# COMAR Title 17 — Department of Budget and Management

## Subtitle 02 — Office of the Secretary

### Chapter 01 — Public Information Act Requests

**Authority:** State Finance and Procurement Article, §3-303; State Government Article, §10-613; Annotated Code of Maryland

**Administrative History:** Effective date: March 26, 1984 (11:6 Md. R. 556)

**Administrative History:** Regulation .02B and F amended effective December 28, 1987 (14:26 Md. R. 2748)

**Administrative History:** Regulation .04 amended effective December 28, 1987 (14:26 Md. R. 2748)

**Administrative History:** Regulation .07 amended effective December 28, 1987 (14:26 Md. R. 2748)

**Administrative History:** Regulation .09A amended effective December 28, 1987 (14:26 Md. R. 2748)

#### Regulation .01 General.

*COMAR 17.02.01.01*

This chapter sets out procedures for filing requests with the Department of Budget and Management for the inspection and copying of records under the Public Information Act, State Government Article, §§10-611—10-630, Annotated Code of Maryland. It is the policy of the Department to facilitate public access to the records of the Department, when this access is allowed by law, by minimizing costs and time delays to persons requesting information.

#### Regulation .02 Definitions.

*COMAR 17.02.01.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Act” means the Public Information Act, State Government Article, §§10-611—10-630, Annotated Code of Maryland.

  (2) “Applicant” means a person or governmental unit that asks to inspect public records.

  (3) “Custodian” means an authorized person employed by the Department having personal custody and control of public records of the Department.

  (4) “Department” means the Department of Budget and Management.

  (5) “Records” means all paper, correspondence, forms, books, photographs, photostats, films, microfilms, sound recordings, maps, drawings, cards, tapes, recordings, computerized records, or other documentary materials, regardless of physical form or characteristics. “Records” includes all copies made or received by the Department in connection with the transaction of public business and includes the salaries of all employees of the Department.

  (6) “Secretary” means the Secretary of Budget and Management or the Secretary's designee.

  (7) “Working day” means a day other than Saturday, Sunday, or a State holiday.

#### Regulation .03 Who May Request.

*COMAR 17.02.01.03*

Any person may request to inspect or copy records of the Department.

#### Regulation .04 Authority to Grant or Deny Requests.

*COMAR 17.02.01.04*

A custodian may not grant or deny a request to inspect or copy records pursuant to this chapter without the prior approval of the Secretary.

#### Regulation .05 Necessity for Written Request.

*COMAR 17.02.01.05*

A. Inspections.

  (1) Except as otherwise provided in this regulation, the custodian shall generally make records available for inspection by an applicant without demanding a written request.

  (2) The custodian shall require a written request if the custodian reasonably believes that the Act or any other law may prevent the disclosure of the record to the applicant or that a written request will materially assist the Department in responding to the request.

B. Copies. If the applicant is requesting a copy of any record, the custodian may require a written request by the applicant.

#### Regulation .06 Contents of Written Request.

*COMAR 17.02.01.06*

A written request shall contain the applicant's name and address, shall be signed by the applicant, and shall reasonably identify by brief description the record sought.

#### Regulation .07 Filing Written Request.

*COMAR 17.02.01.07*

A written request shall be addressed to the custodian of the record. If the custodian is unknown to the applicant, the request may be addressed to the Secretary.

#### Regulation .08 Response to Request.

*COMAR 17.02.01.08*

A. If the custodian decides to grant a request for inspection or copying, the custodian shall produce the record for inspection or copying immediately or within a reasonable period, not to exceed 30 days from the date of the receipt of the request when this period of time is needed to retrieve the information.

B. Denial of Request.

  (1) If the custodian decides to deny the request, the custodian shall do so within 30 days from the date of receipt of the request and shall immediately inform the applicant of the denial.

  (2) If the request was in writing, the custodian shall immediately provide the applicant with a written statement of the grounds for the denial, which shall state the law or regulation under which access is denied, and all remedies for review of this denial available under the Act.

  (3) If the request was oral, the custodian shall inform the applicant either orally or in writing of the denial and the general basis for it.

C. If a request is made for a record not in the possession of the Department to a person who is not a custodian of the record, that person shall, within 10 working days from the date of the receipt of the request, so notify the applicant. If that person knows the name of the custodian of the record or the location or possible location of the record, this information shall also be given to the applicant.

D. With the consent of the applicant, any time limit imposed by §§A—C of this regulation may be extended for an additional period not to exceed 30 days.

E. Unless a different statute explicitly requires or bars disclosure of a particular record, custodians shall base their decisions on whether to grant or deny requests to inspect or copy records solely upon the Act and the regulations in this chapter.

#### Regulation .09 Privileged Records.

*COMAR 17.02.01.09*

A. The Department may deny inspection or copying pursuant to this chapter of records protected from disclosure by the doctrine of executive privilege. The privileged records may include, but are not limited to records:

  (1) Relating to budgetary and fiscal analyses, policy papers, and recommendations made by the Department or by any person working for the Department;

  (2) Provided by any other agency to the Department in the course of the Department's exercise of its responsibility to prepare and monitor the execution of the annual budget;

  (3) Relating to a State procurement when a final contract award has not been made or when disclosure of the record would adversely affect future procurement activity;

  (4) Of confidential advisory and deliberative communications relating to the preparation of management analysis projects conducted by the Department pursuant to State Finance and Procurement Article, §7-103, Annotated Code of Maryland.

B. A request for inspection or copying may only be denied according to this regulation by the Secretary or the Secretary's designee.

#### Regulation .10 Notification of Persons Who May be Affected by Disclosure.

*COMAR 17.02.01.10*

A. Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure of a record to the applicant that a request for inspection or copying of the record has been made. The custodian may consider the views of that person before deciding whether to disclose the record to the applicant.

B. If a record originated in a State agency other than the Department, the custodian shall notify the agency where the record originated that a request for inspection or copying has been made. The custodian may consider the views of that agency before deciding whether to disclose the record to the applicant.

#### Regulation .11 Records Destroyed or Lost.

*COMAR 17.02.01.11*

If a requested record has been destroyed or lost, the custodian to whom the application is made shall, within 10 working days from the date of receipt of the request, notify the applicant of this fact and explain in the response the reasons why the record cannot be produced.

#### Regulation .12 Review of the Denial.

*COMAR 17.02.01.12*

A. If a written request is denied by the custodian, the applicant may, within 30 days after receipt of the notice of the denial, request an administrative hearing.

B. If the applicant requests a hearing, the hearing shall be conducted by a hearing officer designated by the Secretary and the hearing shall be governed by the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. After the hearing, the hearing officer shall prepare a recommended decision for the Secretary. The Secretary shall issue the final decision of the Department.

C. If the hearing results in a total or partial denial of the written request, the applicant may file an appropriate action in the circuit court under State Government Article, §10-623, Annotated Code of Maryland.

D. If the applicant chooses not to request a hearing under §A of this regulation, the applicant may file an action for judicial enforcement under State Government Article, §10-623, Annotated Code of Maryland, without exhausting that administrative remedy.

#### Regulation .13 Disclosure Against Public Interest.

*COMAR 17.02.01.13*

If, in the opinion of the Secretary, disclosure of any record that is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the Secretary may temporarily deny the request in writing and apply within 10 working days of the denial to the appropriate circuit court for an order permitting continued denial or restriction of access. Notice of the application filed with the circuit court shall be served on the applicant in the same manner that is provided for service of process by the Maryland Rules of Procedure.

#### Regulation .14 Fees.

*COMAR 17.02.01.14*

A. The fee schedule for copying and certifying copies of records is as follows:

  (1) Copies. The fee for each copy is 15 cents per page if reproduction is made by a photocopying machine within the Department. If records are not susceptible to photocopying (for example, punch cards, magnetic tapes, blueprints, and microfilm), the fee for copies will be based on the actual cost of material and reproduction.

  (2) Certification of Copies. If a person requests that a copy of a record be certified as a true copy, an additional fee of $1 per page or, if appropriate, per item shall be charged.

  (3) Minimum Fee Charged. A charge may not be made if the total amount of the fee would be $1 or less.

B. Notwithstanding §A of this regulation, if the fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by a law other than the Act or this regulation, the prescribed fee shall be charged.

C. If the custodian is unable to copy a record within the Department, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Department. The custodian shall collect from the applicant a fee to cover the actual cost of reproduction.

D. Before copying a record, the custodian shall estimate the cost of reproduction and either obtain the agreement of the applicant to pay the cost or demand prepayment of any estimated fee before reproducing the record.

E. Except as provided in §F of this regulation, the Secretary may charge reasonable fees for official's or employee's time expended searching for requested records or for any time expended preparing records for inspection and copying.

F. The Secretary may not charge any search or preparation fee for the first 2 hours of official or employee time that is needed to respond to a request for information.

G. Upon request, the Secretary may waive or reduce any fee charged according to this regulation if the Secretary determines that the waiver or reduction is in the public interest. The Secretary shall consider, among other relevant factors, the ability of the applicant to pay the cost or fee.

H. If the applicant requests that copies be mailed or delivered to the applicant, the custodian may charge the applicant for the cost of postage or delivery to the applicant.

#### Regulation .15 Time of Inspection.

*COMAR 17.02.01.15*

An applicant may inspect any record that the applicant is entitled to inspect during the normal working hours of the Department.

### Chapter 02 — Form and Procedure for Petitions for Adoption, Amendment, or Repeal of Regulations and Petitions for Declaratory Rulings

**Authority:** State Finance and Procurement Article, §3-204; State Government Article, §§10-123 and 10-304; Annotated Code of Maryland

**Administrative History:** Effective date: March 26, 1984 (11:6 Md. R. 556)

#### Regulation .01 Petitions for Adoption, Amendment, or Repeal of Regulations.

*COMAR 17.02.02.01*

A. Who May File. Any interested person may file a petition with the Secretary for the promulgation, amendment, or repeal of any departmental regulation.

B. Form. The petition shall be in writing and shall contain a brief statement of the regulation or amendment the petitioner proposes and a reference to any prior regulation the petitioner seeks to have amended or repealed. The petition shall also include a brief statement of reasons in support of the proposed change and the name, address, and telephone number of the petitioner.

C. Submission, Consideration, and Disposition. The petition shall be filed with the Secretary at the main office of the Department of Budget and Management, for his consideration and disposition. Within 60 days after submission, the Secretary shall consider the petition and either deny it or initiate appropriate procedures to promulgate, amend, or repeal regulations in accordance with the petition. If he denies the petition in whole or in part, the Secretary shall notify the petitioner in writing, stating his reasons. If he determines to take action in accordance with the petition, he may modify any language suggested by the petitioner.

#### Regulation .02 Petitions for Declaratory Rulings.

*COMAR 17.02.02.02*

A. Who May File. Any interested person may petition the Secretary for a declaratory ruling with respect to the applicability of any regulation, order, or statute enforceable by the Department of Budget and Management to any person, property, or state of facts.

B. Form. The petition shall be in writing and shall contain a detailed statement of the facts under which the applicability of the regulation, order, or statute is questioned. It shall include the petitioner's name, address, and telephone number and an explanation of the petitioner's interest. The petitioner shall attach a certificate, given under oath, that the facts contained in the petition are true to the best of the petitioner's knowledge, information, and belief.

C. Submission, Consideration, and Disposition. The petition shall be filed with the Secretary at the main office of the Department of Budget and Management, for his consideration and disposition. The Secretary shall consider the petition and may issue the declaratory ruling requested. The Secretary shall notify the petitioner in writing of his decision, stating his reasons.

### Chapter 03 — Contested Cases Regulations

**Authority:** State Government Article, §10-204, Annotated Code of Maryland

**Administrative History:** Effective date: March 26, 1984 (11:6 Md. R. 556)

#### Regulation .01 Scope.

*COMAR 17.02.03.01*

This chapter applies to hearings which the Department is required to conduct by statute or regulation to adjudicate the rights, duties, statutory entitlements, or privileges of specific persons, except for hearings conducted pursuant to COMAR 17.01.02.

#### Regulation .02 Definitions.

*COMAR 17.02.03.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Department” means the Department of Budget and Management.

  (2) “Hearing officer” means an officer designated by the Secretary to conduct a hearing pursuant to this chapter.

  (3) “Notice” means a written document sent by certified mail, return receipt requested.

  (4) “Party” means the Department or any person whose rights are being adjudicated by the Secretary at a hearing.

  (5) “Secretary” means the Secretary of Budget and Management or his designee.

#### Regulation .03 Notice.

*COMAR 17.02.03.03*

A. Whenever the Department is required by statute or regulation to provide a hearing to a person, the Department shall send that person reasonable notice of the hearing.

B. Contents of Notice. The notice shall contain a:

  (1) Statement of the date, time, place, and nature of the hearing;

  (2) Statement of the person's right to be represented by counsel;

  (3) Statement of the legal authority and jurisdiction under which the hearing is to be held;

  (4) Reference to the particular sections of statute and regulation, including rules of procedure, involved; and

  (5) Short and simple statement of the matters which will be at issue at the hearing.

#### Regulation .04 Hearing Officer.

*COMAR 17.02.03.04*

Once a hearing has been scheduled, the Secretary shall designate a hearing officer who shall conduct the hearing and render a decision. The Secretary may designate himself as the hearing officer. If a person other than the Secretary is the hearing officer, the hearing officer may only issue a proposed decision according to Regulation .08B of this chapter.

#### Regulation .05 Prehearing Conference.

*COMAR 17.02.03.05*

A. Before the date of the hearing, the hearing officer may hold a prehearing conference, for which he shall give notice to all parties of the date, time, and place.

B. In the discretion of the hearing officer, persons other than parties may attend a prehearing conference.

#### Regulation .06 Hearing.

*COMAR 17.02.03.06*

A. Presentation of Hearing. Hearings shall be conducted generally in the following order, unless modified by the hearing officer during the prehearing conference or otherwise:

  (1) Call of the case by the hearing officer;

  (2) Opening statements by the parties;

  (3) Presentation of evidence in the following order:

    (a) The Department presents the basis for the Department's action or proposed action and other evidence,

    (b) Parties aggrieved by the Department's action or proposed action present their objections to the Department's action or proposed action and other evidence,

    (c) Other persons may present evidence at the discretion of the hearing officer,

    (d) Rebuttals in the same order.

B. The provisions of State Government Article, §§10-208—10-214, Annotated Code of Maryland, concerning the conduct of administrative hearings apply to these proceedings.

C. Powers of Hearing Officer. The hearing officer shall have all powers necessary to these ends, including, but not limited to, the following powers to:

  (1) Administer oaths and affirmations;

  (2) Rule upon offers of proof and receive relevant and material evidence;

  (3) Consider and rule upon all procedural and other motions appropriate to the proceedings;

  (4) Examine witnesses;

  (5) Maintain order, limit unduly repetitious testimony, and limit the time for presentations;

  (6) Grant a continuance for good cause shown;

  (7) Require parties to submit proposed findings of fact and conclusions of law;

  (8) Call witnesses.

D. Rights of Party. Every party shall have the right on every genuine issue of fact to:

  (1) Call witnesses and present evidence;

  (2) Cross-examine every witness called by a party, or the hearing officer or other person;

  (3) Submit rebuttal evidence;

  (4) Present summation and argument; and

  (5) File objections, exceptions, and motions, except that if a party is represented by counsel, all the submissions of evidence, examination and cross-examination of witnesses, and filing of objections, exceptions, and motions shall be done and presented solely by this counsel.

#### Regulation .07 Record and Transcript.

*COMAR 17.02.03.07*

A. The hearing officer shall prepare an official record of each hearing, which shall include all pleadings, exhibits, and other memoranda or material filed in the proceeding, and any testimony transcribed according to §B of this regulation.

B. A stenographic record of the proceedings or other form of verbatim record acceptable to the Department shall be made at the expense of the Department. This record need not be transcribed unless requested by a party, the hearing officer, or the Secretary. The cost of any typewritten transcripts of any proceedings, or part of them, shall be paid by the party requesting the transcript.

#### Regulation .08 Decisions.

*COMAR 17.02.03.08*

A. If the Secretary personally hears the evidence at the hearing, the Secretary shall issue a final decision within 90 days of the hearing.

B. Proposed Decision.

  (1) If the Secretary does not personally hear the evidence at the hearing, the hearing officer shall issue a proposed decision within 90 days of the hearing according to the provisions of State Government Article, §10-212, Annotated Code of Maryland, and a final decision may not be issued until the requirements of this section have been met.

  (2) The proposed decision, including the findings of fact and conclusions of law on which it is based, shall be mailed to all parties immediately after its issuance. The parties shall also be notified that oral argument before the Secretary may be requested by any party adversely affected by the proposed decision.

  (3) Within 15 days after receipt of the proposed decision, a party adversely affected by the proposed decision may file written exceptions to the proposed decision and request to present oral argument to the Secretary. Any party filing written exceptions or requesting oral argument shall include in the exceptions or request precise references to those sections of the record which the party wishes the Secretary to review. References to the record other than any transcript of testimony shall be indicated as R..., and references to the transcript of testimony as contained in the record shall be indicated as T.... If a party fails to provide these specific references, the Secretary may dismiss any request for oral argument and may base his review of the proposed decision on whatever portion of the record he deems appropriate.

  (4) If an oral argument is not requested, the Secretary shall issue his final decision within 60 days of the hearing.

  (5) If oral argument is requested, the Secretary shall set a date for oral argument within 30 days of the receipt of a request for oral argument and shall notify the parties of the date, time, and place for the argument.

  (6) The Secretary shall issue a final decision within 30 days of oral argument. Copies of the decision shall be mailed to all parties, return receipt requested.

C. All final decisions issued by the Secretary shall include findings of fact and conclusions of law in accordance with State Government Article, §10-214, Annotated Code of Maryland.

#### Regulation .09 Rehearings.

*COMAR 17.02.03.09*

A. Any party aggrieved by the decision and order rendered in a particular case may apply for rehearing within 10 days after receipt of the decision. Any action on this application lies in the discretion of the Secretary.

B. Unless otherwise ordered, neither the rehearing nor the application for it shall stay the enforcement of any order, or excuse the persons affected by it for failure to comply with its terms.

C. On rehearing, the Secretary may consider facts not presented in the original hearing, including facts arising after the date of the original hearing, and may by new order abrogate, change, or modify the original order.

#### Regulation .10 Appeal.

*COMAR 17.02.03.10*

Any party adversely affected by a final decision of the Secretary may obtain judicial review of the Secretary's decision as provided by law.