New Rules Open Court Records to Public Access
~Pose confidentiality concerns for Maryland lawyers~
By Janet Stidman Eveleth

When new court rules governing the public’s access to paper and electronic court records take effect, Maryland attorneys need to be concerned about confidentiality when filing court documents. On October 1, 2004, case records will be opened to public scrutiny, so confidential information in papers filed with the court needs to be safeguarded. When attorneys file a court document, they will now have to assume responsibility for shielding the private information in their case records.

In accordance with the new rules, Maryland attorneys will now have to 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 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.

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 be advised that this new rule is applicable to old cases, too. Confidential information in past filings may be available for public viewing.

For Maryland lawyers this is the most significant of the public access rule changes. These new rules are the result of studies by two court committees and a court task force consisting of Chief Judge Robert M. Bell and Judges Alan M. Wilner and Lynne A. Battaglia. These groups considered the impact of technology on the public’s access to court documents, the increasing number of requests for electronic access to court records and the court’s current method of applying the Maryland Public Information Act in granting access.

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 is implementing 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.

“As of October 1, if an attorney feels there is anything in papers being filed with the Court that should be shielded, he or she must alert the clerk of this in writing,” stresses Wilner. “This applies to old cases, too. There may be some things that could be confidential in old cases, so attorneys must think about information placed in older files and alert the court to any of this information that needs to be shielded.”

“This will most often apply to family law practitioners and litigators,” Wilner continues. “Attorneys need to be particularly careful of medical data and financial information.”

MSBA Family Law Section Chair Barry J. Dalnekoff agrees. “Matrimonial cases, by rule and custom, include a significant amount of data and documents that counsel should seek to exclude from public disclosure,” warns Dalnekoff. “Inattention to the protection of private information may have significant consequences for attorneys and their clients.”

Maryland attorneys are concerned about these new rules and the possibility of disclosure of confidential information in new and old case records. Dalnekoff urges all attorneys, family law practitioners in particular, to “immediately become familiar with the rules, the scope of disclosable documents and the procedures for protecting private information. Although the new rules do not become effective until October 1, 2004, family law attorneys must start now to determine what should be done to protect private information for all cases.”

On a more optimistic note, Dalnekoff adds “the new rules do provide a welcome and much needed procedure for obtaining information from the Courts. As electronic documents are placed online, those papers and other data will be accessible from remote locations. That availability should result in cost-savings for litigants and increased efficiency for lawyers.”

Wilner also calls the Bar’s attention to the “important provision regarding the process to resolve disputes, which will most often go to an administrative judge, and the procedure for sealing a record not done by rule and conversely unsealing one that is – attorneys should be aware of these provisions.” He advises all attorneys to review these new rules.

These new rules are a major undertaking for the Court. The October effective date was set to allow for extensive training of clerk personnel. The full text of these new rules may be found online at www.courts.state.md.us/access/index.html.