When Bureaucrats Call the Shots, We All Lose

The case of Andrew Glenn v. Maryland Department of Health is a cautionary tale showing what happens when unelected bureaucrats are given unbridled discretion to control the information we the citizenry are permitted to have. As we’ve reported here, and here, Glenn is a Maryland citizen who has tried for years now to get his state’s Department of Health to share with him public information about who owns and operates Maryland’s abortion clinics.  Glenn was motivated by public revelations in 2012 about some notoriously unqualified quacks who were preying on Maryland’s women in under-the-radar clinics, causing horrific injuries and, in some cases, deaths. He made a simple request of the Department of Health for basic information that would allow him to do some cross-checks of records in other states. If anything, he would be helping the Department track down shady practitioners who might otherwise have fallen through the regulatory cracks.

But Glenn’s simple request to authorities was met with resistance.  They couldn’t share such information with Glenn, they said, because some people in some places (not Glenn, and not in Maryland) have done harm to abortionists.  Allowing citizens to know who runs these places would, so the bureaucrats said, have a “chilling effect” on the owners of these businesses. Never mind that this regulator’s cloak of invisibility prevents women themselves from finding out into whose hands they are entrusting their health and their very lives; the “rights” of the abortion industry are paramount to the public’s right to know and to women’s health.

Thus far, two courts in Maryland have upheld the Department of Health’s blatantly undemocratic approach.  But Glenn is not about to give up yet, and neither are we. Last Thursday, we filed a Petition for Certiorari with Maryland’s highest Court, asking it to review and reverse the lower court’s decision allowing the bureaucrats to continue to play “hide the ball.” The Court of Special Appeals basically held that, to justify nondisclosure, government need only allege a “chilling effect” on a regulated business’s owners caused by allowing the public access to public information. To make matters worse, the Court (incorrectly) held that courts reviewing a regulator’s decision to hide information must defer to the bureaucrat’s judgment. In short, the bureaucrat’s decision is unbridled and, for all intents and purposes, unassailable in a court of law. 

In our Petition, among other things, we point out the paternalistic implications of that decision for the women consumers of such services – “trust us, honey, we know what’s best for you.” We also point out that the court’s reasoning would allow state bureaucrats to protect from scrutiny any number of controversial businesses and industries whose participants have been known to move from state to state, hiding their poor track records, then setting up in another state where they are free to wreak havoc – at least until they’re caught. Perhaps most important of all, though, we point out that the decision, and the practice it approves, fly in the face of the will of the people of Maryland, expressed through their elected representatives in the Maryland Public Information Act.   Their intent was that citizens be accorded wide-ranging access to public information concerning the operation of their government, not be stonewalled by bureaucracy’s superior knowledge of what’s best for the rest of us.

We are hopeful that the Maryland Court of Appeals will grant the Petition and vindicate the right of Maryland citizens to an open and democratic government.