Case Number: C-15-CV-22-002523
Court: Montgomery County Circuit Court
Clients: Reporters Committee for Freedom of the Press, The Washington Post
Motion to Intervene Filed: Sept. 27, 2022
Background: In July 2022, a police officer sued Montgomery County, Maryland, to block the release of his police disciplinary records in response to a state Public Information Act request. As The Washington Post reported, it’s one of the first test cases of the Maryland Police Accountability Act of 2021, known as Anton’s Law, which generally provides that police disciplinary records are subject to disclosure under the state’s public records law.
The officer, who is identified only as “Officer John Doe” in the complaint, argues that Anton’s Law does not require, or permit, the county to disclose his own disciplinary records because they contain unsubstantiated allegations, allegations on which he was cleared of wrongdoing, and technical infractions, the release of which he alleges would be contrary to the public interest.
The officer and his police union, a co-plaintiff, sought a protective order to permit both parties to file their legal briefs and supporting records under seal. The county consented to the order, which the Montgomery County Circuit Court quickly granted. The plaintiffs have since filed their brief under seal.
On behalf of the Reporters Committee and The Washington Post, RCFP attorneys filed a motion to intervene in the case to modify the protective order to require the parties to file publicly, and to require the court to make public the previously sealed filings. Reporters Committee attorneys also asked the court to conduct any future proceedings in open court.
Reporters Committee attorneys argue, among other things, that the public has a presumptive right of access to judicial records and proceedings in this case under the First Amendment.
Quote: “[T]he Protective Order withholds essentially all information from the press and public about the facts and legal arguments driving pending litigation over the public’s right to access police disciplinary records. The parties’ filings, and the Court’s ruling on them, will determine the level of transparency required under a new disclosure statute — Anton’s Law — that was passed amid a nationwide call for increased accountability and transparency in policing following the murder of George Floyd and, in Maryland, the death of Anton Black at the hands of police.”
Related: In August 2022, The Washington Post reported that Montgomery County, Maryland, had reached an agreement with the local police union allowing law enforcement to review police disciplinary records before they are released to the public, essentially undercutting Anton’s Law.
In an interview with The Post, RCFP Senior Staff Attorney Adam Marshall expressed concerns about the agreement, noting that government agencies should avoid allowing people with a stake in records to play a role in the disclosure process, “because they’re not impartial.”
He also added that journalists and other records requesters already face a lengthy review and redaction process handled by records custodians. “Any additional mandatory review that you then impose on top of that — it’s hard for me to see how that is not going to lead to additional delays and potentially delays beyond what the [law] allows for,” he said.
Update: On Feb. 24, 2023, the Montgomery County Circuit Court issued an order granting the motion of the Reporters Committee and The Washington Post to intervene and unseal/modify the protective order. The court held that the filings at issue should be unsealed, the press and public should be permitted to attend future hearings and see future filings, and that Officer Doe should be required to proceed using his real name, as he failed to show a compelling interest in denying access. Instead of making all of the filings immediately available in their entirety, however, the court ordered the plaintiff to provide the Reporters Committee and The Washington Post, as well as other intervenors, with the sealed memorandum and exhibits as “attorney’s eyes only” and directed the parties to work together to determine whether and if so, how, the filings may be redacted. If the parties cannot agree on redactions, the court will hold a hearing on the matter. While the case is being litigated, the officer’s underlying disciplinary records will remain non-public.
2023-02-24: Memorandum opinion
2023-02-24: Amended protective order