Can a referendum protect IG records access? Mayor Scott’s lawyers say no.

Legislation that would ask Baltimore voters to solidify the inspector general’s access to records is “fundamentally at odds” with state law, attorneys who work for Mayor Brandon Scott argued Wednesday.

The proposed ballot question, sponsored by Councilman Mark Conway, was introduced amid a dispute between Inspector General Isabel Mercedes Cumming and Scott over access to city legal records. The question, which would appear on ballots this fall if approved, would amend Baltimore’s charter to make Cumming a “co-custodian” of city records, ensuring that she would have access.

But that conflicts with the Maryland Public Information Act, a state law that supersedes Baltimore’s charter, city attorney Jeff Hochstetler argued during a hearing Wednesday, the council’s first on the measure.

The legislation would “amount to an illegal end run around the PIA,” Hochstetler said.

Whether or not Cumming is subject to the act has been a matter of debate since earlier this year when Scott’s administration cited the law as justification for cutting Cumming’s access to records.

Initially, city attorneys terminated the inspector general’s ability to read city legal records after they discovered that she and her staff had “unfettered access." They argued that access was a violation of attorney-client and work product privileges.

Weeks later, the administration blocked the office’s access to a wider swath of records after receiving legal advice from an attorney with the Maryland Office of the Attorney General. That guidance, which Attorney General Anthony Brown has since tried to distance himself from, said Cumming’s office was subject to restrictions in the public information act, which blocks access to sensitive records, including financial information and personnel documents.

Matt Neal, the city’s deputy inspector general, noted Wednesday that the public information act has existed for decades but was only recently “weaponized” against the inspector general’s office.

Cumming pointed to Brown’s public statements about the letter in which he said it was merely a “summary of the Maryland Public Information Act” and not a formal opinion of his office.

“One thing he didn’t say is that the opinion is wrong,” countered Stephen Salsbury, an attorney for the city. “That’s really at the heart of this whole question: whether the MPIA applies or not.”

Councilman John Bullock, who represents West Baltimore neighborhoods, questioned how long the city takes to fulfill public information act requests and whether it would be an impediment to Cumming’s work. Cumming said it took three months to receive records she requested on the Mayor’s Office of Neighborhood Safety and Engagement.

Conway urged his colleagues to ignore the advice of city attorneys, suggesting that other consequential legislation, such as the creation of the Baltimore Children and Youth Fund, would not have passed if legislators had heeded legal advice.

“I understand this is a highly political bill. I understand you’re being asked to do something you may not want to do, but that is our job,” said Conway, who represents North Baltimore.

The debate is playing out as Cumming is suing the Scott administration, asking a judge to force Scott’s team to fulfill subpoenas. The case remains pending, but last month the judge overseeing the case called the administration’s position “concerning.”

Northeast Baltimore Councilman Ryan Dorsey, chairman of the Charter Review Special Committee that is hearing Conway’s bill, questioned what the proposed ballot question would “legally solve.”

“The end here seems to be two conflicting points of view that are already being presented in a court of law,” he said.

Christoph Amberger, head of the Baltimore City Board of Ethics, disagreed. The court will decide whether Cumming can enforce subpoenas against the administration. That does not resolve the matter of whether the Maryland Public Information Act applies, he said.

Councilman Zac Blanchard, who represents parts of downtown and South Baltimore, questioned whether the council could request an opinion of the Maryland Attorney General. Only the mayor has that power, officials said. Blanchard asked officials representing the mayor to make such a request.

Dorsey recessed the hearing without calling for a vote, saying he plans to reconvene “before long.” Numerous members of the public testified and several made it clear they would be watching the outcome.

“You will be voted out,” attorney Tonya Bana told the group.