Prosecutor's rejection of request for Tripp records upheld

From the Fall 1999 issue of The News Media & The Law, page 32.

The state’s highest court in Annapolis in late September reversed a trial court’s decision to force disclosure of an index of documents and witnesses relied upon by state prosecutors in investigating Linda Tripp for possible violations of wiretap laws.

The court’s reversal was based on procedural issues, but the court nonetheless noted that the prosecutor properly rejected an open records request made by the legal group Judicial Watch because Judicial Watch could not offer the “strong showing of a ‘particularized need’” necessary under the Maryland grand jury secrecy rule, and the state’s Public Information Act “does not trump or override the traditional rule of grand jury secrecy.”

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From her home in Maryland in 1997, Linda Tripp recorded telephone conversations with White House intern Monica Lewinsky about Lewinsky’s relationship with President Clinton. Members of the media later obtained copies or transcripts of the tapes, the contents of which then became public.

In February 1998, the state’s attorney for Howard County requested that state prosecutor Stephen Montanarelli investigate whether Tripp’s taping of Lewinsky and the subsequent dissemination of the tapes violated Maryland law. On July 7, 1998, the Office of the State Prosecutor announced that it was initiating a grand jury investigation into Tripp’s possible violations of the state Wiretap and Electronic Eavesdropping Statute, which makes it illegal to intercept, disclose, or use oral or electronic communications.

The next day, Judicial Watch, a Washington legal group, filed a request under the Maryland Public Information Act for all documents related to Tripp, Lewinsky, Starr, the White House, and literary agent Lucianne Goldberg. Montanarelli refused to disclose the requested information, stating that Judicial Watch was not a “person in interest” with a right of access under the act and that the requested records made up part of an investigatory file compiled for law enforcement or prosecution purposes, and thus were not subject to an open records request. The act defines “person in interest” as “a person or governmental unit that is the subject of a public record or a designee of the person or governmental unit.”

Judicial Watch then filed a lawsuit in state court in Towson, alleging violations of the Public Information Act. The trial court ordered Montanarelli to submit under seal to both the court and Judicial Watch an index that “word for word, paper for paper” identified the documents requested.

The prosecutor’s office immediately asked the trial court not to force it to turn over the index before it could appeal the order to an intermediate appellate court. The trial court denied the state’s request, noting that a prosecutor cannot “generalize and categorize under the bald allegation that ‘I say it should be protected.’”

The prosecutor’s office then persuaded the Court of Special Appeals in Annapolis, an intermediate appellate court, not to enforce the trial court’s order for production of the index pending appeal. Subsequently, the Court of Appeals in Annapolis — Maryland’s highest court — also agreed not to enforce the trial court’s order to produce an index and agreed to hear the case, allowing the parties to bypass the intermediate appellate court.

The prosecutor’s office asserted before the state’s highest court that even if the Public Information Act were applicable to disclosure of grand jury materials, it could not be used to compel production of an index that, “by listing each document the State prosecutor seeks to withhold, intrudes on an ongoing criminal investigation.”

Judicial Watch argued that the case was not about breaching the confidentiality of grand jury proceedings, but about how a court ever can determine whether the withholding of documents is lawful under the state open records law. Judicial Watch noted that, under prior Maryland case law, “judicial review of an agency’s attempted withholding [under the records act] is a two-part inquiry. First, the documents must be properly identified. Then, it must be shown that public release of the documents would interfere with a pending criminal investigation or produce enumerated harm.” The state prosecutor’s broad categorization of documents did not comply with that precedent, according to Judicial Watch.

The Court of Appeals unanimously overruled the trial court in an opinion drafted by Chief Justice Robert Bell and sent the case back to the Towson trial court for possible transfer to a Howard County trial court. The court’s decision was grounded in procedural and jurisdictional issues, but the court offered “guidance on remand” about the records request.

The court first analyzed the case under Maryland’s “grand jury disclosure rule,” which generally seals criminal investigation records but allows those records to be opened under certain circumstances. The court reiterated a standard requiring a party seeking information under the grand jury disclosure rule to give “a strong showing of a ‘particularized need’ before disclosure is permitted.” The court said that the strong showing should include evidence that the party needs the material to “avoid a possible injustice,” that the “need for disclosure is greater than the need for continued secrecy,” and that the “request is structured to cover only material so needed.”

The court stated that none of the showings required for disclosure of grand jury records were made, “nor, under the circumstances, could they have been” because Judicial Watch was “unrelated to any party in the criminal investigation” and had brought its action under the Public Information Act, rather than under the grand jury disclosure rule.

Nonetheless, the court addressed the information act arguments presented. It first stated that the act mandates that Maryland citizens have “access to information about the affairs of government and the official acts of public officials and employees.” One exception to the general rule, however, applies to the documents at issue in this case. That exception exempts from disclosure investigatory files for various law enforcement entities and does not require the custodian of records to “offer a justification for the decision” unless the requesting party is “a person in interest.”

The court concluded that Judicial Watch was not a “person in interest.” Further, the court stated that Judicial Watch’s efforts to obtain the prosecutor’s documents would fail under the Public Information Act even if Judicial Watch qualified for the more favorable treatment afforded a “person in interest” because the state prosecutor’s “records of investigations” fell under a criminal investigative exception. The exception allows the state’s attorney to avoid disclosure if such disclosure would “be contrary to the public interest.” The court stated that the state prosecutor’s office could take advantage of the exception because the office “stands in the shoes of the State’s Attorney at whose request it undertook the instant investigation.” (Office of the State Prosecutor v. Judicial Watch, Inc.)