Maryland Public Information Act: Utilizing the MPIA Prior to Litigation in Personal Injury Cases

In every personal injury case, there is going to be government involvement of some sort that may result in documents, video footage or still images, inspection reports, or even construction plans or blueprints that may be relevant to establishing liability in the case. The Maryland Public Information Act (MPIA) states that “all persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.”1 Further, the MPIA “shall be construed in favor of allowing inspection of a public record.”2 A public record is any documentary material that “is made by a unit or an instrumentality of the State or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business.”3 The MPIA provides sample public records, including, but not limited to, films, correspondence forms, maps, photographs, recordings, and others.4 For the purposes of this article, and to provide some insight into how MPIA requests can be effectively drafted, this article adopts a broad interpretation of the term public record and will provide samples of successful requests that have been utilized in real personal injury cases. The majority of requests can be submitted online through the relevant county or public agency’s custodian of records and can be as broad or narrowly tailored as necessary depending on the materials sought. Utilizing MPIA requests in nearly every case boosts pre-litigation success and creates fewer unknowns during the course of litigation.

Automobile Accident Cases

For individuals who practice personal injury, oftentimes the practice involves representing clients who have suffered injuries in automobile accidents. For automobile accident cases, the government involvement is sometimes obvious. For example, officers from a police department respond to the scene of an accident and draft a police report that may or may not include additional notes, photographs, body worn camera footage, or dashcam footage. All of these materials are easy to obtain with simple requests to the police department and sometimes require a closer reading of the police report which may cite whether the responding officers took photographs or collected video footage from the scene. Less obvious are the materials obtained by the responding officers during their investigation, which may also be subject to inspection under the MPIA. For example, in a wrongful death action with contested liability and no living witnesses, a few telephone calls to the surrounding businesses at the subject intersection resulted in the knowledge that the collision had been captured on video. However, there was a single flash drive with the video footage that had been turned over to the responding officers. While mention of this video footage was omitted from the police report, we were able to obtain the video footage from the police department through an MPIA request. This request resulted in the tender of the tortfeasor’s policy limits when there had previously been a liability denial.

Additionally, there are other forms of footage that may be relevant in almost any automobile accident case including CCTV footage (readily accessible in Baltimore City), body worn camera footage, dashcam footage, and 911 audio recordings. The aforementioned materials can be easily obtained through an MPIA request to the investigating police department, while some exceptions do apply. Obtaining CCTV footage may provide a better understanding of how the collision occurred if it was captured on video, body worn camera and dashcam footage may provide a better understanding of the scene once officers responded, and 911 audio recordings may provide a better understanding of what the witnesses saw. Most counties provide an online system for submitting MPIA requests and many materials are provided at no cost (or low cost) depending on the volume of the records requested.

Premises Liability Cases

While many automobile accident cases have repeated fact patterns and oftentimes liability can be established swiftly based on the facts, premises liability cases may involve more complex fact patterns and obstacles to establishing liability. In these cases, additional investigative materials may be obtained prior to litigation and the discovery process. For example, in cases involving unsafe structures or collapsed buildings, there is going to be government involvement for the purposes of permitting and inspections. For example, in a building collapse case, with no obvious cause, requests to the relevant county’s inspection and permitting department yielded documents that demonstrated the building had been declared unsafe and required immediate abatement. Such documents would clearly be in the possession of the building owner and property management company but would not be overturned during the pre-litigation phase of the case. Getting an immediate start in obtaining relevant documents not only puts the attorney in a better position with having more knowledge as to why the incident occurred, but also serves as a negotiation tool to increase the value of the case if settlement negotiations are on the table. As another example, in a case with an improper and unsafe means of egress, documents revealing the property’s blueprints may be obtained as well and then can be explored as to whether such means of egress were developed to meet the proper standards and building safety codes. Having such materials early on into the case can also assist in identifying potential expert witnesses with the proper expertise.

Aside from flawed construction plans and implementation, other injuries may occur on private properties that seemingly have no government involvement at first glance. For example, in a case where an individual was tased at a grocery store, the video footage from the grocery would not have been provided prior to litigation. However, because officers had responded to the scene and downloaded the video themselves, the video footage was provided for inspection prior to any lawsuit being filed pursuant to an MPIA request to the investigating police department. Once the investigation was closed, video footage of the occurrence, from various angles, was produced and played at trial despite the grocery store’s refusal to participate in any of the litigation. This simple request resulted in a $2 million verdict, with jurors citing, following the trial, the importance of the video footage and the impact it had during deliberations. This tactic can be used in any case involving personal injury on a private property so long as a governmental function can be identified and articulated, and the materials sought can be properly identified to the governmental agency serving as the custodian of such materials.

Dog Bites

Another common fact pattern for personal injury attorneys involves dog bites. In Maryland, there are two circumstances that the handling attorney typically looks for: (1) if the dog was off-leash and therefore at-large; and (2) if the owner knew or should have known of the dog’s dangerous propensities. Both scenarios are contemplated in Maryland Courts & Judicial Proceedings § 3-1901. Under the first, the dog owner is liable for “any injury, death, or loss to person or property that is caused by the dog, while the dog is running at large” with certain exceptions.5 If one can establish the dog was running at large, and no exceptions apply, a finding on liability is indisputable. Under the second circumstance, it may be exceedingly difficult to establish a dog’s dangerous propensities, and its owner’s knowledge, absent litigation and discovery. However, each county’s animal control or animal services division may be in possession of critical records to establish whether a dog has exhibited vicious and dangerous prior behavior. For example, in a case involving a dog bite, a request to the relevant county’s animal control yielded prior bites involving the same dog—and each time it was returned to its owner. Such records not only established that the dog had dangerous propensities, but also that its owner had actual notice of its temperament.

Public Schools 

In the context of public schooling, the hope is that no child is going to be injured while trying to attend class or participate in extracurriculars. But, in the event that a child is injured at a public school, there are endless materials that could be sought and requested prior to litigation. While there may be pushback in obtaining school records, particularly if there’s reference to other minor students, the public school’s procedures, policies, or other written guidance may serve to bolster the liability argument. For example, in a case where a student’s foot was nearly severed due to the actions of his teacher, the school’s policies expressly forbid the teacher’s behavior that caused his injury. Policies and procedures drafted and circulated by the public school system undeniably involve government function and are subject to inspection under the MPIA. Once in litigation, excuses are quickly generated to explain away the behavior that may be violative of a school's own policies and procedures, but having the materials from the beginning of the case helps develop the framing and argument prior to the excuses being generated and the actions being explained away. When a school system is overtly violating its own policies and procedures, settlement may be an inevitable result.

Endless Options:

While the article has addressed a few key and common practice areas of personal injury, there are endless options to submit MPIA requests in nearly every case. At times, government involvement may be disguised as solely private action, but with creativity and outside of the box problem solving, government involvement is oftentimes present, and materials may be available for inspection with the right request. Aside from the examples referenced above, MPIA requests have resulted in materials obtained from various government agencies involved in the fields of transportation, occupational safety, and the health department and human services. While the article is merely an introduction to MPIA requests, with the hopes of encouraging the submission of MPIA requests in personal injury cases, each case is going to be unique and may require some innovation to locate government involvement. Simply put, materials are not given if they are not asked for, and by asking the right questions of the right government agencies, personal injury attorneys can increase case valuations during the pre-litigation phase of the case, well before the costs of litigation are incurred.

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1 Md. Code, Gen. Prov. § 4-103.

2 Id.

3 Id. at § 4-101.

4 Id.

5 Cts. & Jud. Proc. at § 3-1901(c).

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