COMAR 13B - Complete Version

(d) Dismissing the contested case.

E. Unless otherwise provided by law or by agreement of the parties, no other discovery
procedure may be noticed.

F. Copies of requested documents and records shall be made at the expense of the party making
the request.

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13B.04.01.11

.11 Intervention and Consolidation.

A. Upon motion filed not later than 10 days before the prehearing conference or 20 days before
the hearing date, a person may be permitted to intervene in an action when the person has
standing and:

(1) An unconditional right to intervene as a matter of law; or

(2) Claims an interest relating to the subject matter of the hearing that is:

(a) Adversely affected, and

(b) Not adequately represented by existing parties.

B. The motion shall state with particularity the grounds for the intervention as well as a
statement setting forth the claim or defense for which intervention is sought.

C. Restrictions on Intervention.

(1) The Secretary or the Commission, as appropriate, shall consider whether the
intervention will unduly delay or prejudice the adjudication of the rights of the original
parties.

(2) The Secretary or the Commission, as appropriate, may at any time before or during
the course of the proceedings place conditions upon an intervenor's participation in the
proceedings.

D. Appeal.

(1) The Secretary's or the Commission's denial of a motion to intervene may be appealed
in accordance with law.

(2) In the discretion of the Secretary or the Commission, as appropriate, an appeal of a
denial to intervene may stay proceedings.

E. Consolidation. When proceedings involving a common question of law or fact are pending
before the Secretary or the Commission, the Secretary or the Commission, as appropriate, may
consolidate the proceedings pursuant to a motion or the Secretary's or Commission's own
initiative. If the consolidated proceedings involve different parties or burdens of going forward
or persuasion, the Secretary or the Commission may specify those procedures that will assure an
expeditious and just proceeding.

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13B.04.01.12

.12 Prehearing Conference.

A. The Secretary or the Commission, as appropriate, may hold a prehearing conference to
resolve matters preliminary to the hearing.

B. The Secretary or the Commission, as appropriate, may require the parties to submit
information before the prehearing conference.

C. The Secretary or the Commission, as appropriate, may order that each party make available to
the other parties the names and written reports of experts and other witnesses the party expects to
call as well as copies of the documents that will be used for direct examination during the
hearing. Failure to comply in good faith with this order is grounds to refuse to admit the oral or
written testimony of that witness, to refuse to admit a report of that expert, or to refuse to admit
any document not furnished to the other parties.

D. A prehearing conference may be convened to address the following matters:

(1) Factual and legal issues;

(2) Stipulations and admissions of fact;

(3) Stipulations as to the authenticity and admissibility of documents;

(4) Requests for official notice;

(5) Identification and exchange of documentary evidence;

(6) Admissibility of evidence;

(7) Identification and qualification of witnesses;

(8) Motions;

(9) Discovery disputes;

(10) Order of presentation;

(11) Scheduling;

(12) Settlement possibilities or conferences; and

(13) Any other matter that will promote the orderly and prompt conduct of the hearing.

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E. Conduct.

(1) At the discretion of the Secretary or the Commission, as appropriate, all or part of the
prehearing conference may be recorded.

(2) The prehearing conference may be conducted by telephone, video, or other electronic
means.

F. Prehearing Orders.

(1) The Secretary or the Commission, as appropriate, may issue a prehearing order
addressing any matter raised at the prehearing conference.

(2) The prehearing order is part of the record.

(3) Whether or not a prehearing conference is held, the Secretary or the Commission, as
appropriate, may issue a prehearing order to regulate the conduct of the proceedings.

G. All parties shall be bound by the Secretary's or the Commission's prehearing order regardless
of whether a party attends a prehearing conference.

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13B.04.01.13

.13 Settlement Conferences.

A. The Secretary or the Commission, as appropriate, may appoint a designee to preside at a
conference to address settlement possibilities.

B. Settlement discussions are not a part of the case record.

C. The individual who presides at a settlement conference in which ex parte communications
take place may not preside at any hearing in that contested case and may not advise the Secretary
or the Commission regarding any decision on the merits of that case.

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13B.04.01.14

.14 Stipulations.

A. Stipulations.
(1) The parties, by stipulation, may agree to any substantive or procedural matter.
(2) A stipulation may be filed in writing or entered on the record at the hearing.
(3) The Secretary or the Commission, as appropriate, may require additional development
of stipulated matters.

B. Affidavits. The Secretary or the Commission, as appropriate, may admit an affidavit as
evidence.

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13B.04.01.15

.15 Motions; Postponement; Failure to Prosecute.

A. Process.

(1) Unless otherwise provided by these regulations, a party:

(a) May move for appropriate relief before or during a hearing; and

(b) Shall submit all motions in writing in accordance with §A(2) of this
regulation, or orally at a hearing.

(2) Written motions shall:

(a) Be filed not later than 10 days before the date of a prehearing conference or
not later than 20 days before the date of the hearing;

(b) State concisely the question to be determined;

(c) Be accompanied by all supporting documentation;

(d) Be accompanied by a memorandum of points and authorities; and

(e) Be served on each party.

(3) A response to a written motion shall be filed on the earlier of:

(a) 10 days after service of the motion; or

(b) The date of the hearing.

(4) The Secretary or the Commission, as appropriate, may schedule a hearing to consider
a written motion.

(5) Decision.

(a) The Secretary or the Commission, as appropriate, may reserve ruling on a
motion until after the hearing.

(b) The Secretary or the Commission, as appropriate, may issue a written decision
or state the decision on the record.

(c) If a ruling on a motion is reserved, the ruling shall be in writing and may be
included in the final decision.

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(6) All parties shall be bound by the Secretary's or the Commission's ruling
notwithstanding their failure to attend a hearing.

(7) Failure of a party to attend a scheduled hearing may be grounds for a decision adverse
to that party.

(8) The filing or pendency of a motion does not alter or extend any time limit otherwise
established by this chapter.

(9) A ruling on a motion shall only be reviewed as part of an appeal from a proposed
decision or final decision.

B. Motion to Dismiss. Upon motion, the Secretary or the Commission, as appropriate, may issue
a proposed decision or final decision dismissing a complaint, civil penalty, an order of the
Secretary or other agency action, or any request for hearing which fails to state a claim for which
agency relief may be granted.

C. Motion for Summary Decision.

(1) A party may move for summary decision on any substantive issue in the case.

(2) Upon written motion, a proposed decision or a final decision may dismiss a request
for hearing if the Secretary or the Commission, as appropriate, finds that there is no
genuine issue as to any material fact and that the moving party is entitled to prevail as a
matter of law.

D. Postponement.

(1) The Secretary or the Commission, as appropriate, may grant a postponement only
upon written motion and for good cause shown.

(2) The Secretary or the Commission, as appropriate, may postpone or continue a hearing
on its own initiative. Any postponement which would result in beginning the hearing
after the date required by law shall be with the consent of all parties.

E. Dismissal for Lack of Prosecution.

(1) An action is subject to dismissal for lack of prosecution at the expiration of 1 year
from the date of the request for a hearing.

(2) If an action is subject to dismissal pursuant to this regulation, the Secretary or the
Commission, as appropriate, upon its own initiative or upon the written motion of a party,
shall notify all parties that an order of dismissal for lack of prosecution may be entered
unless good cause is shown why the case should not be dismissed within 30 days after
service of the notice.

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(3) The Secretary of the Commission, as appropriate, may enter an order of dismissal
either with or without prejudice.

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13B.04.01.16

.16 Conduct of Hearings.

A. On a genuine issue in a contested case, each party is entitled to:

(1) Call witnesses;

(2) Offer evidence, including rebuttal evidence;

(3) Cross-examine opposing witnesses; and

(4) Make opening and closing statements.

B. Telephone Hearings.

(1) The Secretary or the Commission, as appropriate, may conduct all or part of the
hearing by telephone, video conferencing, or other electronic means.

(2) For good cause, a party may object to the holding of a hearing by telephone, video
conferencing, or other electronic means.

(3) All substantive and procedural rights apply to telephone, video, or other electronic
hearings, subject only to the limitations of the physical arrangement.

(4) Documentary Evidence. For a telephone hearing, documentary evidence to be offered
shall be provided by all parties so that it is received by each party and the Secretary or the
Commission, whichever is presiding at the hearing, at least 5 days before the hearing.

(5) Default. For a telephone hearing, the following may be considered a failure to appear
and grounds for a default:

(a) Failure to answer the telephone;

(b) Failure to free the telephone for a hearing; or

(c) Any other failure to be ready to proceed with the hearing as scheduled.

C. Order of Proceedings.

(1) The Secretary or the Commission, as appropriate, shall explain briefly the purpose
and nature of the hearing.

(2) The Secretary or the Commission, as appropriate, may allow the parties to present
preliminary matters.

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(3) The Secretary or the Commission, as appropriate, shall state the order of presentation
of evidence.

(4) Witnesses shall be sworn or put under affirmation to tell the truth.

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13B.04.01.17

.17 Evidence.

A. Evidence shall be admitted in accordance with this chapter and State Government Article,
§10-213, Annotated Code of Maryland.

B. Evidence may not be excluded solely on the grounds that it is hearsay.

C. Exclusion of Witnesses.

(1) Upon request by a party, the Secretary or the Commission, as appropriate, may
exclude witnesses other than parties from the hearing room.

(2) The Secretary or the Commission, as appropriate, may order the witnesses, parties,
attorneys, and all others present in the hearing room not to disclose to any witness
excluded under this section the nature, substance, or purpose of testimony, exhibits, or
other evidence introduced during the witness' absence.

(3) A party that is not an individual may designate an individual to remain in the hearing
room, even though the individual may be a witness.

(4) An expert witness who is to render an opinion based on testimony given at the hearing
may remain during the testimony.

D. Prefiled Testimony.

(1) In the discretion of the Secretary or the Commission, as appropriate, testimony may
be received in written form.

(2) The testimony shall be filed with the Secretary or the Commission, as appropriate,
and served on opposing parties so that it is received at least 5 days before the hearing.

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13B.04.01.18

.18 Expert Testimony.

Expert testimony may be accepted by the Secretary or the Commission, as appropriate, if the
testimony, as proffered, would aid in an understanding of the case.

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13B.04.01.19

.19 Appointment of Interpreter.

A. If a party or witness cannot readily hear, speak, or understand the spoken or written English
language, on motion timely submitted, the Secretary or the Commission, as appropriate, shall
appoint a qualified interpreter to provide assistance during the hearing.

B. An interpreter shall take an oath or affirmation that the interpreter will accurately translate.

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13B.04.01.20

.20 Failure to Attend Hearing and Default.

A. If, after receiving notice, a party fails to attend a prehearing conference, hearing, or other
proceeding scheduled by the Secretary or the Commission, as appropriate, the Secretary or the
Commission may issue a proposed decision or a final decision, as appropriate, against the
defaulting party.

B. Within 7 calendar days after service of a default order, the party may file a written motion
requesting that the default order be vacated or modified, and stating the grounds for the request.

C. If the Secretary or the Commission, as appropriate, finds that there is a substantial and
sufficient basis for an actual controversy on the merits and that there is good cause to excuse the
default, the Secretary or the Commission may vacate the default order.

D. A final default order is a final decision and is reviewable as such.

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13B.04.01.21

.21 Proceedings Open to the Public.

A. Unless otherwise prohibited by federal or State law, all proceedings before the Secretary or
the Commission are open to the public.

B. Unless otherwise provided by federal or State law, documents, notices, and records in the
possession of the Secretary or the Commission as a result of a contested case proceeding may be
inspected and copied as provided in State Government Article, Title 10, Subtitle 6, Part III,
Annotated Code of Maryland, and COMAR 13B.04.03.

C. The Secretary or the Commission may:

(1) Remove individuals whose conduct impedes the orderly progress of the hearing; and

(2) Restrict attendance because of the physical limitations of the hearing facility.

D. Recording equipment, cameras, and other photography equipment shall be excluded from the
hearing room unless permitted by the Secretary or the Commission, as appropriate.

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13B.04.01.22

.22 Burdens of Going Forward and Persuasion.

A. When, by specific statute or regulation, the burden of going forward or the burden of
persuasion rests upon a certain party, this regulation does not shift those burdens.

B. Except as provided in §A of this regulation:

(1) The party requesting a hearing following notice of the Secretary's or Commission's
intent to deny or refuse to renew a permit, certification, or license bears the burden of
going forward to establish a prima facie case of entitlement to the permit, certification, or
license, and the burden of persuasion that the permit, certification, or license should be
issued;

(2) In a proceeding following notice by the Secretary or the Commission of an intent to
revoke or suspend a permit, certification, or license, the Secretary or the Commission, as
appropriate, bears the burden of going forward to establish a prima facie case as to the
existence of grounds for revocation or suspension, and the burden of persuasion that the
permit, certification, or license should be revoked or suspended; and

(3) In a proceeding to issue an order or levy sanctions, the Secretary or the Commission,
as appropriate, bears the burden of going forward to establish a prima facie case as to
existence of grounds for issuance of an order or sanctions, and the burden of persuasion
that the order be issued or sanctions be levied.

C. The Secretary or the Commission, as appropriate, shall find against a party with the burden of:

(1) Going forward if that party has not presented sufficient evidence to establish a prima
facie case for the party's claim or defense; or

(2) Persuasion if that party has not presented evidence sufficient to establish the
correctness of the party's claim or defense by a preponderance of the evidence.

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13B.04.01.23

.23 The Record.

A. The Secretary or the Commission, as appropriate, shall prepare an official record of each
hearing.
B. The record shall consist of:

(1) Any document giving rise to the proceeding;
(2) Any request for the hearing;
(3) Notices of all proceedings;
(4) Any prehearing order;
(5) Motions, pleadings, briefs, petitions, requests, and intermediate rulings;
(6) Evidence received or considered;
(7) A statement of each fact officially noticed;
(8) Proffers of proof, objections, and rulings on them;
(9) Proposed and final findings of fact, conclusions of law, and requested orders;
(10) Matters placed on the record after an ex parte communication;
(11) A recording of the hearing, any transcript of the recording, or any transcript prepared
by a court reporting service; and
(12) Any order.

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13B.04.01.24

.24 Service.

A. Unless otherwise required by law, service of the following documents shall be made by
personal delivery or by mail:

(1) Notices of the hearing;
(2) Default orders;
(3) Prehearing orders;
(4) Final decisions; and
(5) Exceptions to proposed decisions and appeals of final decisions.
B. Service upon a party to whom a permit, certification, or license has been issued by the
Commission or Secretary may be made by delivering a copy to the most recent address provided
by that party to the Commission or Secretary.
C. Proof of Service. The person serving a document shall certify:
(1) To whom the document was sent or delivered;
(2) The address to which the copy was sent or delivered;
(3) The date the copy was sent or delivered;
(4) The manner of service; and
(5) The name of the person who sent or delivered the document.

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13B.04.01.25

.25 Delegation of Hearing Authority.

A. The Secretary or the Commission, as appropriate, may delegate all or part of the authority to
hear a contested case to the Office of Administrative Hearings.

B. Authority to Revoke Delegation. The Secretary or the Commission, as appropriate, may
revoke all or part of a delegation of authority to hear a contested case.

C. Criteria for Revocation. The Secretary or the Commission, as appropriate, may revoke all or
part of a delegation to the Office of Administrative Hearings if the case may:

(1) Involve novel or unanticipated factual or legal issues;

(2) Have significant social or fiscal consequences;

(3) Involve policy issues of general applicability; or

(4) Be likely to have precedential value.

D. Procedures for Revocation.

(1) The Secretary or the Commission, as appropriate, shall provide written notice of a
revocation of hearing authority to all parties and the Office of Administrative Hearings.
The written notice shall contain a brief statement of the reason for the revocation.

(2) Delegation of authority to hear a contested case may be revoked at any time before
the earlier of the:

(a) Issuance of a ruling by the administrative law judge on a substantive issue; or

(b) Taking of oral testimony from the first witness.

(3) The Secretary or the Commission, as appropriate, shall specify whether all or part of
the delegation to hear a contested case has been revoked. If only part of the delegation
has been revoked, the Secretary or the Commission shall specify in the written notice of
revocation the portions of the contested case for which delegation has been revoked.

(4) A decision issued by the Secretary or the Commission, as appropriate, shall reflect the
fact that delegation to the Office of Administrative Hearings was revoked and a copy of
the revocation notice shall be included as part of the record.

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E. Procedures upon Revocation.

(1) If the Secretary or the Commission revokes the delegation to hear a contested case,
the hearing shall be conducted by the Secretary or the Commission, as appropriate.

(2) As soon as practicable after the conclusion of the hearing and, if required, the filing of
post-hearing submissions, the Secretary or the Commission, as appropriate, shall issue a
written decision.

(3) The decision shall:

(a) Contain findings of fact, conclusions of law, and the decision or remedy;

(b) Include a short and plain statement of the right to appeal and the available
procedures and time limitations for seeking judicial review; and

(c) Be mailed to all parties.

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13B.04.01.26

.26 Ex Parte Communications.

A. A party or a party's representative may not communicate ex parte with the Secretary or
members of the Commission, whichever is presiding at the hearing, regarding the merits of any
issue in the hearing.

B. The Secretary or the members of the Commission may communicate with members of an
advisory staff or the Commission, or with any counsel for the Secretary or the Commission who
otherwise does not participate in the contested case.

C. Actions taken by the Secretary or the Commission, as appropriate, following an ex parte
communication shall be governed by State Government Article, Title 10, Subtitle 2, Annotated
Code of Maryland.

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13B.04.01.27

.27 Transcripts, Costs.

A. The hearing shall be recorded by tape recording, stenographic notes, or other means, and shall
be transcribed as soon as possible after the hearing.

B. A party other than the Secretary or the Commission taking exceptions or appealing a proposed
decision shall request a transcript if one has not been prepared.

C. Transcript. If a party requests a transcript of the hearing, the requesting party shall bear the
cost of transcription.

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13B.04.01.28

.28 Proposed Decision and Exceptions.

A. Proposed Decision. A proposed decision shall contain:

(1) Findings of fact and conclusions of law, separately stated;

(2) A proposed order; and

(3) A statement of the right to file written exceptions to the proposed decision in
accordance with this regulation.

B. Except in the case of an expedited hearing, a proposed decision shall be submitted to the
parties within 90 days from the date of the hearing or the filing of post-hearing submissions,
whichever is later.

C. Exceptions to Proposed Decision.

(1) Timing. Within 20 days from the date of receipt of a proposed decision, each party
may file written exceptions to the proposed decision with the Secretary or the
Commission, as appropriate. A response to exceptions may be filed within 10 days of a
party's receipt of the exceptions. These time limitations may not be extended except with
the approval of the Secretary or the Commission, whichever is presiding at the exceptions
hearing.

(2) Content. The exceptions shall contain the legal and factual bases for a party's appeal.
A memorandum in support of the exceptions may also be prepared and shall be filed with
the Secretary or the Commission, as appropriate, within 20 days from the receipt of the
proposed decision. A response to exceptions may also be accompanied by a
memorandum. The exceptions, responses to the exceptions, and accompanying
memoranda shall contain copies of the portions of the record referred to.

(3) Scheduling of Oral Argument.

(a) Upon receipt of the exceptions, the Secretary or the Commission, as
appropriate, shall set aside time for the presentation of oral argument. Unless a
later date is agreed to by the parties, oral argument on the exceptions may not be
heard later than 60 days following the Secretary's or the Commission's receipt of
the exceptions. The Secretary or the Commission, as appropriate, shall notify all
parties of the date, time, and place of oral argument.

(b) The Secretary or the Commission, whichever is presiding at the exceptions
hearing, may limit the time given to each party for oral argument.

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(c) A majority of the Commission members shall be present at all times during
oral argument before the Commission.

(4) Record.

(a) Before oral argument, the entire record shall be transmitted to the Secretary or
the Commission, whichever is presiding at the exceptions hearing.

(b) Copies of the exceptions, responses to the exceptions, accompanying
memoranda, and portions of the record attached to them shall be provided to the
Secretary or to each Commission member, as appropriate, at least 7 days before
oral argument.

(c) The consideration of information which is not part of the record shall be in
accordance with Maryland law.

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13B.04.01.29

.29 Final Decision.

A. After hearing oral argument and considering the record, the Secretary or the Commission by
majority vote of those present, as appropriate, shall:

(1) Adopt the proposed decision as the final decision of the agency;

(2) Modify the proposed findings of fact, proposed conclusions of law, or proposed order,
in whole or in part, and then adopt the modified proposed decision as the final decision of
the agency;

(3) Reverse the proposed decision and issue its own findings of fact, conclusions of law,
or order; or

(4) Remand the matter for further proceedings.

B. If exceptions have not been filed and, after reviewing a proposed decision, the Secretary or
the Commission, as appropriate, concludes that the Secretary or the Commission is unable to
approve the decision as written, the Secretary or the Commission, as appropriate, may:

(1) Notify all parties and invite arguments from the affected parties on the issues the
Secretary or the Commission is reconsidering; and

(2) Hold a hearing within 90 days of issuance of the notice.

C. If no exceptions are filed or no hearing is held, the Secretary or the Commission, as
appropriate, may adopt the proposed decision without change as the final decision of the agency.

D. The decision of the Secretary or the Commission, as appropriate, is the final decision of the
agency for purposes of judicial review and, unless the matter is remanded for further
proceedings, the date of the written decision shall be the date of the final decision of the agency.

E. A final decision shall:

(1) Be in writing and served on all parties; and

(2) Contain:

(a) Findings of fact and conclusions of law, separately stated;

(b) An order; and

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(c) A statement of the available procedures and time limitations for judicial
review.

F. In the event of fraud, mistake, or irregularity, a final decision may be corrected at any time.

G. The Secretary or the Commission, as appropriate, may not entertain motions for
reconsideration or applications for stay pending judicial appeal.

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13B.04.01.30

.30 Judicial Review.

A party who is aggrieved by a final decision is entitled to judicial review in accordance with
Education Article, Title 11, Subtitle 2, and State Government Article, Title 10, Subtitle 2,
Annotated Code of Maryland. The Secretary or the Commission, as appropriate, shall be a party
to the proceeding. The final decision shall be presumed correct and the aggrieved party shall
have the burden of proving otherwise.

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Title 13B MARYLAND HIGHER EDUCATION COMMISSION

Subtitle 04 RULES OF PROCEDURE

Chapter 02
Open Sessions

Authority: Education Article, §11-105; State Government Article, §10-507;
Annotated Code of Maryland

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13B.04.02.01

.01 Definitions.

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

B. Terms Defined.

(1) "Commission" includes the Maryland Higher Education Commission, its advisory
councils, its committees, and any other public bodies under the authority and acting on
behalf of the Maryland Higher Education Commission.

(2) "Open session" means a meeting of the Commission that is required to be open to the
public pursuant to the Open Meetings Act, State Government Article, Title 10, Subtitle 5,
Annotated Code of Maryland.

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13B.04.02.02

.02 Public Attendance.

A. The general public is invited to attend and observe any open sessions of the Commission.

B. A member of the public attending an open session may not participate in the session except
when the presiding officer expressly invites public testimony, questions, comments, or other
forms of public participation.

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13B.04.02.03

.03 Disruptive Conduct.

A. An individual attending an open session may not engage in any conduct, including but not
limited to visual demonstrations such as the display of placards, signs, or banners, that disrupts
the session or interferes with the right of members of the public to attend and observe the
session.

B. Authority of the Presiding Officer.

(1) The presiding officer may order an individual who violates § A of this regulation, or
who violates any other regulation or resolution concerning the conduct of the open
session, to be removed from the session, and may request police assistance to restore
order.

(2) The presiding officer may recess the session while order is restored.

C. An individual who is asked to leave the session in accordance with these regulations and who
refuses to do so may be subject to arrest as provided by law.

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13B.04.02.04

.04 Recording, Photographing, and Broadcasting of Open Sessions.

A. A member of the public, including a representative of the news media, may:

(1) Record the discussions at an open session using a tape recorder or other recording
device if the device used does not create excessive noise that disturbs the open session or
other individuals attending the session;

(2) Photograph or videotape the proceedings of an open session using any type of camera
if the camera is operated without excessively bright artificial light or excessive noise that
disturbs the open session or other individuals attending the session.

B. A representative of the news media may broadcast or televise the open session if the
equipment used is operated without excessively bright artificial light or excessive noise that
disturbs the open session or other individuals attending the session.

C. The presiding officer may restrict the movement of an individual who is using a recording
device, camera, or broadcasting or televising equipment if the restriction is necessary to maintain
the orderly conduct of the open session.

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13B.04.02.05

.05 Recordings Not Part of Record.

A recording of an open session made by a member of the public, including a representative of the
news media, or any transcript derived from a recording, is not a part of the record of the open
session.

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Title 13B MARYLAND HIGHER EDUCATION COMMISSION

Subtitle 04 RULES OF PROCEDURE

Chapter 03
Access to Public Records

Authority: Education Article, § 11-105(s); State Government Article, § 10-613(b);
Annotated Code of Maryland

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3B.04.03.01

.01 Purpose.

These regulations set forth procedures for the disclosure, inspection, or copying of records
maintained by the Maryland Higher Education Commission. It is the policy of the Maryland
Higher Education Commission to facilitate public access to the Commission's records when
access is allowed by law.

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13B.04.03.02

.02 Definitions.

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

B. Terms Defined.

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

(2) "Commission" means the Maryland Higher Education Commission, its advisory
councils, its committees, any other public bodies under the authority and acting on behalf
of the Maryland Higher Education Commission, the Maryland State Scholarship
Administration, and any employees, agents, or contractors acting on behalf of the
Commission.

(3) "Custodian" means the head of a Commission organizational unit or authorized
Commission employee having personal custody and control of the public record that is
the subject of a request under the Act.

(4) "Official custodian" means the person who is responsible for the maintenance, care,
and keeping of the public records of the Commission. Unless otherwise provided by law,
the Secretary is the official custodian of all public records of the Commission.

(5) "Person in interest" means a person or governmental unit that is the subject of a public
record, or an authorized designee of the person or governmental unit, or, if the person has
a legal disability, a parent or legal representative of the person.

(6) Public Record.

(a) "Public record" means the original or any copy of any documentary material,
regardless of physical form or characteristics, made or received by the
Commission in connection with the transaction of public business.

(b) "Public record" includes a document that contains the salary of an official or
employee of the Commission.

(7) "Requester" means a person or governmental unit requesting access to public records
under the Act.

(8) "Secretary" means the Secretary of Higher Education.

(9) Sociological Information.

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(a) "Sociological information" means any of the following information requested
from the Commission:

(i) Scholarship and financial aid records of individual students or their
families, except as provided by Regulation .09 of this chapter;

(ii) Records about the biography, family, race, ethnic background,
physiology, religion, academic achievement, or physical or mental ability
of a student;

(iii) Social security numbers;

(iv) Personal addresses;

(v) Personal phone numbers; and

(vi) Information regarding marital status, dependents, or relatives.

(b) "Sociological information" includes the part of a public record that contains
information about the licensing of an individual in an occupation or profession,
except that the custodian shall permit inspection of the part of a public record that
gives:

(i) The name of the licensee;

(ii) The business address of the licensee or, if the business address is not
available, the home address;

(iii) The business telephone number of the licensee;

(iv) The educational and occupational background of the licensee;

(v) The professional qualifications of the licensee;

(vi) Orders and findings that result from formal deficiency actions; and

(vii) Evidence that has been provided to the custodian to meet the
requirements of a statute as to financial responsibility.

(10) "Working day" means a day other than Saturday, Sunday, or a State holiday.

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13B.04.03.03

.03 Requests to Inspect or Copy Records.

A. A person or governmental unit may request access to inspect or copy public records of the
Commission.

B. A requester shall direct the request to the custodian. If the custodian is not known, the
requester may direct the request to the official custodian.

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13B.04.03.04

.04 Necessity for Written Request.

A. The custodian may make public records available for inspection or copying, or both, to a
requester without a written request.
B. Written requests are required when the custodian reasonably believes that:

(1) A written application will facilitate the Commission in responding to the request; or
(2) The Act or any other law may prohibit disclosure of the public record or parts of it.
C. The custodian may require a written request when the requester is requesting copies of a
public record.

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13B.04.03.05

.05 Contents of Written Request.

A written request shall:
A. Contain the requester's name and address;
B. Reasonably identify the public record sought; and
C. Be signed by the requester.

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13B.04.03.06

.06 Response to Written Request.

A. If a requested public record is not in the custody or control of the person to whom the written
request is made, that person shall, within 10 working days of the receipt of the request:

(1) Notify the requester of that fact;

(2) Relate to the requester the identity or location, or possible location, of the custodian,
if known; and

(3) Forward the request to the custodian, if known.

B. If the custodian decides to grant a written request, the custodian shall produce the record for
inspection immediately or within a reasonable period of time that is needed to retrieve and
prepare the public records, but not to exceed 30 days from the date the custodian receives the
written request.

C. If the custodian decides to deny a written request, the custodian shall do so within 30 days
from the date the custodian receives the written request. Upon deciding to deny the request, the
custodian shall immediately notify the requester of the denial. Within 10 working days of the
denial, the custodian shall transmit to the requester a written statement that sets forth the reasons
and legal authority for the denial and that contains a notice of the remedies for review of the
denial. The custodian shall permit inspection of any part of the public record that is subject to
inspection and is reasonably severable.

D. With the consent of the requester, a time limit imposed by § A-----C of this regulation may be
extended for an additional period not to exceed 30 days.

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13B.04.03.07

.07 Notification of Persons in Interest.

A. The custodian, unless prohibited by law, may notify a person in interest who is the subject of
a public record that a request for inspection or copying of that record has been received.

B. In determining whether to notify the person in interest of the pending request, the custodian
shall take into account a request from the person in interest, submitted simultaneously with
information submitted to the Commission, that the information not be disclosed without
consultation between the custodian and the person in interest.

C. The custodian may consider the views of the person in interest before deciding whether to
disclose the record.

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13B.04.03.08

.08 Disclosure of Student Educational Records.

A. The Commission shall regularly collect, in accordance with its mandated responsibilities,
information on students enrolled in secondary and postsecondary institutions within the State.
This information shall be collected on an aggregated or summary basis, but the Commission may
collect data on an individual basis for the purpose of evaluating and improving the instruction
provided by the educational system of the State.

B. Individual Student Records.

(1) The Commission shall recognize that the education records of State secondary and
postsecondary institutions are protected under the Family Educational Rights and Privacy
Act, 20 U.S.C. § 1232g. Accordingly, when obtaining student records, the Commission
shall abide by that statute and 34 CFR 99 (1990), which is incorporated by reference.

(2) The Commission shall respond to all written requests to inspect, review, or correct
individual student records in accordance with this chapter.

(3) If the Commission or the Secretary determines that disclosure of student record
information is necessary in order to conduct research designed to improve instruction, the
disclosure shall be made in compliance with 34 CFR 99 (1990), which is incorporated by
reference.

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13B.04.03.09

.09 Disclosure of Scholarship and Financial Aid Information.

A. The Commission shall provide upon request a list of scholarship recipients for all programs
that it administers that are not required by law to be based wholly or in part on financial need.

B. The lists of scholarship recipients shall be by program, and shall contain names and city,
county, or legislative district, as appropriate. Otherwise, all personally identifiable scholarship
and financial aid information held by the Commission is considered sociological information,
subject to Regulation .10 of this chapter.

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13B.04.03.10

.10 Sociological Information.

A. Except as provided in Regulations .08 and .09 of this chapter and §B of this regulation, the
custodian may not disclose sociological information to a requester.

B. The custodian may disclose sociological information under the following circumstances:

(1) To the person in interest;

(2) Pursuant to an issued subpoena;

(3) Disclosure which is otherwise required by law; or

(4) The Secretary or Commission determines that disclosure is in the public's best
interest.

C. For individual student education records, a disclosure made pursuant to §B(4) of this
regulation shall be made in conformity with 34 CFR 99 (1990), which is incorporated by
reference.

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13B.04.03.11

.11 Records Destroyed or Lost.

If a requested record has been destroyed or lost, the custodian to whom the request is made shall
notify the requester of this fact as soon as possible and within 30 days of receipt of the request.
The custodian shall explain in the response the reasons why the record cannot be produced.

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13B.04.03.12

.12 Records Temporarily Unavailable.

If a requested record is temporarily unavailable, the custodian shall notify the requester of this
fact as soon as possible and within 30 days of receipt of the request, and shall explain in the
response the reason why the record is temporarily unavailable and relate the date on which the
record is expected to become available.

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13B.04.03.14

.14 Disclosure Against Public Interest.

If, in the opinion of the Secretary, disclosure of a public record which is otherwise required to be
disclosed under the Act would do substantial injury to the public interest, the Secretary may
temporarily deny the request in writing, and shall apply within 10 working days of the denial to
the appropriate circuit court for an order permitting the Secretary to continue to deny or restrict
the disclosure. Notice of the application filed with the circuit court shall be served upon the
requester in accordance with the Maryland Rules of Procedure.

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13B.04.03.15

.15 Fees.

A. Fee Schedule.

(1) The Commission may charge reasonable fees in accordance with the fee schedule in
§A(2)—(4) of this regulation.

(2) Copies. The fee for each copy is 25 cents per page when reproduction can be made by
a photocopying machine within the Commission. When records are not reasonably
amenable to photocopying within the Commission, the fee for reproducing the record is
based on the actual cost of reproduction.

(3) Certification of Copies. When a person requests that a copy of a record be certified as
a true copy of the original public record, the Commission shall charge an additional cost
of $1 per page.

(4) Searching or Record Preparation. There is no charge for the first 2 hours needed to
search for a public record and prepare it for inspection. The Commission may charge $20
per hour for additional time required to search for or prepare public records for inspection
or copying.

B. Notwithstanding § A of this regulation, if the fees for copies, printouts, photographs, or
certified copies of a record are specifically required by a law other than the Act or this
regulation, the specific fee contained in that law determines the amount charged for that record.

C. If the custodian is unable to copy a record within the Commission, the custodian shall make
arrangements for the prompt reproduction of the record at public or private facilities outside the
Commission. The custodian shall either:

(1) Collect from the requester a fee that is sufficient to pay the actual cost of
reproduction; or

(2) Direct the requester to pay the cost of reproduction directly to the facility making the
copy.

D. Before copying a record, the custodian shall estimate the cost of copying and obtain the
agreement of the requester that the cost shall be paid. The custodian may demand prepayment of
any estimated fee before copying the record. If prepayment is required, the time limitations
contained elsewhere in these regulations do not begin until the payment is made.

E. Upon written request, the official custodian may waive or reduce a fee charged pursuant to
this regulation if the custodian determines that the waiver or reduction is in the public interest.

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