the value of an asset, no matter how great or how small, falls squarely within the express scope of Section 4-336.

Information about a fine or penalty imposed on an individual, or a record of a donation to a Section 527 political organization, does not.

Analysis specific to the facts of the case was required.

But other than a conclusory statement that donations to the Mosby trust constituted “financial activities” by the donors and therefore the list of donors was “information about the finances” of individuals, the Joint Memorandum Opinion issued by Fletcher-Hill contained no analysis of the type made in Kirwan v. The Diamondback.

State’s Reasoning Was Sound

The compliance board’s analysis, comparing Section 527 political organizations to state campaign finance entities, was a sound one.

Records of contributions to a Section 527 political organization are not protected from disclosure as private financial information under federal law, just as contributions to a state campaign finance entity are not protected from disclosure as private financial information under Maryland law.

In fact, the trustee of a Section 527 political organization is required to submit with its annual tax return an itemized list of contributions and expenditures, known as an IRS Form 8872, that must list every person who contributed at least $200 during the calendar year. The Form 8872 is published on the IRS website.

The fact that only contributors who meet a certain threshold must be listed on the Form 8872 does not mean that listing other contributors would violate federal privacy laws; it is just a reporting threshold for information that, at least under federal law, the public has the right to know.

The compliance board was correct that, where interpretation is required, it is unreasonable to construe Section 4-336 in such a way that it prevents disclosure of information that enjoys no protection from disclosure under federal law and, in some cases, must be affirmatively reported to the public.

The compliance board is the administrative agency charged by state law with administering the MPIA.

As such, I believe, Fletcher-Hill should have applied a deferential standard of review to the board’s determination that donations to the Mosby trust fell outside the scope of Section 4-336. Such deference is to be extended in a mixed question of law and fact, which this was.

Instead, he gave the board’s decision no weight at all.

Legislative Response Needed

Although I disagree with the decision by Fletcher-Hill in this case, it certainly is possible that another judge would rule the same way because of the imprecise language of the MPIA when it comes to certain information, including financial information.

In any event, the principle that voters have the right to know who is donating money to public officials and candidates for public office – whether in the form of contributions to campaign committees, legal defense funds, or college savings accounts for their children – is far too important to come down to the type of judgment calls that the compliance board and the court had to make in this case.

The General Assembly can and should fix that.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.