executive privilege in Maryland

2026Ferndale argues that the court erred because the County waived the executive privilege by not asserting it in the custodians’ affidavits or the Vaughn index. 9 8F It further argues that, even if the executive privilege was not waived, the court still erred because it failed to follow the proper process for evaluating the executive privilege under Hamilton v. Verdow, 287 Md. 544 (1980), and Office of the Governor v. Washington Post Co., 360 Md. 520 (2000).

2026“The doctrine of executive privilege, in addition to protecting military and diplomatic secrets, is chiefly designed to protect confidential 32 advisory and deliberative communications to government officials.” Id. (citing Hamilton, 287 Md. at 558 ). 11 10F The executive privilege “differs from many other evidentiary privileges” in that “[i]t is for the benefit of the public and not the governmental officials who claim the privilege.” Md.

2026Ferndale argues that the court erred because the County waived the executive privilege by not asserting it in the custodians’ affidavits or the Vaughn index. 9 8F It further argues that, even if the executive privilege was not waived, the court still erred because it failed to follow the proper process for evaluating the executive privilege under Hamilton v. Verdow, 287 Md. 544 (1980), and Office of the Governor v. Washington Post Co., 360 Md. 520 (2000).

2026“The doctrine of executive privilege, in addition to protecting military and diplomatic secrets, is chiefly designed to protect confidential 32 advisory and deliberative communications to government officials.” Id. (citing Hamilton, 287 Md. at 558 ). 11 10F The executive privilege “differs from many other evidentiary privileges” in that “[i]t is for the benefit of the public and not the governmental officials who claim the privilege.” Md.

2007United States v. Burr, 25 Fed.

1980United States v. Burr, 25 Fed.

2017Where there has been an allegation of government misconduct, we have held a balancing process must be utilized, “weighing the need for confidentiality against the litigant’s need for disclosure and the impact of nondisclosure upon the fair administration of justice.” Id. at 563, 925 ; see also Ehrlich, 396 Md. at 568 , 914 A.3d at 794 (quoting Hamilton for the proposition that “courts have engaged in a balancing process, weighing the need for confidentiality against the litigant’s need for disclosure and the impact of nondisclosure upon the fair administration of justice.”); Office of Governor

2017Where there has been an allegation of government misconduct, we have held a balancing process must be utilized, “weighing the need for confidentiality against the litigant’s need for disclosure and the impact of nondisclosure upon the fair administration of justice.” Id. at 563 , 414 A.2d at 925 ; see also Ehrlich, 396 Md. at 568 , 914 A.2d at 794 (quoting Hamilton for the proposition that “courts have engaged in a balancing process, weighing the need for confidentiality against the litigant’s need for disclosure and the impact of nondisclosure upon the fair administration of justice.”); Offic

1992In Hamilton, again using Federal decisions as a base, the Court observed that executive privilege was based on the "valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties____” Id. at 558 , 414 A.2d 914 , quoting from United States v. Nixon, 418 U.S. 683, 705 , 94 S.Ct. 3090, 3106 , 41 L.Ed.2d 1039 (1974) (emphasis added).

1992In Hamilton, again using Federal decisions as a base, the Court observed that executive privilege was based on the "valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties____” Id. at 558 , 414 A.2d 914 , quoting from United States v. Nixon, 418 U.S. 683, 705 , 94 S.Ct. 3090, 3106 , 41 L.Ed.2d 1039 (1974) (emphasis added).

2026Later in the order, the court found that the fifteen e-mails were properly redacted because they contained “confidential executive discussions of an advisory nature,” which invoked language used in the County’s filings tied to the executive privilege under GP § 4-301. 1211F To the extent that the court concluded that the executive privilege attached to the e- mails, the court did not expressly undertake the burden-shifting and balancing review process as explained in Hamilton and Washington Post, supra. See Geier, 225 Md.

2026Bd. of Physicians v. Geier, 225 Md.

2026Att’y Gen., Maryland Public Information Act Manual, 3-35 (19th ed. 2024); see Stromberg Metal Works, Inc. v. Univ. of Md., 382 Md. 151, 163 (2004) (distinguishing the executive privilege from the “broader deliberative process privilege”). 11 The “executive privilege” “extends beyond the executive branch of government.

2015In addition, in the slightly different context of a tort claim action against the Governor (as opposed to an administrative agency), the Court of Appeals employed the collateral order doctrine to review and reverse a discovery order that required the chief executive to submit privileged documents, including documents as to which he had asserted the executive privilege, for 15 Compare Maryland-Nat’l Capital Park & Planning Comm’n v. Mardirossian, 184 Md.

2014See Laster v. State, 313 Md. 548, 551 , 546 A.2d 472 (1988) (stating that the Attorney General’s adoption of I.A.D. forms was in the Maryland Extradition Manual); State v. Smith, 73 Md.App. 378, 381 , 534 A.2d 371 (1987) (using the Maryland Extradition Manual to determine whether an arrest warrant was a detainer); Statchuk v. Warden, Maryland Penitentiary, 53 Md.App. 680, 689 , 455 A.2d 1000 (1983) (using the Maryland Extradition Manual as a reference about the procedures adopted by Maryland); Utt v. Warden, Baltimore City Jail, 48 Md.App. 486, 493 , 427 A.2d 1092 (1981) (using the Maryland Ex

2014See Laster v. State, 313 Md. 548, 551 , 546 A.2d 472 (1988) (stating that the Attorney General’s adoption of I.A.D. forms was in the Maryland Extradition Manual); State v. Smith, 73 Md.App. 378, 381 , 534 A.2d 371 (1987) (using the Maryland Extradition Manual to determine whether an arrest warrant was a detainer); Statchuk v. Warden, Maryland Penitentiary, 53 Md.App. 680, 689 , 455 A.2d 1000 (1983) (using the Maryland Extradition Manual as a reference about the procedures adopted by Maryland); Utt v. Warden, Baltimore City Jail, 48 Md.App. 486, 493 , 427 A.2d 1092 (1981) (using the Maryland Ex

2003“Under the language of the federal Freedom of Information Act, 5 U.S.C. § 552 (b)(5), which contains an exemption for interagency or intra-agency memoranda or letters and which is worded the same as § 10-618(b) of the [MPIA], the courts have held that the exemption is limited to documents created by government agencies or agents, or by outside consultants called upon by a government agency ‘to assist it in internal decisionmaking.’ ” Office of the Governor, 360 Md. at 552 , 759 A.2d 249 (quoting County of Madison v. United *321 States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir.1981)).

2000See also Porter Hayden v. Bullinger, 350 Md. 452, 461 , 713 A.2d 962, 966 (1998); Philip Morris v. Glendening, 349 Md. 660, 678 , 709 A.2d 1230, 1239 (1998); Cranford v. Montgomery County, supra, 300 Md. at 773-774 , 481 A.2d at 228-229 . 16 Consequently, if the records here at issue, or any part of them, are non-disclosable under the executive privilege doctrine, then such records or parts of records are exempt from disclosure under § 10-615(1) of the Maryland Public Information Act.

2000See also Porter Hayden v. Bullinger, 350 Md. 452, 461 , 713 A.2d 962, 966 (1998); Philip Morris v. Glendening, 349 Md. 660, 678 , 709 A.2d 1230, 1239 (1998); Cranford v. Montgomery County, supra, 300 Md. at 773-774 , 481 A.2d at 228-229 . 16 Consequently, if the records here at issue, or any part of them, are non-disclosable under the executive privilege doctrine, then such records or parts of records are exempt from disclosure under § 10-615(1) of the Maryland Public Information Act.

2000See also Porter Hayden v. Bullinger, 350 Md. 452, 461 , 713 A.2d 962, 966 (1998); Philip Morris v. Glendening, 349 Md. 660, 678 , 709 A.2d 1230, 1239 (1998); Cranford v. Montgomery County, supra, 300 Md. at 773-774 , 481 A.2d at 228-229 . 16 Consequently, if the records here at issue, or any part of them, are non-disclosable under the executive privilege doctrine, then such records or parts of records are exempt from disclosure under § 10-615(1) of the Maryland Public Information Act.

2000See also Porter Hayden v. Bullinger, 350 Md. 452, 461 , 713 A.2d 962, 966 (1998); Philip Morris v. Glendening, 349 Md. 660, 678 , 709 A.2d 1230, 1239 (1998); Cranford v. Montgomery County, supra, 300 Md. at 773-774 , 481 A.2d at 228-229 . 16 Consequently, if the records here at issue, or any part of them, are non-disclosable under the executive privilege doctrine, then such records or parts of records are exempt from disclosure under § 10-615(1) of the Maryland Public Information Act.

1989See Andre- sen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). 19 In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1989See Andre- sen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). 19 In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1989See Andre- sen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). 19 In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1989See Andresen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). [19] In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1989See Andre- sen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). 19 In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1989See Andresen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). [19] In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1989See Andre- sen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). 19 In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1989See Andresen v. Bar Association of Montgomery County, 269 Md. 313, 322-330 , 305 A.2d 845 , cert. denied, 414 U.S. 1065 , 94 S.Ct. 572 , 38 L.Ed.2d 470 (1973). [19] In Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), the Court of Appeals held, pursuant to a certified question from the United States District Court, that the doctrine of executive privilege is recognized in Maryland for intra-governmental advisory and deliberative communications.

1984See EPA v. Mink, supra, 410 U.S. at 89-91 , 93 S.Ct. at 837-38 , 35 L.Ed.2d at 133-34 ; Hamilton, supra, 287 Md. at 564 , 414 A.2d at 925 .

1984See EPA v. Mink, supra, 410 U.S. at 89-91 , 93 S.Ct. at 837-38 , 35 L.Ed.2d at 133-34 ; Hamilton, supra, 287 Md. at 564 , 414 A.2d at 925 .

1981Article 41, § 19 provides: "When a demand shall be made upon the Governor of this State by the executive authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any prosecuting officer in this State to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.” Although there is no constitutional right to an executive hearing, Bryson v. Warden, Baltimore City Jail, 287 Md. 467, 469-70 (1980), such a hearing is

1980Ethyl Corporation v. Environmental Protection Agency, 478 F.2d 47, 51 (4th Cir. 1973); McCormick on Evidence § 107 (2d ed. 1972); Carrow, Governmental Nondisclosure, 107 U. Pa. L.

1980As recently observed by the Supreme Court in United States v. Nixon, supra, 418 U.S. at 705 , "the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.” And later (id. at 708): "The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” See also United States v. Reynolds, supra, 345 U.S. at 6 n. 9; Dellums v. Powell, 561 F.2d 242, 246 (D.C.