Maryland Bar Bulletin
Publications : Bar Bulletin : August 2005

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New Rules Open Court Records to Public
~Lawyers must now shield confidential information in court documents~
By Janet Stidman Eveleth

Last October, new court rules governing the public’s access to paper and electronic court records took effect, placing the burden of protecting confidential information in court documents directly on Maryland lawyers. Effective October 1, 2004, case records were opened to public scrutiny, so confidential information in papers filed with the court must now be safeguarded. When attorneys file a court document, they are responsible for shielding all private information in their case records.

If attorneys feel there is information that needs to be shielded in any papers filed with the court, they must alert the clerk of this in writing. This applies to new and old cases. There may be some things that could be confidential in older cases, so attorneys need to think about information placed in older files and alert the court of any information that should now be shielded.

In accordance with the new rules, Maryland attorneys must now decide what information is public and what should remain private when filing a court document. The attorney must then advise the court clerk in writing about any information that should stay confidential in each and every document. Contingent on the rules, if the record is not clearly opened or closed to inspection, the final decision rests with the court, not the attorney.

For Maryland lawyers this is the most significant of the public access rule changes. The Court is admonishing attorneys not to include confidential and non-accessible information in papers filed with the clerk unless it has some special relevance and must be included. Attorneys need to further understand that confidential information in past filings may be available for public viewing, too.

Apparently, many Maryland attorneys are either unaware of these new Rules or they do not realize that the protection of their clients’ confidential information rests solely on their shoulders. The burden is on the attorney, not the Court. “Attorneys need to review these new Rules and, in this context, think about all of the information they include in a pleading,” explains the Honorable Diane O. Leasure, who co-chairs the Judiciary’s Committee on the Implementation of the Access to Court Records Rules with the Honorable Keith Mathews. “Attorneys should only include what is needed: no more, no less,” she asserts.

Leasure recommends that all attorneys review these Rules so they know what is automatically shielded and what is not, and also know the procedure to request shielding. In addition, she cautions, “Documents that are initially shielded in a court file by Rule or by statute can be opened to the public if the document is used as an exhibit in a hearing or trial.” At this point the information is available to public inspection unless the attorney requests that the document continue to be shielded or sealed. As an example, Leasure points to financial information in family law cases.

“In instances where a document is not automatically shielded or sealed, the attorney must request that the document be shielded,” she warns. “The attorney issues the request to the clerk of the court, and if there is a dispute over shielding the information, the dispute is referred to the administrative judge.”

On March 4, the Court of Appeals of Maryland adopted Title 16, Chapter 1000 of the Maryland Rules of Procedure (Rules 16-1001 through 16-1011), changing public access to both electronic and paper court records effective October 1, 2004. The Court approved these reforms to allow for greater uniformity and clearer standards when permitting or denying access of court records in all jurisdictions.

The Rules divide court records into four categories: administrative records, business license records, notice records and case records. All records are now presumed to be open to the public for inspection unless otherwise specified in the Rules. Notice records are completely open to the public, as are administrative and business records, which are generally governed by the Maryland Public Information Act.

It is the new public access rules for case records that pose confidentiality concerns for lawyers and their clients. Case records (both paper and electronic) may now be open to the public unless closed by law, court rules or judge’s order. Unless specifically ordered by a court in an individual case, once a court record is admitted into evidence or accepted as evidence in deciding a motion, it is open to the public. This means attorneys must be vigilant when filing information with the court.

The new rules require that when a case record is filed, a litigant must inform the clerk if the record or any part of it or any information in it is confidential under the rules. However, the clerk is not bound by the litigant’s determination. The clerk must keep the record open if he or she believes it is subject to inspection under the rules. The clerk will shield information he or she believes is not subject to inspection.

Under the new rules, the public’s inspection of certain case records is prohibited. Other documents are closed as provided by statute. Additionally, the rules establish a process for resolving disputes as to whether a record is subject to inspection, as well as a procedure for requests to seal or unseal information not otherwise covered.

Cases involving adoption, guardianship, juvenile delinquency, children in need of assistance, medical records, tax returns, attorney pro bono reporting forms, attorney grievance proceedings and medical records are not open to the public. Neither are such criminal actions as search warrants, arrest warrants and investigations. Court clerks are also directed to deny access for court records that contain any part of a person’s Social Security number (other than the last four digits) and the home address or telephone number of state employees.

An electronic court record is open to the public to the same extent as paper. The new rules permit, but do not require, that paper records be converted into electronic records. However, when new electronic records are created, the rules require that they be designed to facilitate access to court records that are open to inspection under the rules.

When there is a request for inspection of court record and the custodian of the record is in doubt, the court will notify the person requesting inspection as well as the person to whom the court record pertains. The clerk then applies for a judicial determination in writing, to be handled by either an administrative judge or the Chief Judge, depending on the nature of the record.

The full text of these new rules may be found online at www.courts.state.md.us/access/index.html.

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Publications : Bar Bulletin: August, 2005

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