# COMAR Title 22 — State Retirement and Pension System

## Subtitle 01 — General Regulations

### Chapter 02 — Public Information Act Requests

**Authority:** General Provisions Article, §§4-101—4-601; State Personnel and Pensions Article, §§21-110, 21-123, 21-128, 21-504, and 30-208; Annotated Code of Maryland

**Administrative History:** Effective date: January 1, 1996 (22:26 Md. R. 2031)

**Administrative History:** Effective January 1, 1996, all of Title 22 was repealed and completely new regulations adopted. Codification and organization of the title were also completely changed. Consequently, the administrative histories of the revised Title 22 do not reflect regulatory activity before January 1, 1996. Refer to the old version of Title 22 or contact the Maryland State Archives for assistance.

**Administrative History:** Regulation .05G amended effective April 26, 2004 (31:8 Md. R. 647)

**Administrative History:** Regulations .01—.16 repealed and new Regulations .01—.12 adopted effective February 11, 2019 (46:3 Md. R. 108)

#### Regulation .01 Scope.

*COMAR 22.01.02.01*

This chapter sets out the procedures for filing and processing requests to the Retirement Agency for the inspection and copying of public records of the Board of Trustees or the Retirement Agency under the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland. It is the policy of the Board of Trustees to facilitate public access to the public records of the Board of Trustees and the Retirement Agency, when this access is allowed by law, by minimizing costs and time delays to applicants. It is also the policy of the Board of Trustees to safeguard the privacy of participants in any of the several systems by restricting access to records when access is denied or restricted by law. Further, it is the policy of the Board of Trustees to restrict access to certain investment records when access is denied or restricted by law.

#### Regulation .02 Definitions.

*COMAR 22.01.02.02*

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

B. Terms Defined.

  (1) “Act” means the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.

  (2) “Agency custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

  (3) “Alternate payee” means a former spouse named in an eligible domestic relations order that the Retirement Agency has accepted for administration pursuant to a notice of administration issued in accordance with State Personnel and Pensions Article, §21-502, Annotated Code of Maryland, and COMAR 22.01.03.04.

  (4) “Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

  (5) “Compliance Board” has the meaning stated in General Provisions Article, §4-101(c), Annotated Code of Maryland.

  (6) “Copy” means any form of reproduction using a photocopying machine or other reproduction technology, including a paper copy, an electronic copy, a printout, or an image.

  (7) “Executive Director” means the Executive Director of the Retirement Agency or the Executive Director’s designated representative.

  (8) “Indigent” has the meaning stated in General Provisions Article, §4-206(a)(2), Annotated Code of Maryland.

  (9) Investment Record.

    (a) “Investment record” means any record, regardless of physical form or characteristic, with information about:

      (i) A proposed purchase or program of purchases leading to a cumulative position in a security;

      (ii) An existing position in a security;

      (iii) The making, sale, or prepayment of a loan;

      (iv) Any proposed sale or program of sales leading to the elimination of a position in a security; or

      (v) The sale or purchase of real property or any interest therein.

    (b) “Investment record” includes:

      (i) Analyses, forecasts, and negotiations pertinent to the transactions described in §B(9)(a) of this regulation; and

      (ii) Information compiled by the Board of Trustees for conducting the review of the performance, form, and contents of the annuity contracts offered under the Optional Retirement Program established under State Personnel and Pensions Article, §30-201, Annotated Code of Maryland.

  (10) “Metadata” has the meaning stated in General Provisions Article, §4-205(a), Annotated Code of Maryland.

  (11) Person in Interest.

    (a) "Person in interest” means:

      (i) An individual who is the subject of a record;

      (ii) The individual’s representative who has been designated in writing by the individual who is the subject of a record; or

      (iii) If the subject of the record has a legal disability, the parent or legal representative of the individual.

    (b) “Person in interest” includes an alternate payee, to the extent a public record pertains to the benefits payable under an eligible domestic relations order as defined in COMAR 22.01.03.02B.

  (12) “Public Access Ombudsman” means the official appointed under General Provisions Article, Title 4, Subtitle 1B, Annotated Code of Maryland, to resolve disputes under the Act.

  (13) “Public record” has the meaning stated in General Provisions Article, §4-101(j), Annotated Code of Maryland.

  (14) “Reasonable fee” has the meaning stated in General Provisions Article, §4-206(a)(3), Annotated Code of Maryland.

  (15) “Retirement record” means any record, regardless of physical form or characteristics, indexed by a participant’s name, participant’s home address, Social Security number, or other identification number.

  (16) “Working day” means a day other than Saturday, Sunday, a State holiday, or a day or partial day when the Retirement Agency is closed to the public.

#### Regulation .03 Availability of Requested Public Records.

*COMAR 22.01.02.03*

A. The public records of, or in the custody of, the Board of Trustees or Retirement Agency are available for inspection and copying only to the extent provided under the Act and in this regulation.

B. Except for any portion of a retirement record that is exempt from disclosure under the Act or this regulation, a retirement record is available for inspection and copying:

  (1) By the person in interest;

  (2) By the appointing authority of the person in interest;

  (3) After the death of the person in interest, by:

    (a) The person in interest’s designated beneficiary;

    (b) The personal representative of the person in interest’s estate; or

    (c) Any person who demonstrates to the satisfaction of the Executive Director that the person has a valid claim to the benefits of the person in interest;

  (4) By a law enforcement agency in order to obtain the home address of a retired employee of the law enforcement agency when contact with a retired employee is documented to be necessary for official agency business; or

  (5) By the employees of a county unit that, by county law, is required to audit the retirement records for current or former employees of the county, if the county unit and the employees of the county unit agree to protect the confidentiality of the records in accordance with Regulation .10 of this chapter.

C. Medical records contained in an individual’s retirement record are available for inspection and copying by the person in interest, other than an alternate payee, but if the medical record relates to a psychiatric or psychological problem then the request shall be subject to the requirements of the Health-General Article, §4-304(a), Annotated Code of Maryland.

D. Elected or Appointed Officials.

  (1) In this section, “appointed official” means an individual appointed to a public office in the State or political subdivision of the State who meets the legal criteria for an appointed official as determined by the Office of the Attorney General.

  (2) The Agency custodian shall disclose to an applicant the amount of that part of a retirement allowance that is derived from employer contributions and that is granted to:

    (a) A retired elected or appointed official of the State; or

    (b) A retired elected official of a political subdivision.

  (3) The Agency custodian shall disclose to an applicant the benefit formula and the variables for calculating the retirement allowance of:

    (a) A current elected or appointed official of the State; or

    (b) A current elected official of a political subdivision.

E. Investment Records.

  (1) Except for any portion of an investment record that is exempt from disclosure under the Act or this regulation, and except as provided in §E(2) of this regulation, investment records are available for inspection and copying by an applicant when the:

    (a) Chief Investment Officer of the Retirement Agency determines that the release of information would not adversely affect the negotiation for, or market price of, a security or real property; and

    (b) Retirement Agency completes:

      (i) A proposed purchase or program of purchases leading to a cumulative position in a security;

      (ii) The making, sale, or prepayment of a loan;

      (iii) Any proposed sale or program of sales leading to the elimination of a position in a security; or

      (iv) The sale or purchase of real property.

  (2) The Agency custodian shall make available for inspection and copying that portion of an investment record that contains information compiled by the Board of Trustees for conducting the review of the performance, form, and contents of the annuity contracts offered under the Optional Retirement Program established under State Personnel and Pensions Article, §30-201, Annotated Code of Maryland.

  (3) With respect to the disclosure of records concerning an alternative investment, the Retirement Agency shall follow the Board of Trustees’ policies set forth in the Investment Policy Manual pursuant to State Personnel and Pensions Article, §§21-116(c) and 21-123(c), Annotated Code of Maryland.

F. Except as provided in §G of this regulation, the home address or telephone number of an employee of a unit or instrumentality of the State or of a political subdivision may not be available for inspection and copying by an applicant unless the:

  (1) Employee consents to inspection of the record; or

  (2) Unit or instrumentality that employs the employee determines that inspection is needed to protect the public interest.

G. Access to Public Employee Organizations.

  (1) This section applies only to the:

    (a) Employees’ Pension System;

    (b) Employees’ Retirement System;

    (c) Teachers’ Pension System; and

    (d) Teachers’ Retirement System.

  (2) Except as provided in §G(4) of this regulation, each year, the Retirement Agency shall release the information set forth in §G(3) of this regulation to a public employee organization if the public employee organization:

    (a) Submits a written request for the information;

    (b) Pays the applicable fee; and

    (c) Agrees to maintain the confidentiality of the records as provided in Regulation .10 of this chapter.

  (3) The Retirement Agency may release the following information to a public employee organization at no fee:

    (a) The name and last known address of each individual who became a retiree or began receiving a vested allowance in the last year;

    (b) The name and last known address of each retiree or former member receiving a vested allowance who died in the last year; and

    (c) Any change in address in the last year of a retiree or former member receiving a vested allowance.

  (4) If the public employee organization requests the information set forth in §G(3) of this regulation in such a manner and format that it cannot be obtained from a standard report that is regularly run by the Retirement Agency, the Retirement Agency may impose a reasonable fee for the information based upon the actual expense to the Retirement Agency for any special software programming and testing required.

  (5) At any time, a retiree, or former member who is receiving a vested allowance, may submit written instructions to the Retirement Agency to cease providing the information set forth in §G(3) of this regulation to a public employee organization.

  (6) On receipt of written instructions pursuant to §G(5) of this regulation, the Retirement Agency may not release information about the retiree, or former member who is receiving a vested allowance, to a public employee organization.

H. Notwithstanding §G(5) of this regulation, on request of a retiree organization that complies with State Personnel and Pensions Article, §21-128, Annotated Code of Maryland, the Board of Trustees shall provide retiree data to a mail processing center for the purpose of providing a direct mailing to a retiree of the several systems who is a member or eligible to become a member of the retiree organization.

#### Regulation .04 Application to Inspect, Copy, or Receive Information from Records.

*COMAR 22.01.02.04*

A. Except as provided in §B of this regulation, a person or governmental unit wishing to inspect a public record in the custody and control of the Retirement Agency shall submit a written application to the Agency custodian.

B. A person or governmental unit need not submit a written application to the Agency custodian if:

  (1) The requested public record is of a type that the Retirement Agency has designated and listed as being available to any applicant immediately on request; or

  (2) The Agency custodian waives the requirement for a written application.

C. The written request shall:

  (1) Contain the applicant’s contact information; and

  (2) Reasonably identify, by brief description, the public record sought.

D. The applicant shall address a written request for a record in the custody and control of the Retirement Agency or the Board of Trustees to the Agency’s designated representative for public records requests pursuant to General Provisions Article, §4-503, Annotated Code of Maryland. The name and contact information of the designated representative shall be posted on the Retirement Agency’s website.

E. An individual who calls the Retirement Agency for basic information from the individual’s retirement record may receive the requested information over the telephone if the individual provides the identifying information that the Retirement Agency requires.

F. On request, the Agency custodian shall state whether an individual is receiving a retirement or pension allowance.

G. An applicant’s identity, affiliation, and purpose for making the public record request are not required information for granting the request, except as necessary to assist in determining whether:

  (1) The applicant is a person in interest;

  (2) Denial of part of the requested record is appropriate under General Provisions Article, Title 4, Subtitle 3 Part IV, Annotated Code of Maryland; or

  (3) A requested fee waiver is appropriate.

#### Regulation .05 Response Granting Applicant’s Request.

*COMAR 22.01.02.05*

A. If the Agency custodian decides to grant a request for inspection in its entirety, the custodian shall produce the public record for inspection:

  (1) Immediately; or

  (2) Within a reasonable period, not to exceed 30 days after the date of the request, if that period is needed to retrieve the public record and conduct any necessary review.

B. If the Agency custodian reasonably believes that producing the public record will take more than 10 working days, the custodian shall state in writing within 10 working days after receiving the request:

  (1) The amount of time the custodian anticipates will be necessary to produce the public record;

  (2) The reason for that delay; and

  (3) An estimated range of fees that the Retirement Agency may charge to comply with the request.

C. Any time limit imposed under this regulation:

  (1) May be extended by not more than 30 days with the consent of the applicant; and

  (2) Shall be extended pending resolution of any dispute that the applicant has referred to the Public Access Ombudsman.

#### Regulation .06 Response Denying All or Part of Applicant’s Request.

*COMAR 22.01.02.06*

A. If the Agency custodian determines that a requested record no longer exists, then the Agency shall notify the applicant of that determination:

  (1) Immediately, if the custodian reached that determination on initial review of the application; or

  (2) Promptly after completing a search for potentially responsive public records and not more than 30 days after receiving the application.

B. If the Agency custodian decides to deny all or part of an applicant’s request on any basis other than the requested public record’s non-existence, the custodian shall within 10 working days give the applicant a written statement that provides:

  (1) The reasons, including the legal authority, for the denial;

  (2) For applications denied as contrary to the public interest under General Provisions Article, §4-343, Annotated Code of Maryland:

    (a) A brief explanation of why the denial is necessary; and

    (b) An explanation of why redacting information would not address the reasons for the denial;

  (3) For applications denied as misdirected to an individual who is not the custodian:

    (a) The name of the public record’s custodian, if known; and

    (b) The public record’s actual or possible location, if known;

  (4) A brief description of any undisclosed public record or category of public records that will not disclose the protected information but will enable the applicant to assess the applicability of the legal authority for the denial; and

  (5) Notice of the remedies under the Act for review of the denial.

C. If the Agency custodian denies an applicant’s request in part, the custodian shall allow inspection of any part of the record that is subject to inspection.

D. Any time limit imposed under this regulation:

  (1) May be extended by not more than 30 days with the consent of the applicant; and

  (2) Shall be extended pending resolution of any dispute that the applicant has referred to the Public Access Ombudsman.

E. A custodian may not ignore an application to inspect public records on the ground that the application was intended for purposes of harassment.

#### Regulation .07 Format of Public Records.

*COMAR 22.01.02.07*

A. Except as otherwise provided in this section, if an applicant who is authorized to inspect a public record requests a copy, printout, or photograph of the public record, the Agency custodian shall provide the applicant with:

  (1) A copy, printout, or photograph of the public record; or

  (2) If the custodian does not have facilities to reproduce the public record, access to the public record to make the copy, printout, or photograph.

B. The Agency custodian shall provide an applicant with a copy of the public record in a searchable and analyzable electronic format if:

  (1) The public record already exists in a searchable and analyzable electronic format;

  (2) The applicant requests a copy of the public record in a searchable and analyzable electronic format; and

  (3) The custodian can provide a copy of the public record, in whole or in part, in a searchable and analyzable electronic format that does not disclose confidential or protected information for which the custodian must or may deny inspection in accordance with the Act or this regulation.

C. The Agency custodian may have metadata removed from an electronic document before providing the electronic document to an applicant by:

  (1) Using a software program or function; or

  (2) Converting the electronic document into a different searchable and analyzable format.

D. This regulation may not be construed to:

  (1) Require the custodian to reconstruct a public record in an electronic format if the custodian no longer has the public record available in an electronic format;

  (2) Allow a custodian to make a public record available only in an electronic format;

  (3) Require a custodian to create, compile, or program a new public record; or

  (4) Require a custodian to release an electronic record in a format that would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which the record is maintained.

E. If a public record exists in a searchable and analyzable electronic format, the act of a custodian providing a portion of the public record in a searchable and analyzable electronic format does not constitute creating a new public record.

F. The copy, printout, or photograph shall be made:

  (1) While the public record is in the custody of the custodian;

  (2) Whenever practicable, where the public record is kept; and

  (3) Within any reasonable time schedule that the Agency custodian may choose to set.

#### Regulation .08 Fees.

*COMAR 22.01.02.08*

A. Fee Schedule for Certifying and Copying a Public Record.

  (1) If the public records are susceptible to photocopying, the charge for each copy of a document is:

    (a) 25 cents per page for copies made on a photocopying machine within the Retirement Agency offices; or

    (b) Based on actual costs of reproduction if the copies could not be made on a photocopying machine within the Retirement Agency offices.

  (2) If the public records are not susceptible to photocopying, for example, diskettes, magnetic cartridges, magnetic tapes, drawings, maps, blueprints, microfilm, or photographs, the fee for copies will be based on the actual costs of reproduction.

  (3) If the public record requested to be reproduced is more than 25 pages, the Agency custodian shall charge a $3.50 per hour photocopying processing fee in addition to the per page fee.

  (4) If an applicant requests that a copy of a public record be certified as a true copy, the Agency custodian shall charge an additional fee of $1 per record.

  (5) If the Agency custodian is required to provide a computer printout, the charge for the printout shall include all related expenses associated with the time expended to produce the computer printout.

  (6) Search, Review, and Preparation Fees.

    (a) Except as provided in §B(6)(b) of this regulation, the Agency custodian may charge reasonable fees for the time that an official or employee of the Agency, or an employee of the Office of the Attorney General on behalf of the Agency, spends to search for public records and review and prepare them for inspection and copying, in addition to the cost for reproduction.

    (b) The Agency custodian may not charge a fee for the first 2 hours that are needed to search for a public record and prepare it for inspection.

    (c) The Agency custodian shall determine the search, review, and preparation fees by multiplying the employee’s salary, prorated to an hourly basis, by the actual time attributable to the search for, review of, and preparation of public records for inspection and copying.

B. Payment of Fees.

  (1) The Agency custodian shall:

    (a) Estimate the cost of reproduction, including any search fee; and

    (b) Advise the applicant of the estimated costs.

  (2) Before reproducing a public record, the Agency custodian shall:

    (a) Obtain the written agreement of the applicant that the cost shall be paid; or

    (b) Request prepayment of the estimated fee before reproducing the public record.

  (3) Subject to §C of this regulation, the Agency custodian shall provide the requested and completed copies and printouts only on:

    (a) Payment of all applicable fees by the applicant; and

    (b) If an applicant requests transmittal of the copies by mail or delivery to the applicant, payment of or written agreement to pay the cost of postage or delivery.

C. The Executive Director may waive or reduce any fee charged under this regulation, on request, if the Executive Director determines that the:

  (1) Item requested is promotional in nature, is routinely distributed to the public, or may be reproduced free of charge;

  (2) Applicant is indigent and files an affidavit verifying facts that support a claim of indigency; or

  (3) Waiver or reduction is in the public interest based upon relevant factors including the applicant’s ability to pay the fee.

#### Regulation .09 Time and Place of Inspection.

*COMAR 22.01.02.09*

A. An applicant may inspect a public record during the normal working hours of any working day of the Retirement Agency.

B. The place of inspection shall be the place where the document is located unless the Agency custodian determines that another place of inspection is more suitable and convenient after taking into account any expressed wish of the applicant.

#### Regulation .10 Protection of Privacy and Confidentiality.

*COMAR 22.01.02.10*

A person entitled by law to inspect or obtain copies of any records set forth in Regulation .03B(4) and (5), F, and G of this chapter shall, before inspection, in writing:

A. Specify the basis for the request;

B. Agree not to release any information derived from the inspection to a third party without the express prior agreement, in writing, of the Agency custodian; and

C. Agree to the entry of an appropriate protective order in a court of competent jurisdiction ensuring that information may not be disclosed generally.

#### Regulation .11 Maintenance of Records; Relevance of Material.

*COMAR 22.01.02.11*

A. The Agency shall maintain records which are not subject to public inspection under this chapter in a manner which assures the right to privacy of the individual who is the subject of the record.

B. The Retirement Agency may retain in its records only information which is relevant and necessary to accomplish the purpose of the Board of Trustees and the Retirement Agency.

#### Regulation .12 Referral and Review of Disputes.

*COMAR 22.01.02.12*

A. If the Retirement Agency’s fee for responding to an applicant’s public record request exceeds $350 and the applicant considers it unreasonable, the applicant may file a complaint with the Public Information Act Compliance Board, and appeal from a decision of that Board, as stated in General Provisions Article, Title 4, Subtitle 1A, and §4-362, Annotated Code of Maryland.

B. The applicant may refer to the Public Access Ombudsman, as stated in General Provisions Article, Title 4, Subtitle 1A, a dispute concerning any of the following issues:

  (1) The custodian’s application of an exemption from disclosure;

  (2) Redactions of information in the public record;

  (3) The failure of the custodian to produce a public record in a timely manner or to disclose all records relevant to the request;

  (4) Overly broad requests for public records;

  (5) The amount of time a custodian needs, given available staff and resources, to produce public records;

  (6) A request for or denial of a fee waiver; and

  (7) Repetitive or redundant requests from an applicant.

C. An applicant who is denied a requested public record or a requested copy, printout, or photograph of a public record may file a complaint with the circuit court for the county where:

  (1) The complainant resides or has a principal place of business; or

  (2) The public record is located.