Multiple Hagerstown City employees told us that a City representative signed a nondisclosure agreement with data center developer Diversified Capital. We filed a Maryland Public Information Act request seeking the agreement and related records. Unfortunately, the City of Hagerstown has refused to provide a single record in response to our request.
Diversified Capital is the data center developer which now owns the 171.88-acre Martin Farm property at 12440 Burkholder Lane, a site that has been marketed for a major data center project and is now seeking annexation into Hagerstown. The county’s data center moratorium does not apply inside the City - or any incorporated municipality in Washington County- and is generally viewed as a dog-and-pony-show created in an effort to give cover to the county commissioners before the November election. This makes it especially important for residents to know what conversations, commitments, and confidentiality agreements may already exist between the developer and the city of Hagerstown.
We submitted a detailed MPIA request seeking any NDA, confidentiality agreement, confidentiality provision, or similar arrangement involving the City and Diversified Capital, Diversified Capital subsidiaries, Diversified Capital Moshe Rubin, or anyone acting on their behalf. We also asked for records identifying every City employee, elected official, consultant, attorney, or representative who signed, approved, reviewed, negotiated, or was subject to one of those agreements.
The City refused to turn over the agreements. It did not identify the officials involved. It did not provide correspondence explaining the decision to enter into secrecy with a developer connected to one of the most consequential development proposals facing Hagerstown.
Instead, the City’s legal department gave us nothing but noticeably did not say an NDA with data center developer Diversified Capital does not exist.
That silence matters because we already know how this kind of secrecy works in Washington County. As we previously reported, Washington County Commissioners and senior staff signed NDAs connected to a confidential December 2025 presentation involving Diversified Capital. The public was left to learn about that agreement in one of our blog posts months later, while officials publicly discussed data centers, tax breaks, moratoriums, and development policy as though the public had been brought into the conversation.
Why Hagerstown City Attorney Jason Morton Has Decided the Public Cannot Access These Public Documents
We asked the City whether its own officials entered into similar confidentiality agreements with the developer behind a property seeking annexation into Hagerstown. Rather than answer or produce the records, the City has chosen to hide behind a refusal and provided three interesting reasons for doing so:
Any such responsive documents constitute confidential commercial information under §4-335 of the MPIA;
Any such responsive documents are being withheld on the basis that they are protected by the deliberative-process privilege and that disclosure of such records and/or information “would be contrary to the public interest.” See Glass v. Anne Arundel County, 453 Md. 201, 210 (2017) and MPIA § 4-343. One such discretionary exception applies to interagency or intra-agency letters and memorandums that “would not be available by law to a private party in litigation with the unit.” MPIA § 4-344. This privilege extends to materials that “contain pre-decisional deliberations.” See Glass at 210. This deliberative-process privilege applies to documents “reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Stromberg Metal Works, Inc. v. Univ. of Maryland, 382 Md. 151, 165 (2004); and/or
Any such responsive documents are to be withheld under confidentiality of client communications under Rule 19-301.6 of Maryland Rules of Professional Conduct.
The City’s first excuse is that every record responsive to our request supposedly constitutes “confidential commercial information.” That is not an explanation. It is a label slapped across an entire category of public records without identifying a single piece of supposedly confidential information, who provided it, or how disclosure would harm anyone commercially. We asked who in Hagerstown government signed an NDA with Diversified Capital or Moshe Rubin and for records showing what was agreed to. The City’s answer is apparently that even identifying the public official who bound the City to secrecy is a business secret. If there are genuinely proprietary details in an agreement, the city could redact those details and release the rest. Instead, Hagerstown is trying to hide the agreement, the signer, and the entire relationship behind a vague statutory phrase.
The second reason the City lists to not provide our requested documents is that they are claiming the records are protected by the deliberative-process privilege: a limited exemption meant to protect internal government discussion before officials make a decision. For example, a draft memo in which City staff debate options, give advice, or recommend a negotiating position could potentially qualify. The idea is that officials should be able to speak candidly while forming policy without every preliminary thought becoming public immediately.
But the City is claiming this privilege over every responsive record, including a possibly executed NDA, which is quite a stretch. An agreement signed between the City and a private developer is not an internal City discussion, recommendation, or draft. It is a completed document setting out obligations between the government and an outside party. The City may be able to withhold genuinely internal, pre-decisional advice in some emails or memoranda, but the language they cite does not automatically cover the NDA itself, the identity of its signer, or final communications carrying out a decision.
The third reason for denying our request is that Hagerstown is claiming the records are confidential communications between the City and its lawyer, protected by the city attorney’s duty of confidentiality. But an NDA between the City and a private developer is an agreement between two parties, not inherently a confidential attorney-client communication. The City should explain which records are legal communications with its attorney and why, rather than using the lawyer’s involvement as a blanket excuse to hide the agreement, its signer, and the City’s relationship with the developer.
Hagerstown Residents Deserve Answers About Its Dealings With Diversified Capital
Residents deserve to know whether their government has made private commitments to a developer before the public has had a meaningful chance to weigh in. They deserve to know who signed anything, who authorized it, and what information City Hall is refusing to release.
We will be taking the City’s response, and its refusal to identify who made this decision, to the Maryland Public Information Act Ombudsman.
We encourage you to also file a request demanding more information about a nondisclosure agreement between anyone within the Hagerstown government and Moshe Rubin, Diversity Capital, and / or any Diversity Capital subsidiaries. You can do that by going here or by emailing piarequest@hagerstownmd.org.
UPDATE at 6:56 AM: on December 9th - the same day in which Washington County Commissioners and other county employees met behind closed doors and under an NDA for a presentation with data center Diversified Capital - Hagerstown Mayor and City Council had an executive session “To consider a matter that concerns the proposal for a business or industrial organization to locate, expand, or remain in the State.”
Recommended Reading:
Moratorium Shmoratorium: Just 10 Days After We Accidentally Exposed a Data Center Project, the Job Listings Appear Online
Just ten days after we uncovered a planned data center project at the Martin Farm property on Burkholder Lane, data center job listings appeared online for Hagerstown. According to listings on Indeed, LinkedIn, and its own website, CBRE is hiring building and maintenance employees for a data center
"disclosure of such records and/or information “would be contrary to the public interest.”"
Yes of course, that's obvious to all residents and in particular to voters. The public has no right to know what its elected officials are doing because knowing what their government officials are doing isn't in their interest. If the public knew what these officials were doing, voters might be inclined to vote them out!
What a conflation. And confusion and who the public is.