# COMAR Title 26 — Department of the Environment

## Subtitle 01 — General Provisions

### Chapter 04 — Filing Requests for Inspection and Copying of Records

**Authority:** State Government Article, §10-611 et seq., Annotated Code of Maryland

**Administrative History:** Effective date: October 12, 1981 (8:20 Md. R. 1635)

**Administrative History:** Regulations .01, .02B, and .14 amended, .07 and .09 repealed, and new .07 adopted effective July 16, 1984 (11:14 Md. R. 1250)

**Administrative History:** Regulations .02B and .03 amended effective July 29, 1985 (12:15 Md. R. 1516)

**Administrative History:** Regulation .07-1 adopted effective July 29, 1985 (12:15 Md. R. 1516)

**Administrative History:** Regulations .07-1 and .08 recodified to Regulations .08 and .09

**Administrative History:** Chapter recodified from COMAR 10.01.08 to COMAR 26.01.04

**Administrative History:** Chapter revised effective March 18, 1991 (18:5 Md. R. 595)

**Administrative History:** Regulation .02 amended effective October 4, 1999 (26:20 Md. R. 1548)

**Administrative History:** Regulation .07E adopted effective October 4, 1999 (26:20 Md. R. 1548)

**Administrative History:** Regulation .13 amended effective October 4, 1999 (26:20 Md. R. 1548)

#### Regulation .01 General.

*COMAR 26.01.04.01*

These regulations set out the procedures for filing requests with the Department of the Environment for the inspection and copying of records under State Government Article, §§10-611—10-628, Annotated Code of Maryland. It is the policy of the Department to facilitate public access to records, when this access is allowed by law, by minimizing costs and time delays to persons requesting information.

#### Regulation .02 Definitions.

*COMAR 26.01.04.02*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Act” means State Government Article, §§10-611—10-628, Annotated Code of Maryland.

  (2) “Applicant” means any person requesting disclosure of public records.

  (3) “Compelling need” means that failure to obtain the requested information on an expedited basis could reasonably be expected to:

    (a) Present an imminent threat to human life or safety;

    (b) Present an imminent threat of loss of due process rights;

    (c) Cause significant financial loss; or

    (d) Be of immediate public interest.

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

  (5) “Department” means the Department of the Environment.

  (6) “Facility” means a hospital or related institution as defined in Health-General Article, §19-301.

  (7) “Official custodian” means the person who is responsible for the maintenance, care, and keeping of the public records of the Department. Unless otherwise provided by law, the Secretary of the Environment is the official custodian.

  (8) “Public records” means any paper, correspondence, form, book, photograph, photostat, film, microfilm, sound recording, map, drawing or other written document, regardless of physical form or characteristics. “Public records” includes all copies that have been made or received by the Department in connection with the transaction of public business and includes the salaries of all employees of the Department, both in the classified and nonclassified service.

  (9) “Secretary” means the Secretary of the Environment.

  (10) “Working day” means every day except Saturdays, Sundays, and State holidays.

  (11) “Written documents” means all books, papers, maps, photographs, cards, tapes, recordings, computerized records, or other documentary material, regardless of physical form or characteristics.

#### Regulation .03 Who May Request.

*COMAR 26.01.04.03*

Any person may request to inspect or copy any public record that is in the custody and control of the Department.

#### Regulation .04 Necessity for Written Request.

*COMAR 26.01.04.04*

Normally, the custodian shall make public records available for inspection by an applicant without demanding a written request. However, the custodian may 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 when the custodian believes that a written request will materially assist the Department in responding to the request. If the applicant is requesting a copy of any public record, the custodian may require a written request.

#### Regulation .05 Contents of Written Request.

*COMAR 26.01.04.05*

A written request shall contain the applicant's name, address, telephone number, and signature, and shall briefly describe the record sought.

#### Regulation .06 Filing the Request.

*COMAR 26.01.04.06*

A written request for a record in the custody and control of the Department shall be addressed to the custodian of the record. If the custodian of the record is unknown to the applicant, the request may be addressed to the Secretary.

#### Regulation .07 Response to Written Request.

*COMAR 26.01.04.07*

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

B. If the custodian decides to deny the written request, he shall do so within 30 days of the written request and immediately upon deciding to deny the request, notify the applicant of the denial. The notification shall be in writing and shall state the reason for denying the request and include a citation to the statute or regulation that provides the basis for the denial.

C. If a requested public record is not in the custody or control of the person to whom written application is made, that person shall, within 10 working days 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. Expedited Processing.

  (1) If the applicant demonstrates a compelling need for the information, a request for expedited processing may be granted.

  (2) A demonstration of a compelling need shall be:

    (a) Made in the request for expedited processing; and

    (b) Certified under oath to be true and correct by the applicant.

  (3) Determinations to grant or deny expedited processing are within the discretion of the Department and shall be made on a case-by-case basis.

#### Regulation .08 Notification of Persons Who May Be Affected by Disclosure.

*COMAR 26.01.04.08*

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.

#### Regulation .09 Records Temporarily Unavailable.

*COMAR 26.01.04.09*

If the public record requested is in the custody and control of the person to whom written application is made, but is not immediately available for inspection or copying, the custodian shall notify the applicant of this fact within 10 working days of the receipt of the request and shall set a date and time, within a reasonable period of time, when the custodian will make the record available to the applicant for inspection or copying.

#### Regulation .10 Records Destroyed or Lost.

*COMAR 26.01.04.10*

If the requested record has been destroyed or lost, the custodian shall notify the applicant of this fact within 10 working days of the request and shall explain in the response the circumstances of the destruction or loss.

#### Regulation .11 Review of the Denial.

*COMAR 26.01.04.11*

A. If the written request is denied by the custodian for a reason other than that the record is temporarily unavailable, the applicant may request an administrative hearing on the denial within 30 days after receipt of the written notification of denial.

B. If a hearing is requested by the applicant, the hearing shall be a contested case hearing. The hearing shall be governed by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 26.01.02.

C. If the administrative hearing results in a total or partial denial of the written request, the applicant may then 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 the administrative remedy.

#### Regulation .12 Disclosure Against Public Interest.

*COMAR 26.01.04.12*

If, in the opinion of the official custodian, disclosure of any public record which is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the official custodian may temporarily deny the request in writing. In these cases, the official custodian shall apply within 10 working days of the denial to the appropriate circuit court for an order permitting him to continue to deny or restrict the disclosure. Notice of the application filed with the circuit court shall be served upon the applicant by the custodian in the same manner provided for service of process by the Maryland Rules of Procedure.

#### Regulation .13 Fees.

*COMAR 26.01.04.13*

A. Department Fee Schedule.

  (1) Copies.

    (a) Except as provided below, the charge for each copy is 30 cents per page when reproduction can be made by photocopying machine within the Department. This charge shall increase to 32 cents July 1, 2001, 34 cents July 1, 2003, and 36 cents July 1, 2005.

    (b) When records are not susceptible to photocopying (for example, punch cards, magnetic tapes, and microfilm), the charge for reproducing the record will be determined on a case-by-case basis at actual cost.

    (c) For preprinted material, the charge will be the cost to the Department plus 10 percent.

    (d) For preprinted material which is disseminated by the Department for the education or general welfare of the people of the State, there will be no charge or a charge equal to the normal charge for this material.

    (e) For other preprinted material, the charge will be 2 cents per page or the established price.

    (f) For oversized copies (for example, blueprints), the charge shall be $2 per page.

    (g) For copies of computer files, the charge will be the actual cost of hardware or software necessary to make the copies, the employee's time, and the cost of the materials to convey the copies such as tapes, diskettes, or paper.

  (2) Certification of Copies. When a person requests that copies of records be certified copies of the originals, a cost of 47 cents per page shall be charged.

  (3) In the discretion of the custodian, a charge need not be made if the total amount of the fee is less than $2.

B. If the fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by a law other than the Act, the specific fee contained in that law shall determine the amount charged for that record.

C. If the custodian is unable to copy a record within the Department, he shall make arrangements for its prompt reproduction elsewhere. The custodian shall collect from the applicant a fee that will be determined on a case-by-case basis at actual cost. Instead of collecting a fee from the applicant, the custodian may allow the applicant to pay it directly to the public or private facility making the reproduction.

D. Before reproducing a record, the custodian shall estimate the cost of reproduction and obtain agreement of the applicant that the cost shall be paid. The custodian shall demand prepayment of an estimated fee before reproducing the record if the applicant has failed to pay previously assessed fees within 30 days from the date of billing or if the estimated cost of the fee is in excess of $250.

E. Fees for Time Expended.

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

  (2) The fees are assessed in accordance with the following fee schedule:

  (3) Fees for computer search time consist of the employee's time in addition to the direct costs of operating the computer to conduct the search.

F. Except as provided in §I of this regulation, the official custodian 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. If the applicant requests the custodian to waive or reduce any fee charged pursuant to this chapter, the custodian may waive or reduce the fee after the Department determines that the waiver or reduction is in the public interest.

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.

I. Multiple Requests.

  (1) For purposes of determining the appropriate fees, multiple requests may be aggregated if:

    (a) The applicants are the same individuals or are employed, retained, or are otherwise related to a common applicant;

    (b) The requests are for the same or related subject matter, involve the same property or entity, or seek the same information from different entities;

    (c) The individual requests when aggregated would exceed 2 hours search and preparation time, and individually would require less than 2 hours search and preparation time; and

    (d) The requests have been received within a reasonable period of time as determined by the custodian to be considered a single request.

  (2) Multiple requests may be aggregated if the Department determines that processing multiple requests promotes administrative efficiency and represents the most efficient use of State resources.

#### Regulation .14 Time of Inspection.

*COMAR 26.01.04.14*

An applicant may inspect any public record during the normal working hours of the Department.

#### Regulation .15 Place of Inspection.

*COMAR 26.01.04.15*

Inspection will take place where the document is located unless the custodian determines that another location is more suitable.