Maryland Attorney General Opinion 110OAG60

60 [110 Op. Att’y
PUBLIC INFORMATION ACT
DEFINITION OF “PUBLIC RECORD” – WHETHER THE DELAYED
BROADCAST OF POLICE RADIO DISPATCH TRANSMISSIONS
IMPLICATES THE PUBLIC INFORMATION ACT
September 18, 2025
The Honorable Julie M. Giordano
County Executive, Wicomico County
For decades, members of the media, hobbyists, and others
have listened to police dispatch communications by using radio
scanners. In recent years, however, concerns about officer safety,
personal privacy, and investigation integrity have led many law
enforcement agencies to encrypt their radio communications,
meaning that scanners are no longer able to pick up those
communications. Some of these agencies’ radio transmissions
have simply gone silent as far as the public is concerned, while
other agencies have opted to allow various private platforms to
broadcast otherwise encrypted radio communications on a delay.

You have indicated that Wicomico County is currently
confronting these types of questions about law enforcement
agencies’ radio dispatch transmissions. In particular, you are
concerned about what limitations Maryland’s Public Information
Act (“PIA” or “the Act”) might place on the disclosure of these
transmissions as well as what implications the PIA may have for
delayed transmission. Although live radio transmissions are not
within the scope of the PIA, audio recordings used to facilitate
delayed broadcasts might be. Thus, you have asked whether the
delayed public broadcast of these communications falls within the
scope of the PIA and, if so, whether any provisions of the PIA
would limit a government’s ability to provide or permit those
delayed broadcasts.

As explained in detail below, if a governmental unit itself
were to record dispatch communications and then broadcast those
recordings on a delay, the unit would clearly need to follow the
PIA’s requirements and thus, before providing the broadcast,
redact any information from those recordings that must be withheld
from public inspection under the PIA. In practice, given the work
necessary to review each recording to remove the information not
subject to disclosure, the public would have to wait a significant
amount of time to hear the broadcasts.
Gen. 60] 61

Because of those practical concerns, it is our understanding
that some law enforcement agencies have tried alternative
arrangements to facilitate broadcasting of the radio transmissions
to the public. For example, a law enforcement agency might give
members of the press or private contractors the ability to access the
live, unencrypted version of the dispatch communications in real
time, and the news organization or private contractor might make
a recording of the live dispatch communications and then broadcast
that recording to the public on a brief delay.

Assuming a delayed-broadcast arrangement of that type
involves the creation of a recording as a step in the process, the
arrangement implicates the PIA if the recording comes within the
PIA’s definition of a “public record.” A “public record” means
documentary material, including a recording, “made by a unit or an
instrumentality of the State or of a political subdivision or received
by the unit or instrumentality in connection with the transaction of
public business.” Md. Code Ann., Gen. Prov. (“GP”) § 4-101(k).
To interpret that definition of “public record” under the PIA in the
past, we have relied on federal precedent interpreting the scope of
the similar term “agency records” in the federal Freedom of
Information Act, and we think it makes sense to again do so here.
Under the relevant federal test, a record generated by a third party
qualifies as an “agency record” only if the agency created or
obtained the requested materials and also controls the requested
materials. Applying that test to the type of delayed-broadcast
arrangements about which you have asked, there are at least some
circumstances where the recording may qualify as a “public
record” subject to the PIA’s mandatory exemptions even when the
mechanical process of generating or broadcasting the recording
falls on a contractor or other third party. Ultimately, however, the
answer will depend on the specific details of the arrangement. For
that reason, the General Assembly may wish to clarify when, and
under what circumstances, law enforcement agencies can facilitate
near-contemporaneous delayed broadcasts of their radio dispatch
transmissions.

I
Background

A. Maryland’s Public Information Act
The General Assembly enacted Maryland’s PIA to ensure
“access to information about the affairs of government and the
official acts of public officials and employees.” GP § 4-103(a).
This objective is accomplished by providing for inspection and
62 [110 Op. Att’y

copying of public records unless the Act provides otherwise. GP
§§ 4-201(a) and 4-205(b). For purposes of the PIA, a “public
record” is “the original or any copy of any documentary material,”
in “any form,” that is “made by” or “received by” “a unit or an
instrumentality of the State or of a political subdivision . . . in
connection with the transaction of public business.” GP
§ 4-101(k)(1); see also 106 Opinions of the Attorney General 100,
101 (2021). A person may request a public record from a
custodian, who is defined as, among other things, an “authorized
individual who has physical custody and control of a public
record.” GP § 4-101(d)(2). The custodian’s obligations include
granting or denying a PIA request within certain time limitations,
GP § 4-203(a), and, if a request is denied, providing certain
information to explain the denial, GP § 4-203(c).
The PIA’s provisions also contain exemptions from the
general rule of disclosure for certain kinds of records or
information contained in records. Some of these exemptions are
merely discretionary, giving the agency the option to withhold the
records from public inspection, but others are mandatory and
therefore require shielding from disclosure under the PIA. Many
of these mandatory exemptions “are intended to address the
reasonable expectation of privacy” that individuals have in
information about them that may be contained in public records.
Immanuel v. Comptroller, 449 Md. 76, 82 (2016) (quoting
University Sys. of Md. v. Baltimore Sun, 381 Md. 79, 88 (2004)).
For instance, GP § 4-306 requires a custodian to deny inspection of
certain hospital records that contain “general or specific
information about one or more individuals,” and, under GP
§ 4-329(b)(1), a custodian must redact “the part of the public record
that contains . . . medical or psychological information about an
individual, other than an autopsy report of a medical examiner.” A
custodian may be civilly liable for “actual damages” if a court finds
that the custodian “willfully and knowingly allow[ed] inspection or
use of a public record” in violation of the PIA and “the public
record names or, with reasonable certainty, otherwise identifies the
individual” by certain identifying factors, including “an address.”
GP § 4-401(a); see also GP § 4-402(a)(1) (providing criminal
penalties for a person who “willfully or knowingly violate[s] any
provision of [the PIA]”).

B. The PIA and Emergency Service Provider Records

In the fifty-some years since the PIA was enacted, questions
have arisen about whether records related to, and generated by,
emergency service providers must be disclosed under the PIA. In
Gen. 60] 63

1986, we addressed a question of whether “tape recordings of calls
to 911 Emergency Telephone System centers” were subject to
disclosure and, if so, whether there were exemptions from
disclosure that might require or permit denial of inspection of such
records. 71 Opinions of the Attorney General 288 (1986). At that
time, the “minimum requirements” for all local 911 systems
included “electronic recording, with playback capability, of all
incoming calls.” Id. at 289. The tape recordings were “physically
maintained in the local 911 emergency communications centers.”
Id. We concluded that, “[i]n light of the PIA’s broad scope, there
is no question that the 911 emergency centers operated by the
counties are governmental agencies subject to the PIA and that the
tape recordings of telephone calls to those centers are public
records within the meaning of the PIA.” Id. at 290.
Although it was clear that 911 recordings were public records
generally subject to disclosure under the PIA, we also recognized
that “[p]articular calls for emergency assistance might well reveal
intimate personal information about the caller or others,” and stated
that, when the requester was not a person in interest,1 “the PIA’s
exceptions can and should be construed somewhat more liberally
than would otherwise be the case.” Id. at 291. We explained that
“statements concerning an injured or ill person’s symptoms or
condition, provided to a 911 center operator for the purpose of
obtaining appropriate emergency medical care, are ‘medical or
psychological information’ that must be withheld” under what is
now § 4-329(b) of the PIA. Id. at 292. Thus, we concluded, “if
access to a tape is requested, the tape must be reviewed to
determine whether portions of it contain information that must be
deleted before the tape’s release.”2 Id.; see also 90 Opinions of the
Attorney General 45, 53-54 (2005) (concluding that “specific
information” in an ambulance dispatch event report “concerning an
individual’s medical history or condition . . . should be redacted
before the record is disclosed”); PIA Compliance Bd. Op. No. 24-
93, at 7 (Aug. 27, 2024) (finding that GP § 4-329(b) applied to
certain portions of police officer body worn camera footage of an
1
A “person in interest” is usually the “person or governmental unit
that is the subject of a public record or a designee of the person or
governmental unit.” GP § 4-101(g).
2
We also considered in our 1986 opinion whether other exemptions
might apply to 911 call center recordings, including what is now § 4-351(a),
the PIA’s discretionary exemption for records of investigations. 71
Opinions of the Attorney General at 294-95. We concluded that the
exemption might apply under certain circumstances. Id. In light of your
focus on mandatory exemptions—i.e., records or information for which
inspection must be denied—we do not detail that portion of the opinion here.
64 [110 Op. Att’y

interaction between police and an individual who was later taken
to the hospital).
C. Radio Scanners and Emergency Services Communications

In compliance with our policy for opinion requests from local
governments, you have provided a memorandum from the
Wicomico County Attorney addressing the status of police radio
dispatch calls under the PIA. In that memorandum, the County
Attorney explains that, “[h]istorically, anyone in Wicomico County
with a capable radio scanner could tune into the appropriate
channel for police, fire or EMS and freely listen to the broadcasts
as they happened.” Memorandum from Paul Wilber, Wicomico
County Attorney, to Wicomico County Executive 1 (Sept. 10,
2024) (“Wilber Memorandum”); see also Terrence McCoy,
Listening, But Finding Less to Hear, Wash. Post, Dec. 31, 2018, at
B04 (providing anecdotal and historical information about
hobbyists who listen to police scanners). Recently, however, “all
police radio dispatch transmissions were encrypted so that any
radio or scanner outside of the police force would no longer be able
to access the newly encrypted police radio dispatch transmissions.”
Wilber Memorandum 1. According to the County Attorney, the
encryption applies only to police transmissions, and the
transmissions of local fire or EMS services “can still be easily
accessed.” Id. Nevertheless, the County Attorney states that “[t]his
new prohibition on citizens freely listening into the Police radio
dispatch calls has caused some concerns among local individuals
pursuing the transparent reporting and communications by the
Police force.” Id.3
Wicomico County is not alone in moving to encrypt law
enforcement radio dispatch transmissions. Many large cities,
including Denver, San Francisco, Baltimore, Chicago, and New
York, have encrypted emergency services radio communications to
varying degrees. See Ernesto Londoño, The Wildly Popular Police
Scanner Goes Silent for Many, Int’l N.Y. Times, Dec. 27, 2023, at
9. As in Wicomico County, that decision has led to criticism from
pro-transparency and police accountability advocates. See, e.g.,
Eric Bedner, Police Encrypting Radio; Concerns Raised, Record-
Journal (Meriden, Conn.), Oct. 16, 2024, at C001 (reporting
comments of ACLU of Connecticut executive director that
“[p]olice are public servants and should be required to operate with
a measure of accountability and transparency,” and that
3
The County Attorney clarifies that the issue “relates only to police
dispatch transmissions not to any subsequent encrypted operational
transmissions.” Wilber Memorandum 1.
Gen. 60] 65

“[e]ncrypted communications in policing prevent the public,
journalists, and advocates from accessing information about their
communities in real time”).

Some jurisdictions have thus looked for alternative ways to
balance the interests of security and transparency. For example, in
Baltimore City, the police department has “encrypt[ed] its radio
traffic and implement[ed] a 15-minute delay on live radio
broadcasts available only” on an internet platform called
“Broadcastify,”4 though we do not know all the details of that
arrangement. See Darcy Costello, Baltimore Police to Encrypt
Radio Transmissions and Offer Public Access on 15-Minute Delay,
Balt. Sun, June 30, 2023. Some other jurisdictions have considered
and rejected delayed broadcasting, citing concerns about
transmitting witness and victim information over the radio to the
public. See, e.g., Jeffrey A. Roberts, Its Radio Transmissions
Encrypted Since 2016, Aurora Police Considered—Then
Rejected—a Delayed Public Feed on Broadcastify, Colorado
Freedom of Information Coalition (May 30, 2024),
https://coloradofoic.org/its-radio-transmissions-encrypted-since-2016-
aurora-police-considered-then-rejected-a-delayed-public-feed-on-
broadcastify/. In some of those jurisdictions, other options have
been explored, such as providing news media with special access
to real-time communications via scanners that can receive the
encrypted communications. Id.

II
Analysis

We turn to your question of whether the Public Information
Act applies to delayed broadcasts of law enforcement dispatch
communications and, if so, what limitations the Act might place on
their disclosure.

4
Tactical communications by the Special Weapons and Tactics
(“SWAT”) division have apparently been fully encrypted since 2021 and
are not available on the delayed broadcast. See Press Release, Baltimore
Police Department, BPD to Implement Timed Encryption While
Providing Public Streaming of Radio Transmission (June 30, 2023),
available at https://www.baltimorepolice.org/news/bpd-implement-
timed-encryption -while-providing -publi c -streaming -radio -
transmission#:~:text=Yes.,media%20and%20public%20via%20Broadc
astify.
66 [110 Op. Att’y

A. The PIA Restricts the Disclosure of Certain Information
from “Public Records”
To answer your question, we begin by stressing two key
aspects of the PIA. The first is that the PIA’s provisions apply
solely to “public records,” as defined by the Act. GP § 4-201(a).
That is, the PIA governs only “documentary material” that is “made
by” or “received by” a unit of State government or a political
subdivision in the transaction of public business. See GP
§ 4-101(k) (defining “public record”). The definition includes
documentary material that is “in any form,” including “a
recording” or “a tape,” GP § 4-101(k)(1)(ii), and thus clearly
applies to audio recordings when made or received by the
government. But the definition does not apply (and the Act thus
has not historically been implicated) when scanners merely pick up
unencrypted police radio transmissions in real time, because that
interception5 does not, at that point, create “documentary material”
that has been preserved in some way. See GP § 4-101(k). Rather,
the scanners simply pick up passing radio transmissions that are
not, in and of themselves, “public records” covered by the PIA.
The second key aspect of the PIA relevant here is that the
PIA’s mandatory exemptions generally prohibit custodians from
disclosing protected records (or information from those records)
regardless of whether disclosure is requested under the PIA. See,
e.g., GP § 4-328 (“Unless otherwise provided by law, a custodian
shall deny inspection of a part of a public record, as provided in
this part.”). For example, if a record qualifies as a “personnel
record of an individual” that is protected under GP § 4-311, then a
custodian not only must deny inspection if the record is requested
under the PIA, but also may not otherwise disclose that record by,
for instance, affirmatively posting the record on the agency’s
website. See, e.g., 65 Opinions of the Attorney General 365, 370
(1980) (concluding that, if a local official obtained someone’s
personnel file and then voluntarily disclosed the contents to

5
Maryland’s Wiretap Act generally prohibits the willful interception
of electronic, oral, or wire communications without the consent of all
parties. Md. Code Ann., Cts. & Jud. Proc. § 10-402(a). However, the
Wiretap Act contains exceptions, including one that permits interception
of radio communications transmitted “[b]y any governmental, law
enforcement, civil defense, private land mobile, or public safety
communications system, including police and fire, readily accessible to
the general public.” Id. § 10-402(c)(7)(ii)(2); see also 71 Opinions of
the Attorney General at 289 n.5 (stating that “[t]he taping of such
emergency telephone calls is lawful, notwithstanding the general
prohibition against wiretapping”).
Gen. 60] 67

members of the press, he would violate the PIA by “intentionally
releas[ing] prohibited information” covered by a mandatory
exemption); cf. 90 Opinions of the Attorney General 17, 22 (2005)
(opining that a certain type of meeting must be closed “to avoid a
violation of the provision of the Public Information Act prohibiting
public disclosure of a personnel record”); Letter from Jack
Schwartz, Chief Counsel, Opinions & Advice, to Barbara Trader,
at 2 (Oct. 7, 1996) (advising that, under the PIA, a public body
cannot “divulge . . . information derived from a personnel record”
in an open meeting). A contrary interpretation would render the
PIA’s mandatory exemptions meaningless.

Based on these principles, once a law enforcement agency or
other governmental emergency services provider records its radio
communications, those recordings are clearly public records
subject to the PIA, 71 Opinions of the Attorney General at 288, and
the entity can only disclose the recordings in compliance with the
PIA’s mandatory exemptions. In other words, even though the live
transmission of the communications over the radio is not a “public
record,” the actual recordings made by the government meet the
definition of “public record” because they are “documentary
material” that has been “made” or “received” by the law
enforcement agency as it carries out its public business. GP
§ 4-101(k)(1). Therefore, if a law enforcement agency were to
record its radio transmissions and then broadcast those recordings
on a delay, the law enforcement agency would need to comply with
the PIA’s prohibitions on disclosure and redact from those
recordings, before the broadcast, any information covered by
mandatory PIA exemptions.
However, more difficult questions arise when a third party,
such as a contractor, is involved in the creation of the recording or
maintains sole possession of the recording. For example, to
facilitate delayed broadcasts of dispatch communications, there
might be some circumstances where a recording of the law
enforcement agency’s radio transmissions is generated and
broadcast by the employees or facilities of a private contractor, and
the recording never comes into the agency’s possession. If that
recording is not a “public record,” it can be broadcast without
redacting information covered by the PIA’s mandatory
exemptions. But if it is a public record, its disclosure would be
subject to the PIA’s mandatory exemptions, and the recording
would need to be reviewed (and, if necessary, redacted) before it
could be broadcast or otherwise released.
68 [110 Op. Att’y

B. Federal Case Law Offers Persuasive Authority for
Defining “Public Records” Under the PIA
We begin our analysis of that more complicated issue with the
PIA’s definition of “public record.” As noted above, to count as a
“public record,” a recording must be either “made by” or “received
by” a unit or instrumentality of State or local government in
connection with public business. GP § 4-101(k)(1)(i). Although
the underlying communications memorialized by the recording
may have been “made by” a law enforcement agency in the sense
that the agency’s officers generated the oral communications, the
record at issue is the recording used in the process of broadcasting,
on a delay, those communications. The oral communications by
themselves are not “documentary material” so cannot be a “public
record.” Our focus is thus on when a recording generated from the
oral communications is a “public record.”

In the past, when difficult questions have arisen about
whether a record is a “public record” under the PIA, we have relied
on federal cases interpreting the similar term “agency record” in
the federal Freedom of Information Act (“FOIA”). Because the
PIA and FOIA have the same general purpose, 80 Opinions of the
Attorney General 257, 259 (1995), and because many provisions of
the PIA were modeled on analogous provisions in FOIA, see, e.g.,
92 Opinions of the Attorney General 26, 45 (2007), “interpretations
of the federal statute are [often] persuasive in interpreting” the PIA,
80 Opinions of the Attorney General at 259.

Under FOIA, the United States Supreme Court has developed
a two-part definition of “agency record.” A record is an “agency
record” if: (1) the agency “either create[d] or obtain[ed]” the
requested materials, and (2) the agency is “in control of the
requested materials at the time the FOIA request is made,” meaning
“that the materials have come into the agency’s possession in the
legitimate conduct of its official duties.” U.S. Dep’t of Justice v.
Tax Analysts, 492 U.S. 136, 144-45 (1989). The test is derived, in
part, from the Court’s earlier decision in Forsham v. Harris, 445
U.S. 169 (1980). In that case, the Court held that “written data
generated, owned, and possessed by a privately controlled
organization receiving federal study grants” were not “agency
records” subject to FOIA’s provisions, even though the federal
government had funded the study. Id. at 171. Although the federal
agency had the right to obtain the data in question, it had not
exercised that right, and the Court explained that “FOIA applies
[only] to records which have been in fact obtained, and not to
records which merely could have been obtained.” Id. at 186.
Gen. 60] 69

Forsham involved activities that the federal government merely
funded, but federal courts have also applied the same two-part test
to analyze the status of records of third parties with a closer
relationship to a government agency, such as contractors. See, e.g.,
Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515
(D.C. Cir. 1996); Rocky Mountain Wild, Inc. v. U.S. Forest Serv.,
878 F.3d 1258, 1262 (10th Cir. 2018).

Our Office has also relied on this federal case law to analyze
whether third party records qualify as “public records” under the
PIA. In a 1995 opinion, relying primarily on Forsham, we
concluded that records of a licensed child care facility were not
“public records” where the records were “maintained by private
persons who have applied for residential child care facility licenses
from the Department of Human Resources” and were “reviewed by
the Department . . . but remain[ed] in the custody of the applicant.”
80 Opinions of the Attorney General at 257. Consistent with
Forsham and citing Forsham for support, we concluded that
because the records were “created and maintained by a private
entity” and never came into the “possession of a government
agency,” the PIA did not cover them. Id. at 259, 261. The PIA
Compliance Board, which adjudicates certain disputes under the
PIA, has also recently cited Forsham in concluding that an outside
attorney’s invoices were not “public records” of a municipality
where they did not come into the municipality’s possession. PIA
Compliance Bd. Op. No. 25-73, at 11 (Aug. 15, 2025).
To be sure, the definitions of “agency record” and “public
record” are not always the same. See Office of the Governor v.
Washington Post Co., 360 Md. 520, 534-36 (2000) (concluding
that, even though White House records are not covered by FOIA
because the President is not an “agency,” the PIA nonetheless
applied to the Governor because its scope was defined by the term
“public record” rather than “agency record”). And although federal
interpretations of FOIA have generally been given “significant
weight” in interpreting analogous provisions of the PIA, e.g.,
Amster v. Baker, 453 Md. 68, 79 (2017), it has become increasingly
important in recent years to scrutinize whether Maryland should
follow a federal interpretation of an analogous statute as the U.S.
Supreme Court’s strict textualist approach to statutory
interpretation increasingly diverges from the Maryland courts’
approach.

More specifically, the U.S. Supreme Court in recent years has
become more and more likely to declare that its “analysis begins
and ends with the text.” E.g., Little Sisters of the Poor Saints Peter
70 [110 Op. Att’y

& Paul Home v. Pennsylvania, 591 U.S. 657, 676 (2020). This
brand of textualism is based on the premise that there is no such
thing as legislative intent apart from the text, and that “there is no
way to tell what” a legislature “intended except the text.” Antonin
Scalia & John F. Manning, A Dialogue on Statutory and
Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610, 1612
(2012); see also, e.g., Oklahoma v. Castro-Huerta, 597 U.S. 629,
642 (2022) (“Congress expresses its intentions through statutory
text passed by both Houses and signed by the President (or passed
over a Presidential veto).”).

By contrast, although the Maryland courts always “start with
the text,” they seek to “ascertain and effectuate the real and actual
intent of the Legislature,” United Parcel Serv. v. Strothers, 482 Md.
198, 212 (2022) (emphasis added) (internal quotation marks
omitted), including by consulting legislative history and other
“extrinsic sources” of that intent, Berry v. Queen, 469 Md. 674,
687-88 (2020) (quoting In re S.K., 466 Md. 31, 50 (2019)). In fact,
even when the text of a statute appears clear on its face, our
Supreme Court will often consult legislative history and other
extrinsic sources to confirm that its reading is in fact consistent
with the real and actual intent of the General Assembly. See, e.g.,
Pabst Brewing Co. v. Frederick P. Winner, Ltd., 478 Md. 61, 76
(2022). Thus, when a federal interpretation of FOIA stems from
principles of statutory construction that diverge from those of
Maryland statutory interpretation, we should closely examine
whether it makes sense to apply that reading to the PIA.

Here, however, we think the federal courts’ two-part Tax
Analysts test aligns with the text, structure, and purposes of the
PIA. The first prong of the federal test—i.e., that the agency must
have “created or obtained” the record—is consistent with the PIA’s
requirement that a “public record” be “made by” or “received by”
a governmental unit or instrumentality in connection with public
business. See GP § 4-101(k)(1)(i). And the second prong—i.e.,
that the federal agency controls the record at the time of the
request—is consistent with the PIA’s implicit requirement that
public records must have a government “custodian.” The PIA
generally assumes that a public record will have a “custodian,” see
GP § 4-202(a) (requiring a person who wishes to inspect a record
to request it from the custodian), and further assumes that only
government entities will be “custodians.” For example, the term
“official custodian,” referring to the person with ultimate authority
over a record, is explicitly limited to “officer[s] or employee[s] of
the State or a political subdivision.” GP § 4-101(f). And the PIA’s
judicial review provision assumes the defendant will be a
Gen. 60] 71

government entity. See, e.g., GP § 4-362(c)(3)(i), (d)(1), (e), (f).
Consistent with that understanding, our 1995 opinion concluded
that, in general, only records in the possession of a governmental
entity are public records. See 80 Opinions of the Attorney General
at 259-60. Thus, even though a control requirement does not
appear expressly on the face of the PIA, it is part of the surrounding
context of the statutory scheme and necessarily informs the
definition of a “public record” under Maryland law.
Because the federal test is consistent with the PIA, then, we
will use the two-part Tax Analysts test as the starting point for our
analysis of whether recordings created as part of a delayed
broadcast of police radio transmissions would be “public records”
under the PIA. We will discuss each prong in turn.
C. Application of the Federal Test to Records Generated by
Third Parties
1. The First Prong: Whether the Agency Created or
Obtained the Records
Under the first prong of the test, records generated by third
parties, including contractors, generally will not be public records
unless the agency actually receives them. That is because such
records would not ordinarily be viewed as created (or made, to use
the language of Maryland’s statute) by the agency. See 80
Opinions of the Attorney General at 258-60; Forsham, 445 U.S. at
185-86; Rocky Mountain Wild, 878 F.3d at 1263; PIA Compliance
Bd. Op. No. 25-73, at 11; Office of the Attorney General, Maryland
Public Information Act Manual 1-9 (19th ed. 2024) (“PIA
Manual”).

But some federal courts have held that a record can potentially
qualify as “created by” an agency when it is created by a third party
on behalf of the agency, at least when the agency exercises
“extensive supervision and control” over the creation of the record.
See, e.g., Burka, 87 F.3d at 515; Forest County Potawatomi Cmty.
v. Zinke, 278 F. Supp. 3d 181, 196 (D.D.C. 2017); Chicago Tribune
Co. v. U.S. Dep’t of Health & Hum. Servs., 1997 WL 1137641, at
*13-14 (N.D. Ill. Mar. 28, 1997). In Burka, for instance, the United
States Court of Appeals for the D.C. Circuit held that data tapes
generated by a contractor for an agency study were effectively
“created by” the agency because the agency had “extensive
supervision and control . . . over collection and analysis of the
data.” 87 F.3d at 515. The agency itself was conducting the study
and had designed a survey and questionnaire as part of the research
72 [110 Op. Att’y

methodology but outsourced the actual collection of the data to a
contractor. See id. at 510-12. The study protocol even made
agency employees responsible for “[d]ay-to-day supervision” of
the study, and survey personnel were instructed to identify
themselves as calling on behalf of federal agencies. Burka v. U.S.
Dep’t of Health & Hum. Servs., 1993 WL 13140669, at *2-3
(D.D.C. Dec. 13, 1993).

Although not all federal courts agree that a record generated
on behalf of an agency can qualify as having been “created by” the
agency, see, e.g., Rocky Mountain Wild, 878 F.3d at 1262, we think
Maryland courts would more likely conclude that there are at least
some circumstances where a document created by a third party on
behalf of a government agency can qualify as a public record. The
PIA, by its terms, applies to records “made by” a government unit.
The ordinary meaning of “made by” is broad enough to encompass
at least some records made through an intermediary. See, e.g.,
Black’s Law Dictionary 1144 (11th ed. 2019) (“make” can mean
“[t]o cause (something) to exist”); Cambridge Dictionary,
https://dictionary.cambridge.org/dictionary/english/make (last
visited Sept. 15, 2025) (“to produce something” or “to cause
something,” or “to produce; cause to exist or happen; bring about”).
In addition, cases in other contexts recognize that a record can be
“made by” a person when the person acted through an intermediary
but was, in substance, directly responsible for the record’s creation.
See, e.g., United States v. Giles, 300 U.S. 41, 48-50 (1937) (holding
that the word “make,” in a criminal statute prohibiting the making
of false entries in bank records, included deliberate action causing
the creation of a false entry through an intermediary); United States
v. Danielczyk, 788 F. Supp. 2d 472, 479-82 (E.D. Va. 2011)
(holding that donors “made” campaign contributions when they
arranged for others to contribute funds with the expectation of
reimbursement), rev’d in non-relevant part, 683 F.3d 611 (4th Cir.
2012).

To be clear, however, it is not enough that the government
was the but-for cause of a record’s creation. That, without more,
does not support a conclusion that a record was “made by” the
government. See Denver Post Corp. v. Ritter, 255 P.3d 1083, 1091
(Colo. 2011) (en banc) (rejecting the view that “any writing
memorializing an event in which a public official participates
would constitute a ‘writing made . . . by the state’”). So, for
example, the fact that an activity was funded by the government,
without more, does not mean the government “created” or “made”
the records. See, e.g., Burka, 87 F.3d at 515; Chicago Tribune,
1997 WL 1137641, at *13; ExxonMobil Corp. v. Department of
Gen. 60] 73

Commerce, 828 F. Supp. 2d 97, 105-06 (D.D.C. 2011). Nor is it
enough, in the case of contractors, that the agency generally
“monitors the performance and progress of the contractor,”
ExxonMobil Corp., 828 F. Supp. 2d at 106, as that could transform
most contractor records into agency records. See also PIA
Compliance Bd. Op. No. 25-73, at 11-12 (concluding that invoices
generated by outside attorney during representation of town, which
were sent to insurance carrier but not to town, were not “public
records” of town). Finally, that a third party may have an agency
relationship with a government unit, without more, does not mean
the unit “made” the third party’s records. Id.

In any event, for those federal courts that have adopted the
theory that records made by a third party on behalf of the
government can qualify as “agency records,” the courts have
considered the totality of the circumstances in determining whether
the agency effectively “created” the record. One circumstance
courts have considered is the extent to which the agency controls
the third party’s activities, especially the creation of the disputed
record itself. Burka, 87 F.3d at 511-12; Chicago Tribune, 1997
WL 1137641, at *13-15; Beveridge & Diamond, P.C. v. U.S. Dep’t
of Health & Hum. Servs., 85 F. Supp. 3d 230, 237 (D.D.C. 2015).
Relatedly, courts might also consider if the third party is
conducting a task that applicable law requires the agency to
perform and specifically requires the agency to retain responsibility
for and control over. See Zinke, 278 F. Supp. 3d at 196. But see
Buholtz v. U.S. Marshals Serv., 233 F. Supp. 3d 113, 116 (D.D.C.
2017) (records relating to prisoner held in local jail that contracted
with Marshals Service were not created on behalf of Marshals
Service). And in the case of a contractor, the language of the
contract itself may also be relevant. See Zinke, 278 F. Supp. 3d at
196 (considering it relevant that the contract expressly provided the
contractor was acting “on behalf of” the agency); In Defense of
Animals v. National Insts. of Health, 543 F. Supp. 2d 83, 100
(D.D.C. 2008) (examining contractual provisions in concluding
that government agencies had “obtained” relevant records).

On the other hand, the fact that the government could have
accessed the record upon request does not mean that the record was
created “on behalf of” the government. Forsham, 445 U.S. at 185.
Similarly, the fact that the agency relied on the records does not
mean that the third party acted on behalf of the agency in creating
them. Rocky Mountain Wild, 878 F.3d at 1262.

Ultimately, cases where federal courts have found that a
contractor’s or other third party’s record was “created by” the
74 [110 Op. Att’y

federal agency are the exception, not the rule. Even those federal
courts that have recognized this possibility have required a high
degree of supervision and control by the agency over the third
party, or other significant indicia of an especially close relationship
between the agency and the third party. See, e.g., Burka, 87 F.3d
at 515. The ordinary agency-contractor relationship—in which the
agency sets the overall objectives, monitors progress at a high
level, and receives final deliverables, but leaves day-to-day
operations up to the contractor—generally will not suffice to make
the contractor’s records into agency records. See ExxonMobil, 828
F. Supp. 2d at 106. But we cannot discount the possibility that, in
some circumstances, an agency will be found to have “created” (or
“made”) records through a third party.

2. The Second Prong: Whether the Agency Controls the Records

Next, under the second prong of the Tax Analysts test, a record
is subject to FOIA only if it is in the agency’s control at the time
the FOIA request is made, i.e., the record has “come into the
agency’s possession in the legitimate conduct of its official duties.”
492 U.S. at 145. The most common factors that courts consider in
making that determination seem to be:

(1) the intent of the document’s creator to
retain or relinquish control over the records;
(2) the ability of the agency to use and dispose
of the record as it sees fit; (3) the extent to
which agency personnel have read or relied
upon the document; and (4) the degree to
which the document was integrated into the
agency’s record system or files.

Zinke, 278 F. Supp. 3d at 196. But these factors are not exclusive,
and courts have considered others when circumstances warrant.
See, e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208,
220-21 (D.C. Cir. 2013) (concluding that “the four-factor test is not
the only test relevant” when “special policy considerations” “are at
stake”). The analysis thus depends on the totality of the
circumstances. E.g., Consumer Fed’n of Am. v. Department of
Agric., 455 F.3d 283, 287-88 (D.C. Cir. 2006).

In most situations, the question of control will be easy to
resolve. For obvious reasons, the government will not typically
have control over a third party’s records. See, e.g., Rocky Mountain
Wild, 878 F.3d at 1264. For example, when the request is for a
third party’s internal records that the agency has never received or
Gen. 60] 75

reviewed, that fact alone will typically lead most, or all, of the
relevant factors to point away from a finding of control. See, e.g.,
Zinke, 278 F. Supp. 3d at 197-99; Physicians Comm. for
Responsible Medicine v. U.S. Dep’t of Agric., 316 F. Supp. 3d 1,
10 (D.D.C. 2018); Beveridge & Diamond, 85 F. Supp. 3d at 240;
ExxonMobil, 828 F. Supp. 2d at 106-08.

On occasion, however, some courts have found, under the
totality of the circumstances, that an agency had constructive
control of a record—i.e., control without actual possession. See,
e.g., Burka, 87 F.3d at 515; Chicago Tribune, 1997 WL 1137641,
at *15. In Burka, for instance, the court reasoned that the agency
had “constructive control” over data tapes generated by its
contractor because the agency “ordered [the] creation of the
[tapes], plan[ned] to take physical possession of the tapes at the
conclusion of the project,” had “indicated it [would] disclose the
information after its [study was] completed” while prohibiting the
contractor “from making any independent disclosures,” and had
“relied significantly on the [tapes] in writing articles and
developing agency policies.” 87 F.3d at 515.
There are reasons to question whether this constructive
control theory is consistent with U.S. Supreme Court precedent.
The Court in Tax Analysts equated “control” with “possession” and
did not suggest the possibility of constructive control. 492 U.S. at
145. Thus, several federal courts have declined to adopt the
constructive control theory or expressed questions about whether it
should be adopted. See, e.g., Rocky Mountain Wild, 878 F.3d at
1263 (questioning whether “this ‘constructive possession’ theory is
consistent with Supreme Court precedent”); Rojas v. Federal
Aviation Admin., 989 F.3d 666, 677 (9th Cir. 2021) (en banc)
(“Documents that are not in an agency’s possession do not
constitute ‘agency records’ even if the agency could have obtained
them by asking a third party to produce them.”); Bloomberg L.P. v.
Board of Governors, 649 F. Supp. 2d 262, 275 (S.D.N.Y. 2009)
(“The Supreme Court’s teachings . . . certainly do not compel
adoption of the constructive obtainment and control theory . . . .”);
Microsoft Corp. v. IRS, 2023 WL 255801, at *6 (W.D. Wash. Jan.
18, 2023) (declining to apply the constructive possession test from
Burka). We, too, arguably rejected the idea of constructive control
in our 1995 opinion, emphasizing that governmental possession of
records is “fundamental to their being ‘public records’” under the
PIA. 80 Opinions of the Attorney General at 260.

However, we cannot dismiss the possibility that the Maryland
courts would recognize constructive control as sufficient in at least
76 [110 Op. Att’y

some limited circumstances. More recently than our 1995 opinion,
Maryland’s highest court has suggested that an agency can
sometimes qualify as a PIA custodian even without “immediate
physical custody” of records. See Glass v. Anne Arundel County,
453 Md. 201, 235-36 (2017). The Court in that case determined
that a police department remained a “custodian” of records even
though it had delegated storage and maintenance of those records
to a separate unit, the county IT department. See id. at 235-36.
That was because, even though the police department arguably no
longer had physical custody of the records, it retained ultimate
control over them. See id.6 Thus, although Glass involved a
somewhat different situation—records that originated with the
agency and were later sent out of its direct custody—there is some
support in Maryland law for the idea that direct physical custody of
a record is not always a prerequisite of “custodian” status (or, in
the language of the federal test, for a finding of “control”).

Another reason that the Maryland courts might recognize the
possibility of constructive control in limited cases is to avoid
circumvention of the PIA. The U.S. Supreme Court in Tax
Analysts noted, albeit in dicta, that the control analysis might
incorporate an anti-circumvention component. That is, in resolving
the “control” question, the Court suggested that it might consider
whether materials were “purposefully routed . . . out of agency
possession in order to circumvent [an impending] FOIA request.”
492 U.S. at 146 n.6 (alterations in original). Thus, an agency might
qualify as having “control” of documents when its lack of
immediate possession results from an attempt to circumvent FOIA.
See Rojas, 941 F.3d at 408. Some federal courts have similarly
expressed concern that a “simple possession” standard, without any
possibility for constructive control, “would permit agencies to
insulate their activities from . . . disclosure by farming out
operations to outside contractors.” Ryan v. Department of Justice,
617 F.2d 781, 785 (D.C. Cir. 1980); see also Chicago Tribune,
1997 WL 1137641, at *16-17; Zinke, 278 F. Supp. 3d at 197; cf.
Evertson v. City of Kimball, 278 Neb. 1, 12 (2009) (citing a similar
anti-circumvention rationale in holding that some records created
by a contractor during an independent misconduct investigation
were public records).

Although the PIA does not incorporate any express anti-
circumvention principle, it does state a rule of interpretation that
6
Consistent with that view, we have also long said in our Office’s
PIA Manual that an agency’s records “remain ‘public records’ even if
the agency outsources the task of maintaining them to a private
contractor.” PIA Manual at 1-9.
Gen. 60] 77

the Act should generally “be construed” broadly to promote
individuals’ right “to have access to information about the affairs
of government,” while at the same time to avoid “unwarranted
invasion[s] of the privacy . . . of person[s] in interest.” GP § 4-103.
That rule of interpretation could favor reading the Act, when
possible, to limit circumvention of both the PIA’s openness
requirements and its mandatory exemptions, at least those that
protect personal privacy. Thus, although we do not mean to
endorse a test that would recognize records as “public records”
even in cases when the PIA’s text cannot be read to support that
result, a court might well take into account the need to avoid
circumvention of the Act when interpreting the terms “made by” or
“custodian” in the PIA.7 For all those reasons, then, we will assume
that there are some circumstances under which strict physical
possession of records will not always required to satisfy the
“control” prong of the Tax Analysts test.

D. Application of the PIA, Informed by Federal Law, to
Recordings Used in Delayed Broadcast of Law
Enforcement Radio Transmissions
Turning back to your question, how do these principles apply
to recordings used to facilitate delayed broadcasts of law
enforcement radio dispatch transmissions? We cannot provide a
universal response to that question because it will likely require
analysis of the totality of the circumstances in each case. However,
we can provide some guidance and a framework for analyzing the
question.

First, a court would analyze whether the recording is “made
by” the law enforcement agency. GP § 4-101(k)(1)(i). In doing
so, assuming a third party was involved in the recording’s creation,
the court would likely focus on the degree of supervision and
control exercised by the law enforcement agency over the
contractor or other third party that generates and broadcasts the
recording. See, e.g., Burka, 87 F.3d at 515; Zinke, 278 F. Supp. 3d
at 196; Chicago Tribune, 1997 WL 1137641, at *13-14. In
particular, if the agency directed the creation of the particular
recording at issue—with extensive supervision and control over
that activity—it is more likely a court would find that the agency
7
In the separate context of the Open Meetings Act—which is
similarly supposed to be broadly construed to advance its purposes—
Maryland’s courts have suggested that the statute’s terms should be
construed so as to “frustrate all evasive devices.” E.g., City of New
Carrollton v. Rogers, 287 Md. 56, 72 (1980) (quoting Town of Palm
Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974)).
78 [110 Op. Att’y

“made” or “created” the recording than if the agency merely
dictated the overall activity or ultimate result of the project. In
Burka, for example, where the court found the first prong satisfied,
the agency had designed the study and specifically directed the
collection of particular data. See Burka, 87 F.3d at 511-12, 515.
But in Rocky Mountain Wild, which found the first prong not
satisfied, the agency exercised only general supervision over the
contractor, not detailed control over its day-to-day performance.
See 878 F. Supp. 3d at 1261. Apart from the degree of control, a
court might also consider the language of the contract, if any,
between the law enforcement agency and the third party, especially
how it characterizes the relationship between the two and the
amount of control that the agency has over the recording process.
See Zinke, 278 F. Supp. 3d at 196.
Second, a court would analyze whether the law enforcement
agency is a “custodian” of the recording. We expect that this
analysis, as under the federal test, would focus largely on the extent
of control that the law enforcement agency has over the recording
after it is made. In considering the amount of control, the court
would likely consider, among other factors, the intent of the
contractor or other third party to retain or relinquish control over
the recordings, the ability of the agency to use and dispose of the
recordings as it sees fit, the extent to which agency personnel have
accessed or relied upon the recordings, and the degree to which the
recordings were integrated into the law enforcement agency’s files.
See Zinke, 278 F. Supp. 3d at 196.

Some specific questions that might matter in this context
include where the recordings are stored, who has access to them,
and the extent of that access, such as whether the agency has the
ability to edit them. See Center for Bio. Diversity v. U.S. Forest
Serv., 2025 WL 947472, at *5 (D.D.C. Mar. 28, 2025). Another
relevant consideration might be the extent of the law enforcement
agency’s control over what the third party receives and is able to
record in the first place, see Chicago Tribune, 1997 WL 1137641,
at *15, or the extent of the law enforcement agency’s control over
what is disclosed to others, see id. at *15; Burka, 87 F.3d at 515.
Similarly, a court might consider the extent of independent
judgment exercised by the third party in creating the recording. See
Chicago Tribune, 1997 WL 1137641, at *15. To be clear, however,
a right of access to the recording alone is unlikely to support
finding constructive control. See Forsham, 445 U.S. at 182;
Beveridge & Diamond, 85 F. Supp. 3d at 237-38.
Gen. 60] 79

Finally, in close cases, a court might consider the extent to
which the law enforcement agency avoided having control of the
recordings for purposes of circumventing the PIA, including its
mandatory exemptions. Cf. Tax Analysts, 492 U.S. at 146 n.6. In
the scenario about which you have asked, that analysis is
complicated by the need to accommodate two important
considerations that are in some tension here: the PIA’s principle of
public “entitle[ment] to have access to information about the affairs
of government,” GP § 4-103(a), which is furthered by providing
near-contemporaneous delayed broadcasts of law enforcement
dispatch recordings, and the need to prevent evasion of the
mandatory exemptions in the PIA that protect privacy interests.

Although we cannot say how these standards would apply to
every factual situation, a spectrum of possibilities exists. At one
extreme, if the law enforcement agency itself records its own radio
transmissions, using its own employees, premises, and equipment,
the recording will clearly be a “public record.” At the opposite end
of the spectrum, a recording of an unencrypted live radio broadcast
made by a private citizen is not a “public record,” because (among
other reasons) the law enforcement agency did not direct the
recording’s creation and did not control the process for creating the
recording, nor is the recording itself in any sense under the law
enforcement agency’s control.

Between those extremes, whether a particular delayed-
broadcast arrangement produces “public records” subject to the
PIA’s mandatory exemptions will require fact-specific, case-by-
case analysis. But again, ultimately, we think that whether a
delayed-broadcast arrangement creates “public records” will
depend primarily on the degree of control the law enforcement
agency has over the creation of the recordings and over the
recordings themselves once created. Put simply, the more
independence the third party has from the law enforcement agency,
the less likely it is that a court would conclude that the recording
was “made by” the law enforcement agency or that the law
enforcement agency is a “custodian” of the recording. Conversely,
the more the third party acts as a mere technological platform for
broadcasting, and the less control it exercises over the recording,
the more likely it is that a court would conclude that the record was,
in substance, “made by” the law enforcement agency.8
8
Theoretically, on some facts, the third-party broadcaster itself could
be treated as a “unit” or “instrumentality” of State or local government.
This is a fact-based and often difficult inquiry that considers “[a]ll
aspects of the interrelationship” between the State and the entity in
80 [110 Op. Att’y

We recognize that some Maryland law enforcement agencies
are already using delayed-broadcast arrangements. We do not have
enough details about those arrangements to opine on whether they
are consistent with the PIA. Each law enforcement agency will
need to determine, after considering our opinion, whether the
specific delayed-broadcast arrangement it is using entails the
creation of public records. But these questions are far from settled
and, given the uncertainty about how the PIA would apply to
delayed-broadcast arrangements, we recommend that the General
Assembly consider clarifying how the PIA should apply in these
circumstances.

III
Conclusion
In sum, a delayed broadcasting arrangement is subject to the
PIA, and its mandatory exemptions, if and only if it involves the
creation of audio recordings that meet the PIA’s definition of a
“public record.” To count as a “public record,” a recording or other
document must have been “made by” (or “received by”) a unit or
instrumentality of State or local government. Although a document
generated by a third party generally will not qualify as “made by”
a government unit or instrumentality, the answer to your question
depends largely on the degree of supervision and control exercised
by the law enforcement agency over the creation of the recording
and over the recording itself. A right of access to the recording,
without more, will not make the recording a public record, and the
mere fact that a recording is created by a contractor generally will
not do so either. But more extensive indicia of control by the
agency over the recording process and the resulting recordings may
lead a court to conclude that the recordings are “public records”
subject to the PIA’s exemptions from disclosure. A court might
also consider, as a factor in its “public records” analysis, whether a
delayed-broadcast arrangement was designed to circumvent the
PIA’s transparency mandate or its mandatory exemptions. Thus,
whether a delayed-broadcast arrangement is covered by the PIA
depends on the specific details of the arrangement between the law

question. See, e.g., Andy’s Ice Cream, Inc. v. City of Salisbury, 125 Md.
App. 125, 139 (1999) (quoting A.S. Abell Publ’g Co. v. Mezzanote, 297
Md. 26, 35 (1983)). If the third-party broadcaster were itself a public
unit or instrumentality, records “made by” the broadcaster alone, in
connection with public business, would be subject to the PIA. See GP
§ 4-101(k). But the mere act of receiving and recording police radio
transmissions by itself, even under contract with a law enforcement
agency, is unlikely to make a third party into a “unit” or
“instrumentality” of government.
Gen. 60] 81

enforcement agency and the entity that performs the act of
recording.
Anthony G. Brown
Attorney General of Maryland
Sara Klemm
Assistant Attorney General
Thomas S. Chapman
Deputy Chief, Opinions and
Advice

Patrick B. Hughes
Chief Counsel, Opinions and Advice

60 [110 Op. Att’y
PUBLIC INFORMATION ACT
DEFINITION OF “PUBLIC RECORD” – WHETHER THE DELAYED
BROADCAST OF POLICE RADIO DISPATCH TRANSMISSIONS
IMPLICATES THE PUBLIC INFORMATION ACT
September 18, 2025
The Honorable Julie M. Giordano
County Executive, Wicomico County
For decades, members of the media, hobbyists, and others
have listened to police dispatch communications by using radio
scanners. In recent years, however, concerns about officer safety,
personal privacy, and investigation integrity have led many law
enforcement agencies to encrypt their radio communications,
meaning that scanners are no longer able to pick up those
communications. Some of these agencies’ radio transmissions
have simply gone silent as far as the public is concerned, while
other agencies have opted to allow various private platforms to
broadcast otherwise encrypted radio communications on a delay.

You have indicated that Wicomico County is currently
confronting these types of questions about law enforcement
agencies’ radio dispatch transmissions. In particular, you are
concerned about what limitations Maryland’s Public Information
Act (“PIA” or “the Act”) might place on the disclosure of these
transmissions as well as what implications the PIA may have for
delayed transmission. Although live radio transmissions are not
within the scope of the PIA, audio recordings used to facilitate
delayed broadcasts might be. Thus, you have asked whether the
delayed public broadcast of these communications falls within the
scope of the PIA and, if so, whether any provisions of the PIA
would limit a government’s ability to provide or permit those
delayed broadcasts.

As explained in detail below, if a governmental unit itself
were to record dispatch communications and then broadcast those
recordings on a delay, the unit would clearly need to follow the
PIA’s requirements and thus, before providing the broadcast,
redact any information from those recordings that must be withheld
from public inspection under the PIA. In practice, given the work
necessary to review each recording to remove the information not
subject to disclosure, the public would have to wait a significant
amount of time to hear the broadcasts.
Gen. 60] 61

Because of those practical concerns, it is our understanding
that some law enforcement agencies have tried alternative
arrangements to facilitate broadcasting of the radio transmissions
to the public. For example, a law enforcement agency might give
members of the press or private contractors the ability to access the
live, unencrypted version of the dispatch communications in real
time, and the news organization or private contractor might make
a recording of the live dispatch communications and then broadcast
that recording to the public on a brief delay.

Assuming a delayed-broadcast arrangement of that type
involves the creation of a recording as a step in the process, the
arrangement implicates the PIA if the recording comes within the
PIA’s definition of a “public record.” A “public record” means
documentary material, including a recording, “made by a unit or an
instrumentality of the State or of a political subdivision or received
by the unit or instrumentality in connection with the transaction of
public business.” Md. Code Ann., Gen. Prov. (“GP”) § 4-101(k).
To interpret that definition of “public record” under the PIA in the
past, we have relied on federal precedent interpreting the scope of
the similar term “agency records” in the federal Freedom of
Information Act, and we think it makes sense to again do so here.
Under the relevant federal test, a record generated by a third party
qualifies as an “agency record” only if the agency created or
obtained the requested materials and also controls the requested
materials. Applying that test to the type of delayed-broadcast
arrangements about which you have asked, there are at least some
circumstances where the recording may qualify as a “public
record” subject to the PIA’s mandatory exemptions even when the
mechanical process of generating or broadcasting the recording
falls on a contractor or other third party. Ultimately, however, the
answer will depend on the specific details of the arrangement. For
that reason, the General Assembly may wish to clarify when, and
under what circumstances, law enforcement agencies can facilitate
near-contemporaneous delayed broadcasts of their radio dispatch
transmissions.

I
Background

A. Maryland’s Public Information Act
The General Assembly enacted Maryland’s PIA to ensure
“access to information about the affairs of government and the
official acts of public officials and employees.” GP § 4-103(a).
This objective is accomplished by providing for inspection and
62 [110 Op. Att’y

copying of public records unless the Act provides otherwise. GP
§§ 4-201(a) and 4-205(b). For purposes of the PIA, a “public
record” is “the original or any copy of any documentary material,”
in “any form,” that is “made by” or “received by” “a unit or an
instrumentality of the State or of a political subdivision . . . in
connection with the transaction of public business.” GP § 4-
101(k)(1); see also 106 Opinions of the Attorney General 100, 101
(2021). A person may request a public record from a custodian,
who is defined as, among other things, an “authorized individual
who has physical custody and control of a public record.” GP § 4-
101(d)(2). The custodian’s obligations include granting or denying
a PIA request within certain time limitations, GP § 4-203(a), and,
if a request is denied, providing certain information to explain the
denial, GP § 4-203(c).

The PIA’s provisions also contain exemptions from the
general rule of disclosure for certain kinds of records or
information contained in records. Some of these exemptions are
merely discretionary, giving the agency the option to withhold the
records from public inspection, but others are mandatory and
therefore require shielding from disclosure under the PIA. Many
of these mandatory exemptions “are intended to address the
reasonable expectation of privacy” that individuals have in
information about them that may be contained in public records.
Immanuel v. Comptroller, 449 Md. 76, 82 (2016) (quoting
University Sys. of Md. v. Baltimore Sun, 381 Md. 79, 88 (2004)).
For instance, GP § 4-306 requires a custodian to deny inspection of
certain hospital records that contain “general or specific
information about one or more individuals,” and, under GP § 4-
329(b)(1), a custodian must redact “the part of the public record
that contains . . . medical or psychological information about an
individual, other than an autopsy report of a medical examiner.” A
custodian may be civilly liable for “actual damages” if a court finds
that the custodian “willfully and knowingly allow[ed] inspection or
use of a public record” in violation of the PIA and “the public
record names or, with reasonable certainty, otherwise identifies the
individual” by certain identifying factors, including “an address.”
GP § 4-401(a); see also GP § 4-402(a)(1) (providing criminal
penalties for a person who “willfully or knowingly violate[s] any
provision of [the PIA]”).

B. The PIA and Emergency Service Provider Records

In the fifty-some years since the PIA was enacted, questions
have arisen about whether records related to, and generated by,
emergency service providers must be disclosed under the PIA. In
Gen. 60] 63

1986, we addressed a question of whether “tape recordings of calls
to 911 Emergency Telephone System centers” were subject to
disclosure and, if so, whether there were exemptions from
disclosure that might require or permit denial of inspection of such
records. 71 Opinions of the Attorney General 288 (1986). At that
time, the “minimum requirements” for all local 911 systems
included “electronic recording, with playback capability, of all
incoming calls.” Id. at 289. The tape recordings were “physically
maintained in the local 911 emergency communications centers.”
Id. We concluded that, “[i]n light of the PIA’s broad scope, there
is no question that the 911 emergency centers operated by the
counties are governmental agencies subject to the PIA and that the
tape recordings of telephone calls to those centers are public
records within the meaning of the PIA.” Id. at 290.

Although it was clear that 911 recordings were public records
generally subject to disclosure under the PIA, we also recognized
that “[p]articular calls for emergency assistance might well reveal
intimate personal information about the caller or others,” and stated
that, when the requester was not a person in interest,1 “the PIA’s
exceptions can and should be construed somewhat more liberally
than would otherwise be the case.” Id. at 291. We explained that
“statements concerning an injured or ill person’s symptoms or
condition, provided to a 911 center operator for the purpose of
obtaining appropriate emergency medical care, are ‘medical or
psychological information’ that must be withheld” under what is
now § 4-329(b) of the PIA. Id. at 292. Thus, we concluded, “if
access to a tape is requested, the tape must be reviewed to
determine whether portions of it contain information that must be
deleted before the tape’s release.”2 Id.; see also 90 Opinions of the
Attorney General 45, 53-54 (2005) (concluding that “specific
information” in an ambulance dispatch event report “concerning an
individual’s medical history or condition . . . should be redacted
before the record is disclosed”); PIA Compliance Bd. Op. No. 24-
93, at 7 (Aug. 27, 2024) (finding that GP § 4-329(b) applied to
certain portions of police officer body worn camera footage of an
1
A “person in interest” is usually the “person or governmental unit
that is the subject of a public record or a designee of the person or
governmental unit.” GP § 4-101(g).
2
We also considered in our 1986 opinion whether other exemptions
might apply to 911 call center recordings, including what is now § 4-351(a),
the PIA’s discretionary exemption for records of investigations. 71
Opinions of the Attorney General at 294-95. We concluded that the
exemption might apply under certain circumstances. Id. In light of your
focus on mandatory exemptions—i.e., records or information for which
inspection must be denied—we do not detail that portion of the opinion here.
64 [110 Op. Att’y

interaction between police and an individual who was later taken
to the hospital).
C. Radio Scanners and Emergency Services Communications

In compliance with our policy for opinion requests from local
governments, you have provided a memorandum from the
Wicomico County Attorney addressing the status of police radio
dispatch calls under the PIA. In that memorandum, the County
Attorney explains that, “[h]istorically, anyone in Wicomico County
with a capable radio scanner could tune into the appropriate
channel for police, fire or EMS and freely listen to the broadcasts
as they happened.” Memorandum from Paul Wilber, Wicomico
County Attorney, to Wicomico County Executive 1 (Sept. 10,
2024) (“Wilber Memorandum”); see also Terrence McCoy,
Listening, But Finding Less to Hear, Wash. Post, Dec. 31, 2018, at
B04 (providing anecdotal and historical information about
hobbyists who listen to police scanners). Recently, however, “all
police radio dispatch transmissions were encrypted so that any
radio or scanner outside of the police force would no longer be able
to access the newly encrypted police radio dispatch transmissions.”
Wilber Memorandum 1. According to the County Attorney, the
encryption applies only to police transmissions, and the
transmissions of local fire or EMS services “can still be easily
accessed.” Id. Nevertheless, the County Attorney states that “[t]his
new prohibition on citizens freely listening into the Police radio
dispatch calls has caused some concerns among local individuals
pursuing the transparent reporting and communications by the
Police force.” Id.3
Wicomico County is not alone in moving to encrypt law
enforcement radio dispatch transmissions. Many large cities,
including Denver, San Francisco, Baltimore, Chicago, and New
York, have encrypted emergency services radio communications to
varying degrees. See Ernesto Londoño, The Wildly Popular Police
Scanner Goes Silent for Many, Int’l N.Y. Times, Dec. 27, 2023, at
9. As in Wicomico County, that decision has led to criticism from
pro-transparency and police accountability advocates. See, e.g.,
Eric Bedner, Police Encrypting Radio; Concerns Raised, Record-
Journal (Meriden, Conn.), Oct. 16, 2024, at C001 (reporting
comments of ACLU of Connecticut executive director that
“[p]olice are public servants and should be required to operate with
a measure of accountability and transparency,” and that
3
The County Attorney clarifies that the issue “relates only to police
dispatch transmissions not to any subsequent encrypted operational
transmissions.” Wilber Memorandum 1.
Gen. 60] 65

“[e]ncrypted communications in policing prevent the public,
journalists, and advocates from accessing information about their
communities in real time”).

Some jurisdictions have thus looked for alternative ways to
balance the interests of security and transparency. For example, in
Baltimore City, the police department has “encrypt[ed] its radio
traffic and implement[ed] a 15-minute delay on live radio
broadcasts available only” on an internet platform called
“Broadcastify,”4 though we do not know all the details of that
arrangement. See Darcy Costello, Baltimore Police to Encrypt
Radio Transmissions and Offer Public Access on 15-Minute Delay,
Balt. Sun, June 30, 2023. Some other jurisdictions have considered
and rejected delayed broadcasting, citing concerns about
transmitting witness and victim information over the radio to the
public. See, e.g., Jeffrey A. Roberts, Its Radio Transmissions
Encrypted Since 2016, Aurora Police Considered—Then
Rejected—a Delayed Public Feed on Broadcastify, Colorado
Freedom of Information Coalition (May 30, 2024),
https://coloradofoic.org/its-radio-transmissions-encrypted-since-2016-
aurora-police-considered-then-rejected-a-delayed-public-feed-on-
broadcastify/. In some of those jurisdictions, other options have
been explored, such as providing news media with special access
to real-time communications via scanners that can receive the
encrypted communications. Id.
II
Analysis

We turn to your question of whether the Public Information
Act applies to delayed broadcasts of law enforcement dispatch
communications and, if so, what limitations the Act might place on
their disclosure.

4
Tactical communications by the Special Weapons and Tactics
(“SWAT”) division have apparently been fully encrypted since 2021 and
are not available on the delayed broadcast. See Press Release, Baltimore
Police Department, BPD to Implement Timed Encryption While
Providing Public Streaming of Radio Transmission (June 30, 2023),
available at https://www.baltimorepolice.org/news/bpd-implement-
timed-encryption -while-providing -publi c -streaming -radio -
transmission#:~:text=Yes.,media%20and%20public%20via%20Broadc
astify.
66 [110 Op. Att’y

A. The PIA Restricts the Disclosure of Certain Information
from “Public Records”
To answer your question, we begin by stressing two key
aspects of the PIA. The first is that the PIA’s provisions apply
solely to “public records,” as defined by the Act. GP § 4-201(a).
That is, the PIA governs only “documentary material” that is “made
by” or “received by” a unit of State government or a political
subdivision in the transaction of public business. See GP § 4-
101(k) (defining “public record”). The definition includes
documentary material that is “in any form,” including “a
recording” or “a tape,” GP § 4-101(k)(1)(ii), and thus clearly
applies to audio recordings when made or received by the
government. But the definition does not apply (and the Act thus
has not historically been implicated) when scanners merely pick up
unencrypted police radio transmissions in real time, because that
interception5 does not, at that point, create “documentary material”
that has been preserved in some way. See GP § 4-101(k). Rather,
the scanners simply pick up passing radio transmissions that are
not, in and of themselves, “public records” covered by the PIA.

The second key aspect of the PIA relevant here is that the
PIA’s mandatory exemptions generally prohibit custodians from
disclosing protected records (or information from those records)
regardless of whether disclosure is requested under the PIA. See,
e.g., GP § 4-328 (“Unless otherwise provided by law, a custodian
shall deny inspection of a part of a public record, as provided in
this part.”). For example, if a record qualifies as a “personnel
record of an individual” that is protected under GP § 4-311, then a
custodian not only must deny inspection if the record is requested
under the PIA, but also may not otherwise disclose that record by,
for instance, affirmatively posting the record on the agency’s
website. See, e.g., 65 Opinions of the Attorney General 365, 370
(1980) (concluding that, if a local official obtained someone’s
personnel file and then voluntarily disclosed the contents to

5
Maryland’s Wiretap Act generally prohibits the willful interception
of electronic, oral, or wire communications without the consent of all
parties. Md. Code Ann., Cts. & Jud. Proc. § 10-402(a). However, the
Wiretap Act contains exceptions, including one that permits interception
of radio communications transmitted “[b]y any governmental, law
enforcement, civil defense, private land mobile, or public safety
communications system, including police and fire, readily accessible to
the general public.” Id. § 10-402(c)(7)(ii)(2); see also 71 Opinions of
the Attorney General at 289 n.5 (stating that “[t]he taping of such
emergency telephone calls is lawful, notwithstanding the general
prohibition against wiretapping”).
Gen. 60] 67

members of the press, he would violate the PIA by “intentionally
releas[ing] prohibited information” covered by a mandatory
exemption); cf. 90 Opinions of the Attorney General 17, 22 (2005)
(opining that a certain type of meeting must be closed “to avoid a
violation of the provision of the Public Information Act prohibiting
public disclosure of a personnel record”); Letter from Jack
Schwartz, Chief Counsel, Opinions & Advice, to Barbara Trader,
at 2 (Oct. 7, 1996) (advising that, under the PIA, a public body
cannot “divulge . . . information derived from a personnel record”
in an open meeting). A contrary interpretation would render the
PIA’s mandatory exemptions meaningless.

Based on these principles, once a law enforcement agency or
other governmental emergency services provider records its radio
communications, those recordings are clearly public records
subject to the PIA, 71 Opinions of the Attorney General at 288, and
the entity can only disclose the recordings in compliance with the
PIA’s mandatory exemptions. In other words, even though the live
transmission of the communications over the radio is not a “public
record,” the actual recordings made by the government meet the
definition of “public record” because they are “documentary
material” that has been “made” or “received” by the law
enforcement agency as it carries out its public business. GP § 4-
101(k)(1). Therefore, if a law enforcement agency were to record
its radio transmissions and then broadcast those recordings on a
delay, the law enforcement agency would need to comply with the
PIA’s prohibitions on disclosure and redact from those recordings,
before the broadcast, any information covered by mandatory PIA
exemptions.
However, more difficult questions arise when a third party,
such as a contractor, is involved in the creation of the recording or
maintains sole possession of the recording. For example, to
facilitate delayed broadcasts of dispatch communications, there
might be some circumstances where a recording of the law
enforcement agency’s radio transmissions is generated and
broadcast by the employees or facilities of a private contractor, and
the recording never comes into the agency’s possession. If that
recording is not a “public record,” it can be broadcast without
redacting information covered by the PIA’s mandatory
exemptions. But if it is a public record, its disclosure would be
subject to the PIA’s mandatory exemptions, and the recording
would need to be reviewed (and, if necessary, redacted) before it
could be broadcast or otherwise released.
68 [110 Op. Att’y

B. Federal Case Law Offers Persuasive Authority for Defining
“Public Records” Under the PIA
We begin our analysis of that more complicated issue with the
PIA’s definition of “public record.” As noted above, to count as a
“public record,” a recording must be either “made by” or “received
by” a unit or instrumentality of State or local government in
connection with public business. GP § 4-101(k)(1)(i). Although
the underlying communications memorialized by the recording
may have been “made by” a law enforcement agency in the sense
that the agency’s officers generated the oral communications, the
record at issue is the recording used in the process of broadcasting,
on a delay, those communications. The oral communications by
themselves are not “documentary material” so cannot be a “public
record.” Our focus is thus on when a recording generated from the
oral communications is a “public record.”

In the past, when difficult questions have arisen about
whether a record is a “public record” under the PIA, we have relied
on federal cases interpreting the similar term “agency record” in
the federal Freedom of Information Act (“FOIA”). Because the
PIA and FOIA have the same general purpose, 80 Opinions of the
Attorney General 257, 259 (1995), and because many provisions of
the PIA were modeled on analogous provisions in FOIA, see, e.g.,
92 Opinions of the Attorney General 26, 45 (2007), “interpretations
of the federal statute are [often] persuasive in interpreting” the PIA,
80 Opinions of the Attorney General at 259.

Under FOIA, the United States Supreme Court has developed
a two-part definition of “agency record.” A record is an “agency
record” if: (1) the agency “either create[d] or obtain[ed]” the
requested materials, and (2) the agency is “in control of the
requested materials at the time the FOIA request is made,” meaning
“that the materials have come into the agency’s possession in the
legitimate conduct of its official duties.” U.S. Dep’t of Justice v.
Tax Analysts, 492 U.S. 136, 144-45 (1989). The test is derived, in
part, from the Court’s earlier decision in Forsham v. Harris, 445
U.S. 169 (1980). In that case, the Court held that “written data
generated, owned, and possessed by a privately controlled
organization receiving federal study grants” were not “agency
records” subject to FOIA’s provisions, even though the federal
government had funded the study. Id. at 171. Although the federal
agency had the right to obtain the data in question, it had not
exercised that right, and the Court explained that “FOIA applies
[only] to records which have been in fact obtained, and not to
records which merely could have been obtained.” Id. at 186.
Gen. 60] 69

Forsham involved activities that the federal government merely
funded, but federal courts have also applied the same two-part test
to analyze the status of records of third parties with a closer
relationship to a government agency, such as contractors. See, e.g.,
Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515
(D.C. Cir. 1996); Rocky Mountain Wild, Inc. v. U.S. Forest Serv.,
878 F.3d 1258, 1262 (10th Cir. 2018).

Our Office has also relied on this federal case law to analyze
whether third party records qualify as “public records” under the
PIA. In a 1995 opinion, relying primarily on Forsham, we
concluded that records of a licensed child care facility were not
“public records” where the records were “maintained by private
persons who have applied for residential child care facility licenses
from the Department of Human Resources” and were “reviewed by
the Department . . . but remain[ed] in the custody of the applicant.”
80 Opinions of the Attorney General at 257. Consistent with
Forsham and citing Forsham for support, we concluded that
because the records were “created and maintained by a private
entity” and never came into the “possession of a government
agency,” the PIA did not cover them. Id. at 259, 261. The PIA
Compliance Board, which adjudicates certain disputes under the
PIA, has also recently cited Forsham in concluding that an outside
attorney’s invoices were not “public records” of a municipality
where they did not come into the municipality’s possession. PIA
Compliance Bd. Op. No. 25-73, at 11 (Aug. 15, 2025).
To be sure, the definitions of “agency record” and “public
record” are not always the same. See Office of the Governor v.
Washington Post Co., 360 Md. 520, 534-36 (2000) (concluding
that, even though White House records are not covered by FOIA
because the President is not an “agency,” the PIA nonetheless
applied to the Governor because its scope was defined by the term
“public record” rather than “agency record”). And although federal
interpretations of FOIA have generally been given “significant
weight” in interpreting analogous provisions of the PIA, e.g.,
Amster v. Baker, 453 Md. 68, 79 (2017), it has become increasingly
important in recent years to scrutinize whether Maryland should
follow a federal interpretation of an analogous statute as the U.S.
Supreme Court’s strict textualist approach to statutory
interpretation increasingly diverges from the Maryland courts’
approach.

More specifically, the U.S. Supreme Court in recent years has
become more and more likely to declare that its “analysis begins
and ends with the text.” E.g., Little Sisters of the Poor Saints Peter
70 [110 Op. Att’y

& Paul Home v. Pennsylvania, 591 U.S. 657, 676 (2020). This
brand of textualism is based on the premise that there is no such
thing as legislative intent apart from the text, and that “there is no
way to tell what” a legislature “intended except the text.” Antonin
Scalia & John F. Manning, A Dialogue on Statutory and
Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610, 1612
(2012); see also, e.g., Oklahoma v. Castro-Huerta, 597 U.S. 629,
642 (2022) (“Congress expresses its intentions through statutory
text passed by both Houses and signed by the President (or passed
over a Presidential veto).”).

By contrast, although the Maryland courts always “start with
the text,” they seek to “ascertain and effectuate the real and actual
intent of the Legislature,” United Parcel Serv. v. Strothers, 482 Md.
198, 212 (2022) (emphasis added) (internal quotation marks
omitted), including by consulting legislative history and other
“extrinsic sources” of that intent, Berry v. Queen, 469 Md. 674,
687-88 (2020) (quoting In re S.K., 466 Md. 31, 50 (2019)). In fact,
even when the text of a statute appears clear on its face, our
Supreme Court will often consult legislative history and other
extrinsic sources to confirm that its reading is in fact consistent
with the real and actual intent of the General Assembly. See, e.g.,
Pabst Brewing Co. v. Frederick P. Winner, Ltd., 478 Md. 61, 76
(2022). Thus, when a federal interpretation of FOIA stems from
principles of statutory construction that diverge from those of
Maryland statutory interpretation, we should closely examine
whether it makes sense to apply that reading to the PIA.

Here, however, we think the federal courts’ two-part Tax
Analysts test aligns with the text, structure, and purposes of the
PIA. The first prong of the federal test—i.e., that the agency must
have “created or obtained” the record—is consistent with the PIA’s
requirement that a “public record” be “made by” or “received by”
a governmental unit or instrumentality in connection with public
business. See GP § 4-101(k)(1)(i). And the second prong—i.e.,
that the federal agency controls the record at the time of the
request—is consistent with the PIA’s implicit requirement that
public records must have a government “custodian.” The PIA
generally assumes that a public record will have a “custodian,” see
GP § 4-202(a) (requiring a person who wishes to inspect a record
to request it from the custodian), and further assumes that only
government entities will be “custodians.” For example, the term
“official custodian,” referring to the person with ultimate authority
over a record, is explicitly limited to “officer[s] or employee[s] of
the State or a political subdivision.” GP § 4-101(f). And the PIA’s
judicial review provision assumes the defendant will be a
Gen. 60] 71

government entity. See, e.g., GP § 4-362(c)(3)(i), (d)(1), (e), (f).
Consistent with that understanding, our 1995 opinion concluded
that, in general, only records in the possession of a governmental
entity are public records. See 80 Opinions of the Attorney General
at 259-60. Thus, even though a control requirement does not
appear expressly on the face of the PIA, it is part of the surrounding
context of the statutory scheme and necessarily informs the
definition of a “public record” under Maryland law.
Because the federal test is consistent with the PIA, then, we
will use the two-part Tax Analysts test as the starting point for our
analysis of whether recordings created as part of a delayed
broadcast of police radio transmissions would be “public records”
under the PIA. We will discuss each prong in turn.

C. Application of the Federal Test to Records Generated by
Third Parties

1. The First Prong: Whether the Agency Created or
Obtained the Records

Under the first prong of the test, records generated by third
parties, including contractors, generally will not be public records
unless the agency actually receives them. That is because such
records would not ordinarily be viewed as created (or made, to use
the language of Maryland’s statute) by the agency. See 80
Opinions of the Attorney General at 258-60; Forsham, 445 U.S. at
185-86; Rocky Mountain Wild, 878 F.3d at 1263; PIA Compliance
Bd. Op. No. 25-73, at 11; Office of the Attorney General, Maryland
Public Information Act Manual 1-9 (19th ed. 2024) (“PIA
Manual”).

But some federal courts have held that a record can potentially
qualify as “created by” an agency when it is created by a third party
on behalf of the agency, at least when the agency exercises
“extensive supervision and control” over the creation of the record.
See, e.g., Burka, 87 F.3d at 515; Forest County Potawatomi Cmty.
v. Zinke, 278 F. Supp. 3d 181, 196 (D.D.C. 2017); Chicago Tribune
Co. v. U.S. Dep’t of Health & Hum. Servs., 1997 WL 1137641, at
*13-14 (N.D. Ill. Mar. 28, 1997). In Burka, for instance, the United
States Court of Appeals for the D.C. Circuit held that data tapes
generated by a contractor for an agency study were effectively
“created by” the agency because the agency had “extensive
supervision and control . . . over collection and analysis of the
data.” 87 F.3d at 515. The agency itself was conducting the study
and had designed a survey and questionnaire as part of the research
72 [110 Op. Att’y

methodology but outsourced the actual collection of the data to a
contractor. See id. at 510-12. The study protocol even made
agency employees responsible for “[d]ay-to-day supervision” of
the study, and survey personnel were instructed to identify
themselves as calling on behalf of federal agencies. Burka v. U.S.
Dep’t of Health & Hum. Servs., 1993 WL 13140669, at *2-3
(D.D.C. Dec. 13, 1993).

Although not all federal courts agree that a record generated
on behalf of an agency can qualify as having been “created by” the
agency, see, e.g., Rocky Mountain Wild, 878 F.3d at 1262, we think
Maryland courts would more likely conclude that there are at least
some circumstances where a document created by a third party on
behalf of a government agency can qualify as a public record. The
PIA, by its terms, applies to records “made by” a government unit.
The ordinary meaning of “made by” is broad enough to encompass
at least some records made through an intermediary. See, e.g.,
Black’s Law Dictionary 1144 (11th ed. 2019) (“make” can mean
“[t]o cause (something) to exist”); Cambridge Dictionary,
https://dictionary.cambridge.org/dictionary/english/make (last
visited Sept. 15, 2025) (“to produce something” or “to cause
something,” or “to produce; cause to exist or happen; bring about”).
In addition, cases in other contexts recognize that a record can be
“made by” a person when the person acted through an intermediary
but was, in substance, directly responsible for the record’s creation.
See, e.g., United States v. Giles, 300 U.S. 41, 48-50 (1937) (holding
that the word “make,” in a criminal statute prohibiting the making
of false entries in bank records, included deliberate action causing
the creation of a false entry through an intermediary); United States
v. Danielczyk, 788 F. Supp. 2d 472, 479-82 (E.D. Va. 2011)
(holding that donors “made” campaign contributions when they
arranged for others to contribute funds with the expectation of
reimbursement), rev’d in non-relevant part, 683 F.3d 611 (4th Cir.
2012).

To be clear, however, it is not enough that the government
was the but-for cause of a record’s creation. That, without more,
does not support a conclusion that a record was “made by” the
government. See Denver Post Corp. v. Ritter, 255 P.3d 1083, 1091
(Colo. 2011) (en banc) (rejecting the view that “any writing
memorializing an event in which a public official participates
would constitute a ‘writing made . . . by the state’”). So, for
example, the fact that an activity was funded by the government,
without more, does not mean the government “created” or “made”
the records. See, e.g., Burka, 87 F.3d at 515; Chicago Tribune,
1997 WL 1137641, at *13; ExxonMobil Corp. v. Department of
Gen. 60] 73

Commerce, 828 F. Supp. 2d 97, 105-06 (D.D.C. 2011). Nor is it
enough, in the case of contractors, that the agency generally
“monitors the performance and progress of the contractor,”
ExxonMobil Corp., 828 F. Supp. 2d at 106, as that could transform
most contractor records into agency records. See also PIA
Compliance Bd. Op. No. 25-73, at 11-12 (concluding that invoices
generated by outside attorney during representation of town, which
were sent to insurance carrier but not to town, were not “public
records” of town). Finally, that a third party may have an agency
relationship with a government unit, without more, does not mean
the unit “made” the third party’s records. Id.

In any event, for those federal courts that have adopted the
theory that records made by a third party on behalf of the
government can qualify as “agency records,” the courts have
considered the totality of the circumstances in determining whether
the agency effectively “created” the record. One circumstance
courts have considered is the extent to which the agency controls
the third party’s activities, especially the creation of the disputed
record itself. Burka, 87 F.3d at 511-12; Chicago Tribune, 1997
WL 1137641, at *13-15; Beveridge & Diamond, P.C. v. U.S. Dep’t
of Health & Hum. Servs., 85 F. Supp. 3d 230, 237 (D.D.C. 2015).
Relatedly, courts might also consider if the third party is
conducting a task that applicable law requires the agency to
perform and specifically requires the agency to retain responsibility
for and control over. See Zinke, 278 F. Supp. 3d at 196. But see
Buholtz v. U.S. Marshals Serv., 233 F. Supp. 3d 113, 116 (D.D.C.
2017) (records relating to prisoner held in local jail that contracted
with Marshals Service were not created on behalf of Marshals
Service). And in the case of a contractor, the language of the
contract itself may also be relevant. See Zinke, 278 F. Supp. 3d at
196 (considering it relevant that the contract expressly provided the
contractor was acting “on behalf of” the agency); In Defense of
Animals v. National Insts. of Health, 543 F. Supp. 2d 83, 100
(D.D.C. 2008) (examining contractual provisions in concluding
that government agencies had “obtained” relevant records).

On the other hand, the fact that the government could have
accessed the record upon request does not mean that the record was
created “on behalf of” the government. Forsham, 445 U.S. at 185.
Similarly, the fact that the agency relied on the records does not
mean that the third party acted on behalf of the agency in creating
them. Rocky Mountain Wild, 878 F.3d at 1262.

Ultimately, cases where federal courts have found that a
contractor’s or other third party’s record was “created by” the
74 [110 Op. Att’y

federal agency are the exception, not the rule. Even those federal
courts that have recognized this possibility have required a high
degree of supervision and control by the agency over the third
party, or other significant indicia of an especially close relationship
between the agency and the third party. See, e.g., Burka, 87 F.3d
at 515. The ordinary agency-contractor relationship—in which the
agency sets the overall objectives, monitors progress at a high
level, and receives final deliverables, but leaves day-to-day
operations up to the contractor—generally will not suffice to make
the contractor’s records into agency records. See ExxonMobil, 828
F. Supp. 2d at 106. But we cannot discount the possibility that, in
some circumstances, an agency will be found to have “created” (or
“made”) records through a third party.

2. The Second Prong: Whether the Agency Controls the Records

Next, under the second prong of the Tax Analysts test, a record
is subject to FOIA only if it is in the agency’s control at the time
the FOIA request is made, i.e., the record has “come into the
agency’s possession in the legitimate conduct of its official duties.”
492 U.S. at 145. The most common factors that courts consider in
making that determination seem to be:

(1) the intent of the document’s creator to
retain or relinquish control over the records;
(2) the ability of the agency to use and dispose
of the record as it sees fit; (3) the extent to
which agency personnel have read or relied
upon the document; and (4) the degree to
which the document was integrated into the
agency’s record system or files.

Zinke, 278 F. Supp. 3d at 196. But these factors are not exclusive,
and courts have considered others when circumstances warrant.
See, e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208,
220-21 (D.C. Cir. 2013) (concluding that “the four-factor test is not
the only test relevant” when “special policy considerations” “are at
stake”). The analysis thus depends on the totality of the
circumstances. E.g., Consumer Fed’n of Am. v. Department of
Agric., 455 F.3d 283, 287-88 (D.C. Cir. 2006).

In most situations, the question of control will be easy to
resolve. For obvious reasons, the government will not typically
have control over a third party’s records. See, e.g., Rocky Mountain
Wild, 878 F.3d at 1264. For example, when the request is for a
third party’s internal records that the agency has never received or
Gen. 60] 75

reviewed, that fact alone will typically lead most, or all, of the
relevant factors to point away from a finding of control. See, e.g.,
Zinke, 278 F. Supp. 3d at 197-99; Physicians Comm. for
Responsible Medicine v. U.S. Dep’t of Agric., 316 F. Supp. 3d 1,
10 (D.D.C. 2018); Beveridge & Diamond, 85 F. Supp. 3d at 240;
ExxonMobil, 828 F. Supp. 2d at 106-08.

On occasion, however, some courts have found, under the
totality of the circumstances, that an agency had constructive
control of a record—i.e., control without actual possession. See,
e.g., Burka, 87 F.3d at 515; Chicago Tribune, 1997 WL 1137641,
at *15. In Burka, for instance, the court reasoned that the agency
had “constructive control” over data tapes generated by its
contractor because the agency “ordered [the] creation of the
[tapes], plan[ned] to take physical possession of the tapes at the
conclusion of the project,” had “indicated it [would] disclose the
information after its [study was] completed” while prohibiting the
contractor “from making any independent disclosures,” and had
“relied significantly on the [tapes] in writing articles and
developing agency policies.” 87 F.3d at 515.

There are reasons to question whether this constructive
control theory is consistent with U.S. Supreme Court precedent.
The Court in Tax Analysts equated “control” with “possession” and
did not suggest the possibility of constructive control. 492 U.S. at
145. Thus, several federal courts have declined to adopt the
constructive control theory or expressed questions about whether it
should be adopted. See, e.g., Rocky Mountain Wild, 878 F.3d at
1263 (questioning whether “this ‘constructive possession’ theory is
consistent with Supreme Court precedent”); Rojas v. Federal
Aviation Admin., 989 F.3d 666, 677 (9th Cir. 2021) (en banc)
(“Documents that are not in an agency’s possession do not
constitute ‘agency records’ even if the agency could have obtained
them by asking a third party to produce them.”); Bloomberg L.P. v.
Board of Governors, 649 F. Supp. 2d 262, 275 (S.D.N.Y. 2009)
(“The Supreme Court’s teachings . . . certainly do not compel
adoption of the constructive obtainment and control theory . . . .”);
Microsoft Corp. v. IRS, 2023 WL 255801, at *6 (W.D. Wash. Jan.
18, 2023) (declining to apply the constructive possession test from
Burka). We, too, arguably rejected the idea of constructive control
in our 1995 opinion, emphasizing that governmental possession of
records is “fundamental to their being ‘public records’” under the
PIA. 80 Opinions of the Attorney General at 260.

However, we cannot dismiss the possibility that the Maryland
courts would recognize constructive control as sufficient in at least
76 [110 Op. Att’y

some limited circumstances. More recently than our 1995 opinion,
Maryland’s highest court has suggested that an agency can
sometimes qualify as a PIA custodian even without “immediate
physical custody” of records. See Glass v. Anne Arundel County,
453 Md. 201, 235-36 (2017). The Court in that case determined
that a police department remained a “custodian” of records even
though it had delegated storage and maintenance of those records
to a separate unit, the county IT department. See id. at 235-36.
That was because, even though the police department arguably no
longer had physical custody of the records, it retained ultimate
control over them. See id.6 Thus, although Glass involved a
somewhat different situation—records that originated with the
agency and were later sent out of its direct custody—there is some
support in Maryland law for the idea that direct physical custody of
a record is not always a prerequisite of “custodian” status (or, in
the language of the federal test, for a finding of “control”).

Another reason that the Maryland courts might recognize the
possibility of constructive control in limited cases is to avoid
circumvention of the PIA. The U.S. Supreme Court in Tax
Analysts noted, albeit in dicta, that the control analysis might
incorporate an anti-circumvention component. That is, in resolving
the “control” question, the Court suggested that it might consider
whether materials were “purposefully routed . . . out of agency
possession in order to circumvent [an impending] FOIA request.”
492 U.S. at 146 n.6 (alterations in original). Thus, an agency might
qualify as having “control” of documents when its lack of
immediate possession results from an attempt to circumvent FOIA.
See Rojas, 941 F.3d at 408. Some federal courts have similarly
expressed concern that a “simple possession” standard, without any
possibility for constructive control, “would permit agencies to
insulate their activities from . . . disclosure by farming out
operations to outside contractors.” Ryan v. Department of Justice,
617 F.2d 781, 785 (D.C. Cir. 1980); see also Chicago Tribune,
1997 WL 1137641, at *16-17; Zinke, 278 F. Supp. 3d at 197; cf.
Evertson v. City of Kimball, 278 Neb. 1, 12 (2009) (citing a similar
anti-circumvention rationale in holding that some records created
by a contractor during an independent misconduct investigation
were public records).

Although the PIA does not incorporate any express anti-
circumvention principle, it does state a rule of interpretation that
6
Consistent with that view, we have also long said in our Office’s
PIA Manual that an agency’s records “remain ‘public records’ even if
the agency outsources the task of maintaining them to a private
contractor.” PIA Manual at 1-9.
Gen. 60] 77

the Act should generally “be construed” broadly to promote
individuals’ right “to have access to information about the affairs
of government,” while at the same time to avoid “unwarranted
invasion[s] of the privacy . . . of person[s] in interest.” GP § 4-103.
That rule of interpretation could favor reading the Act, when
possible, to limit circumvention of both the PIA’s openness
requirements and its mandatory exemptions, at least those that
protect personal privacy. Thus, although we do not mean to
endorse a test that would recognize records as “public records”
even in cases when the PIA’s text cannot be read to support that
result, a court might well take into account the need to avoid
circumvention of the Act when interpreting the terms “made by” or
“custodian” in the PIA.7 For all those reasons, then, we will assume
that there are some circumstances under which strict physical
possession of records will not always required to satisfy the
“control” prong of the Tax Analysts test.

D. Application of the PIA, Informed by Federal Law, to
Recordings Used in Delayed Broadcast of Law Enforcement
Radio Transmissions

Turning back to your question, how do these principles apply
to recordings used to facilitate delayed broadcasts of law
enforcement radio dispatch transmissions? We cannot provide a
universal response to that question because it will likely require
analysis of the totality of the circumstances in each case. However,
we can provide some guidance and a framework for analyzing the
question.

First, a court would analyze whether the recording is “made
by” the law enforcement agency. GP § 4-101(k)(1)(i). In doing
so, assuming a third party was involved in the recording’s creation,
the court would likely focus on the degree of supervision and
control exercised by the law enforcement agency over the
contractor or other third party that generates and broadcasts the
recording. See, e.g., Burka, 87 F.3d at 515; Zinke, 278 F. Supp. 3d
at 196; Chicago Tribune, 1997 WL 1137641, at *13-14. In
particular, if the agency directed the creation of the particular
recording at issue—with extensive supervision and control over
that activity—it is more likely a court would find that the agency
7
In the separate context of the Open Meetings Act—which is
similarly supposed to be broadly construed to advance its purposes—
Maryland’s courts have suggested that the statute’s terms should be
construed so as to “frustrate all evasive devices.” E.g., City of New
Carrollton v. Rogers, 287 Md. 56, 72 (1980) (quoting Town of Palm
Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974)).
78 [110 Op. Att’y

“made” or “created” the recording than if the agency merely
dictated the overall activity or ultimate result of the project. In
Burka, for example, where the court found the first prong satisfied,
the agency had designed the study and specifically directed the
collection of particular data. See Burka, 87 F.3d at 511-12, 515.
But in Rocky Mountain Wild, which found the first prong not
satisfied, the agency exercised only general supervision over the
contractor, not detailed control over its day-to-day performance.
See 878 F. Supp. 3d at 1261. Apart from the degree of control, a
court might also consider the language of the contract, if any,
between the law enforcement agency and the third party, especially
how it characterizes the relationship between the two and the
amount of control that the agency has over the recording process.
See Zinke, 278 F. Supp. 3d at 196.

Second, a court would analyze whether the law enforcement
agency is a “custodian” of the recording. We expect that this
analysis, as under the federal test, would focus largely on the extent
of control that the law enforcement agency has over the recording
after it is made. In considering the amount of control, the court
would likely consider, among other factors, the intent of the
contractor or other third party to retain or relinquish control over
the recordings, the ability of the agency to use and dispose of the
recordings as it sees fit, the extent to which agency personnel have
accessed or relied upon the recordings, and the degree to which the
recordings were integrated into the law enforcement agency’s files.
See Zinke, 278 F. Supp. 3d at 196.

Some specific questions that might matter in this context
include where the recordings are stored, who has access to them,
and the extent of that access, such as whether the agency has the
ability to edit them. See Center for Bio. Diversity v. U.S. Forest
Serv., 2025 WL 947472, at *5 (D.D.C. Mar. 28, 2025). Another
relevant consideration might be the extent of the law enforcement
agency’s control over what the third party receives and is able to
record in the first place, see Chicago Tribune, 1997 WL 1137641,
at *15, or the extent of the law enforcement agency’s control over
what is disclosed to others, see id. at *15; Burka, 87 F.3d at 515.
Similarly, a court might consider the extent of independent
judgment exercised by the third party in creating the recording. See
Chicago Tribune, 1997 WL 1137641, at *15. To be clear, however,
a right of access to the recording alone is unlikely to support
finding constructive control. See Forsham, 445 U.S. at 182;
Beveridge & Diamond, 85 F. Supp. 3d at 237-38.
Gen. 60] 79

Finally, in close cases, a court might consider the extent to
which the law enforcement agency avoided having control of the
recordings for purposes of circumventing the PIA, including its
mandatory exemptions. Cf. Tax Analysts, 492 U.S. at 146 n.6. In
the scenario about which you have asked, that analysis is
complicated by the need to accommodate two important
considerations that are in some tension here: the PIA’s principle of
public “entitle[ment] to have access to information about the affairs
of government,” GP § 4-103(a), which is furthered by providing
near-contemporaneous delayed broadcasts of law enforcement
dispatch recordings, and the need to prevent evasion of the
mandatory exemptions in the PIA that protect privacy interests.

Although we cannot say how these standards would apply to
every factual situation, a spectrum of possibilities exists. At one
extreme, if the law enforcement agency itself records its own radio
transmissions, using its own employees, premises, and equipment,
the recording will clearly be a “public record.” At the opposite end
of the spectrum, a recording of an unencrypted live radio broadcast
made by a private citizen is not a “public record,” because (among
other reasons) the law enforcement agency did not direct the
recording’s creation and did not control the process for creating the
recording, nor is the recording itself in any sense under the law
enforcement agency’s control.

Between those extremes, whether a particular delayed-
broadcast arrangement produces “public records” subject to the
PIA’s mandatory exemptions will require fact-specific, case-by-
case analysis. But again, ultimately, we think that whether a
delayed-broadcast arrangement creates “public records” will
depend primarily on the degree of control the law enforcement
agency has over the creation of the recordings and over the
recordings themselves once created. Put simply, the more
independence the third party has from the law enforcement agency,
the less likely it is that a court would conclude that the recording
was “made by” the law enforcement agency or that the law
enforcement agency is a “custodian” of the recording. Conversely,
the more the third party acts as a mere technological platform for
broadcasting, and the less control it exercises over the recording,
the more likely it is that a court would conclude that the record was,
in substance, “made by” the law enforcement agency.8
8
Theoretically, on some facts, the third-party broadcaster itself could
be treated as a “unit” or “instrumentality” of State or local government.
This is a fact-based and often difficult inquiry that considers “[a]ll
aspects of the interrelationship” between the State and the entity in
80 [110 Op. Att’y

We recognize that some Maryland law enforcement agencies
are already using delayed-broadcast arrangements. We do not have
enough details about those arrangements to opine on whether they
are consistent with the PIA. Each law enforcement agency will
need to determine, after considering our opinion, whether the
specific delayed-broadcast arrangement it is using entails the
creation of public records. But these questions are far from settled
and, given the uncertainty about how the PIA would apply to
delayed-broadcast arrangements, we recommend that the General
Assembly consider clarifying how the PIA should apply in these
circumstances.

III
Conclusion

In sum, a delayed broadcasting arrangement is subject to the
PIA, and its mandatory exemptions, if and only if it involves the
creation of audio recordings that meet the PIA’s definition of a
“public record.” To count as a “public record,” a recording or other
document must have been “made by” (or “received by”) a unit or
instrumentality of State or local government. Although a document
generated by a third party generally will not qualify as “made by”
a government unit or instrumentality, the answer to your question
depends largely on the degree of supervision and control exercised
by the law enforcement agency over the creation of the recording
and over the recording itself. A right of access to the recording,
without more, will not make the recording a public record, and the
mere fact that a recording is created by a contractor generally will
not do so either. But more extensive indicia of control by the
agency over the recording process and the resulting recordings may
lead a court to conclude that the recordings are “public records”
subject to the PIA’s exemptions from disclosure. A court might
also consider, as a factor in its “public records” analysis, whether a
delayed-broadcast arrangement was designed to circumvent the
PIA’s transparency mandate or its mandatory exemptions. Thus,
whether a delayed-broadcast arrangement is covered by the PIA
depends on the specific details of the arrangement between the law

question. See, e.g., Andy’s Ice Cream, Inc. v. City of Salisbury, 125 Md.
App. 125, 139 (1999) (quoting A.S. Abell Publ’g Co. v. Mezzanote, 297
Md. 26, 35 (1983)). If the third-party broadcaster were itself a public
unit or instrumentality, records “made by” the broadcaster alone, in
connection with public business, would be subject to the PIA. See GP
§ 4-101(k). But the mere act of receiving and recording police radio
transmissions by itself, even under contract with a law enforcement
agency, is unlikely to make a third party into a “unit” or
“instrumentality” of government.
Gen. 60] 81

enforcement agency and the entity that performs the act of
recording.

Anthony G. Brown
Attorney General of Maryland
Sara Klemm
Assistant Attorney General
Thomas S. Chapman
Deputy Chief
Opinions and Advice
Patrick B. Hughes
Chief Counsel, Opinions and Advice