Anton’s Law faces first legal challenge in lawsuit filed by Montgomery County FOP, with the potential to impact the law’s scope state wide

Anton's Law Challenged

MARYLAND- The Maryland Coalition for Justice and Police Accountability (MCJPA) has filed a motion to intervene in a Fraternal Order of Police of Montgomery County case with the potential to limit the scope of state’s law to unseal police records, known as Anton’s Law and is asking the Montgomery court to unseal proceedings and to reject the FOP lawsuit, which they could lead to the law being weakened across the state.

The Lawsuit/FOP Agreement

Under Anton’s law, police conduct records are now longer granted special protection as internal documents, and are able to be accessed via Public Information Requests handled by the Custodian of Records, with claims processed immediately and a warning given to the subject of a complaint only after the request has been granted and the files transferred to the requesting party.

According to the ACLU of Maryland, the current lawsuit seeks to undermine this legal process, and in a separate incident of non-compliance, the FOP and Montgomery County came to a side deal that Staff Attorney  for the MD ACLU David Rocah tells 47ABC calls a “head-on assault of Anton’s Law.”

“The side deal that the Montgomery county and the police union entered into with the county after the passage of Anton’s law is aimed to impede and frankly gut those new disclosure obligations that Anton’s law put in place,” Rocah said.

According to Rocah, that deal would give notice to the subjects of the MPIA requests, at the point of request rather than at the point of delivery, and would enforce a 10-day delay on documents being made available to allow the subject of the request to counter-sue.

“Immediately means immediately not ten days later,” Rocah said adding “The county had no obligation to negotiate this type of an agreement and no obligation to enforce one, it is outside of their scope and is not done in any other instance, it’s appalling to see these county governments colluding with the police Union to undermine this democraticly enacted law.”

Rocah tells 47ABC that similar agreement was also reached in Baltimore County.

He believes the current lawsuit is improperly filed as it undermines the “sole and complete intention of Anton’s Law.”

The MD ACLU’s position in the case is that the FOP lawsuit is invalid as the kind of legal action filed by the FOP, known as a reverse MPPIA request, only applies for the subjects of sealed records.

“The FOP’s lawsuit is improper because it’s based on the idea these records are still prohibited from disclosure, that’s the basis of the suit but the whole purpose of Anton’s law was to say these records were no longer prohibited from disclosure and that law is in effect,” Rocah said.

He tells the FOP has also ammended their suit to include a constitutional challenge to the law.

“We believe there is not a legitimate challenge on constitutional grounds, as these arguments were raised by the FOP when the law was being conisdered and by FOPs across the nation when similar laws are enacted,” Rocah said.

47ABC reached out to the Montgomery County FOP for comment.

In a statment to 47ABC Montgomery County Fraternal Order of Police Lodge 35 Captain Lee Holland said:

The suit was filed on behalf of Officer John Doe as the county attempted to release records that Officer Doe and Lodge 35 believe are technical infractions. Under Anton’s Law technical infractions are still considered personnel records and are not subject to MPIA. Unfortunately the language for technical infraction is subjective and the course to settle these disputes is through the court system by filing a “reverse MPIA” which is found in the Attorney Generals handbook on the MPIA.”

Anton’s law however does make specific exemption for even Techinical Infractions when “a matter of public concern.”

Rocah says the suit would in effect take power away from the Custodian of Records, and place powers of discretionary release back with the FOP, against wishes of lawmakers.

“They are seeking to second guess and supplant the discretionary decision and set themselves up as a substitute decision maker making those decisions that’s what’s improper,” Rocah said

STATEWIDE IMPACT

While the case is still in Montgomery County, the outcome could have statewide impacts on the law.

Rocah tells 47ABC that while the initial decision from the lower court does not immediately impact other counties, FOPs, or police departments, and appellate decision in the case would.

He expectes either the ACLU or the FOP to appeal the decision if it goes against them.

‘That appellate decision is binding and sets a precedent for the state, this will be the first decision in the case is it sets an important precedent and is a statewide effort by the fop which is why the lawsuit is important and needs to be nipped in the bud,” Rocah said.

Rocah says the constitutional challenge could have the potential to result in an injunction from a higher court, though he says he finds this outcome unlikely, noting that the FOP has yet to file a preliminary injuction on behalf of the suit as well.

Privacy Concerns

While the case concerns the question of access to once private documents, the issue of transparency of the case itself is also a subject of contention between the two parties, with the FOP asking the Montgomery County judge to keep filings and records of the case sealed to the public, an action the ACLU is pushing back on.

“If ever there should be a case that is not sealed, it should be the case that pretains the states most comprehensive acountability and transparency law in recent years being challenged,” Rocah said.

The case is expected to be heard in court again this coming January.

 

 

 

 

Categories: Local News, Local Politics, Maryland