Confidentiality is important for landlords and tenants in commercial lease transactions. For that reason, a recent Maryland Court of Appeals decision should be kept in mind when leases and other documents are submitted to public agencies.

When information is voluntarily submitted to a government agency, the court ruled, it may be subject to release to the public under certain conditions under the Maryland Public Information Act (MPIA), which the court decided closely aligns with federal law. The May 22, 2017, decision in Amster v. Baker provides a warning to all commercial parties to consider what information is being volunteered to government entities.

The case involved a suit brought by citizen Jayson Amster against Prince George's County to gain access to a lease between Whole Foods and Calvert Tract LLC, the landowner. A redacted version of the lease was voluntarily submitted by Calvert to the local government during the entitlement process. Amster alleged that Calvert Tract used deadlines from its Whole Foods lease to pressure the local government into expediting an application for a variance.

This decision further clarifies the MPIA by establishing what qualifies as an exemption from disclosure of confidential commercial information and establishing a new rule regarding voluntarily disclosed confidential information. MPIA requires government entities to allow inspection of non-confidential records. MPIA was modeled after the Freedom of Information Act (FOIA), which requires federal agencies to allow inspection of records unless they fall under specific exemptions and exclusions.

Relying heavily on federal cases interpreting FOIA, the Court of Appeals held that commercial information is confidential if it would not usually be released to the public by the parties involved. Examples of this traditionally include financial information, trade secrets, and commercial information. Neither FOIA nor MPIA exempt an entire document from being released if the document has confidential information. The information should be redacted and the document should then be handed over to the requesting party. Furthermore, the burden is on the party claiming confidentiality to explain to the court what information is exempted.

The decision is helpful because it clarifies the standards for determining whether commercial information voluntarily provided to the government falls within the MPIA's confidential commercial information exemption. Parties can adjust to the court's new rule by monitoring their communication strategies and redacting information before voluntarily disclosing to government entities. The decision also puts Maryland law more in line with federal law, making regulation more uniform. Commercial clients are advised to comply with federal law to ensure basic compliance with Maryland law regarding information disclosure.

Ballard Spahr real estate attorneys regularly assist clients in commercial lease transactions. Our work covers the full range of issues for landlords and tenants nationwide in a variety of industries, who rely on us to protect their interests in the industrial, commercial, office, retail, and special use spaces.

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