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Confidential Lease Terms Versus Public Access to Government-Held Documents
Commercial landlords with multiple properties, or developments with more than one tenant, are generally loath to disclose to potential tenants the terms of leases into which they have previously entered. Concessions or discounts given to one party are not necessarily being offered to another, and bargaining position can be compromised when too much information is available to a lease-negotiating prospect. So, what happens when a government entity has demanded or been given a lease as part of a governmental process, such as when a landowner is seeking permission to build?
State and federal laws can sometimes protect from disclosure business-related documents filed with a government entity, but parties interested in viewing such documents also have laws on their side, like the federal Freedom of Information Act (FOIA), and comparable state legislation. These laws favor public access to documents held by government entities, in the interest of citizens' right to know what is going on in their communities.
When there is tension between the goal of governmental transparency and protection of private commercial interests, the courts may be asked to perform a balancing test to see which interest will be accommodated, or even whether each must give a little. The problem with these often competing interests was recently analyzed by Maryland's highest court, in the case of Amster v. Baker, 2017 Md. LEXIS 334 (Court of Appeals of Maryland, 5/22/17).
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