Marilyn and Nick Mosby
Baltimore Ethics Board: Don’t make a mockery of Maryland’s Public Information Act
The decision to redact the Mosby legal defense fund donors’ names should be changed. It’s legally indefensible and doesn’t make common sense. [OP-ED]
Above: Some of the donations – one for $5,000 – to the Mosby Legal Defense Fund released by the Baltimore City Board of Ethics – all with the names redacted. (Baltimore Ethics Board)
A Baltimore City agency has once again denied the public access to information that it has the right to know.
The Board of Ethics released a list of more than 130 donations to a legal defense fund set up for City Council President Nick Mosby and his wife, former Baltimore State’s Attorney Marilyn Mosby.
But the ethics board redacted the names of all of the donors.
It claims that failure to do so would have revealed information about the “finances” of the donors in violation of the Maryland Public Information Act (MPIA).
The legal argument is unconvincing, and it flies in the face of common sense.
The board concluded that Nick Mosby violated the city ethics law by soliciting donations to the fund from “controlled donors,” meaning people who seek to do business with the city.
• Nick Mosby violated city ethics law on gift solicitations (5/12/22)
A Baltimore Circuit Court judge concurred, and Mosby was ordered to turn over a list of all donors to the fund.
But all the public is entitled to is a listing of dollar amounts with no names attached?
That tells city residents nothing and makes a mockery of the MPIA.
Financial vs Political Activities
The legal defense fund was set up as a tax-exempt political organization named “The Mosby 2021 Trust.” As such, it’s governed by Section 527 of the Internal Revenue Code.
In my opinion, donations to Section 527 political organizations formed for the benefit of specific candidates for local or state office – like the Mosby 2021 Trust – are not protected from disclosure by the MPIA.
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.”
The prohibition is conditioned on the provision “unless otherwise provided by law” in Section 4-328 of the MPIA.
Here we have case law: In Kirwan v. The Diamondback (1998), the Maryland Supreme Court clarified that not every type of expenditure by an individual constitutes protected “financial activity,” and each type of expenditure must be evaluated to determine if it bears on an individual’s “finances” within the intent of the statute.
The court held that payment of fines, for example, does not.
The General Assembly has made crystal clear that the public has an absolute right to know who is providing financial support for political candidates.
Legislators have made it clear that the public has an absolute right to know who is providing financial support for political candidates.
The Maryland legislature never intended voluntary donations to political candidates or political organizations formed to support those candidates to constitute financial activity within the scope of section 4-336.
Long story short, while your contributions to your IRA are protected from disclosure by Section 4-336, your contributions to political candidates or to ballot initiative committees are not.
The latter are listed on an online database maintained by the Board of Elections and are governed by a complex series of state laws and regulations aimed at assuring the transparency of campaign financing.
The organizers of the Mosby Trust described its purpose as “the prevention of any attempt to influence the selection, nomination, election or appointment of any individuals to any federal, state or local public office(s).”
The description is an adaptation of the language in Section 527 that limits the tax exemption for an organization to income derived from “the function of influencing or attempting to influence the selection, nomination, election or appointment of any individual to any Federal, State or local public office.”
The organization’s website identified its specific purpose as helping to pay for the Mosbys’ legal defenses during a federal criminal investigation.
Donors to Section 527 organizations have no categorical right to nondisclosure of their donations under federal law.
In fact, a Section 527 organization is required by law to report to the IRS all contributors who donate an aggregate amount of $200 or more to the organization during any given calendar year.
That information – including the names of the donors – is made available on the IRS website for public inspection.
What FOIA Says
If the list in question were in the hands of a federal regulatory agency rather than a city one, there is no doubt that it would be made available to the public.
Under the federal Freedom of Information Act (FOIA), the names of donors would be withheld only if disclosure constituted “a clearly unwarranted invasion of personal privacy” determined by “balancing the privacy interest that would be compromised by disclosure against any public interest in the requested information.”
Assuming that individuals have a privacy interest in their donations to the Mosby Trust, it is far outweighed by the interest of city voters in knowing who contributed money to “influence or attempt to influence” the elections for City Council president and state’s attorney.
The ethics board had ample reason to conclude that a donation to the Mosby Trust was not the type of expenditure protected from disclosure by Section 4-336 of the MPIA.
Fixing a Mistake
In his email to The Brew explaining the decision to redact the names from the list, Ethics Board Director J. Christoph Amberger quotes a Maryland Supreme Court case, Immanuel v. Comptroller of Maryland (2016).
It points out that the purpose of the MPIA is “to allow Marylanders to learn about what their government is doing, not to permit unfettered access to information that the government holds about individual citizens.”
But first of all, Immanuel involved access to information about abandoned property reported to the State Comptroller.
Public interest in learning about campaign financing is far more compelling than its interest in finding out about abandoned property.
Secondly, obtaining an unredacted list will allow Baltimoreans to determine for themselves how well Amberger’s agency is doing in protecting them against unethical behavior by Mosby.
Which is exactly the type of thing the MPIA was enacted to do.
Donations Over $200
Finally, Immanuel indicates that, at best, the board was wrong to redact the names of donors who gave $200 or more in 2021 or 2022.
The court held that the value of abandoned property constitutes information about an asset that is generally protected from disclosure by Section 4-336.
Because state law requires the comptroller to publicize certain information about property valued at $100 or more, however, there is no privacy interest regarding information about ownership of these properties.
Similarly, donors who contribute a total of at least $200 to a Section 527 political organization in any given calendar year have no privacy interest in those donations under federal law, even if it is assumed that smaller donors do.
So, even under the ethics board’s own interpretation of the MPIA, there was no justification for redacting their names.
One donor gave $5,000 to the Mosby Trust. With the name blacked out, we don’t know who that was.
A look at the redacted list the board released shows donations of hundreds of dollars at a time were not uncommon, with some even higher.
On August 24, 2021, for example, a “controlled donor” gave the Mosby Trust $5,000.
With the person’s name blacked out, all we know is that the issuing bank in that case was the State Employees Credit Union of Maryland and the donor used a 21128 zip code, the Perry Hall area.
The unnamed donor was the resident agent of a city-certified minority or woman-owned business, the ethics board’s report said.
Does the ethics board really want to take the position that the pubic has no right to know who gave that much in support of two powerful elected officials?
The ethics board should reconsider its decision that donations to the Mosby Trust constituted financial activity protected from disclosure by Section 4-336.
At the very least, the board should release a new list with the names of the donors who gave $200 and more.
• David. A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: email@example.com and Twitter @dplymyer.