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Maryland

Open Courts Compendium

Author

Elizabeth C. Koch
Maxwell S. Mishkin
Ballard Spahr LLP
1909 K Street NW, 12th Floor
Washington, DC 20006
(202) 661-2200
Web: www.ballardspahr.com

Last updated January 2018

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

The Maryland Court of Appeals—the state’s highest court—has recognized the public’s right of access to criminal trials and criminal pretrial proceedings predicated on the First Amendment and on the state constitutional analogue, Article 40 of the Maryland Declaration of Rights. Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 431 (Md. 1983); see Patuxent Publ’g Corp. v. State, 429 A.2d 554 (Md. Ct. Spec. App. 1981) (First Amendment right applies to pretrial “gag order” hearing); see also Hearst Corp. v. State, 484 A.2d 292, 295 (Md. Ct. Spec. App. 1984) (right to intervene to oppose closing of court file in criminal case was grounded in the First Amendment); see also Longus v. State, 7 A.3d 64, 72 (Md. 2010) (“The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed.” (citation omitted)). The First Amendment and state analog are coextensive. Sigma Delta Chi v. Md. House of Delegates, 310 A.2d 156, 158 (Md. 1973).

The Court of Appeals has never considered the question of whether the First Amendment right applies outside the context of criminal court proceedings. Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1133–35 (Md. 2000) (declining to reach the constitutional question and instead finding that a right of access to civil proceedings and records existed under the common law). The Court of Special Appeals has held, however, that the First Amendment right of access extends both to civil trials and to court records. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988) (right of access to civil trials is “predicated on the First and Fourteenth Amendments of the Constitution of the United States and Article 40 of the Maryland Declaration of Rights”); Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (First Amendment right of access applies to redacted presentence report that had been entered into evidence in criminal trial, but First Amendment right might be overcome by compelling state interest in maintaining confidentiality of such reports); Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991) (“The right of access guaranteed by the First Amendment and Article 40 of the Maryland Declaration of Rights applies to pretrial proceedings, trial proceedings, and court records.” (citations omitted)). But see Group W Television Inc. v. State, 626 A.2d 1032, 1034 (Md. Ct. Spec. App. 1993) (no First Amendment right of the press to copy trial evidence).

The public also has a common law right of access applicable to court proceedings and records. In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Court of Appeals canvassed the history of public access to both civil and criminal trials dating back to pre-colonial times, and concluded that “‘historically both criminal and civil trials have been presumptively open’ to the public.” Id. at 1134 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566–67 (1980)). The court in Mayor & City Council of Baltimore recognized that the “common law principle of openness is not limited to the trial itself but applies generally to court proceedings and documents.” Id. at 1134. Finding that “the right to the benefits of the common law of England, are presently embodied in Article 5 of the Maryland Declaration of Rights,” the court held that the “common law rule that court proceedings, records, and documents are open to the public is fully applicable in Maryland except to the extent that the principle has been modified by legislative enactments or decisions by this Court.” Id. at 1135.

The common law right, however, is subject to modification by statute, and the “Maryland General Assembly has created exemptions to the common law principle of openness” in a number of areas, particularly where privacy interests are at stake. Id.; Immanuel v. Comptroller of Treasury, 126 A.3d 196, 205 (Md. Ct. Spec. App. 2015) (“[C]ourt proceedings are presumed open unless a statute, rule, or appellate court decision provides otherwise.”). Most notably, in 2004, the Maryland legislature codified the common law right of access. See Md. Rules 16-901, et seq. As with the common law, the Rules begin with the presumption that “[j]udicial records are presumed to be open to the public for inspection.” Md. Rule 16-903(b); cf. State v. WBAL-TV, 975 A.2d 909, 921 (Md. Ct. Spec. App. 2009) (Maryland Rules “clearly reflect the common law presumption of the openness of court records that, as a general rule, can only be overcome by a ‘special and compelling reason.’” (quoting prior version of current Rule 16-912(d)(5)(A))).

Access to “Judicial Records”

In March 2004, Maryland adopted a comprehensive statutory scheme governing access to “Judicial Records.” See Md. Rules 16-901, et seq. The Maryland Rules explicitly state that “[j]udicial records are presumed to be open to the public for inspection.” Md. Rule 16-903(b). Accordingly, except as otherwise provided within the Rules themselves, “the custodian of a judicial record shall permit an individual appearing in person in the office of the custodian during normal business hours to inspect the record.” Id. Moreover, the right to “inspect” the record explicitly includes the right to copy it. Md. Rule 16-904(a) (“Except as otherwise expressly provided by law, a person entitled to inspect a judicial record is entitled to have a copy or printout of the record.”).

Under the Rules, the term “Judicial Records” is a catchall that encompasses five types of records:  Administrative Records, Business License Records, Case Records, Notice Records, and Special Judicial Unit Records. See Md. Rule 16-902(h) (Definitions). Because the standards governing access to Judicial Records varies depending on which type of record is at issue, it is necessary to determine which sub-category of documents you seek in order to assess its availability or the best procedure for obtaining it.

  • Notice Records: These are records that are “filed with the clerk of a court pursuant to statute for the principal purpose of giving public notice of the record.” Md. Rule 16-902(i). They include, for example, deeds, mortgages and other land records, and liens. Because “the court’s only function with respect to those records is to preserve them and make and keep them available for public inspection, there is no justification for shielding them, or any part of them, from public inspection.” Id. (Committee Note). Accordingly, the Rules state that “[e]xcept as otherwise provided by statute, a custodian may not deny inspection of a notice record that has been recorded and indexed by the clerk.” Md. Rule 16-905(a).
  • Case Records: These include “all or any portion of a court paper, document, exhibit, order, notice, docket entry, or other record, whether in paper, electronic, or other form, that is made, entered, filed, or maintained by the clerk of a court in connection with an action or proceeding” as well as any other “miscellaneous record filed with the clerk of the court pursuant to law that is not a notice record.” Md. Rule 16-902(c)(1)(A) & (C). Nearly all documents related to a specific case before a given court, or other items that are filed with the clerk as a matter of course, are considered Case Records. This category also includes records pertaining to marriage licenses “issued and maintained by the court” and, “after the license is issued, the application for the license.” Md. Rule 16-902(c)(1)(B).

    While the presumption of openness applies to Case Records, the Rules limit or forbid inspection of certain Case Records. Md. Rule 16-907. Notable Case Records that “the custodian shall deny inspection of” include:  (1) certain types of cases involving children and family related actions (e.g., adoption, guardianship, and delinquency proceedings); see also Sumpter v. Sumpter, 50 A.3d 1098, 1107 (Md. 2012) (noting in dicta that a child custody investigatory report may be sealed if it contained reports of abuse or psychological findings); (2) warrants, applications, and supporting affidavits prior to execution; (3) presentence investigatory reports not filed with the court; (4) transcripts or recordings of court proceedings that were closed to the public; and (5) records ordered sealed by the court. Rule 16-907 also requires a denial of access to a variety of other filings. For an exhaustive listing, refer to the Rule.
    In order to overcome the presumption of openness with respect to Case Records, the party seeking closure must show that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A). Moreover, any order limiting access to Case Records—which can only be made after notice is given and an opportunity provided for interested parties to oppose closure—must be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order.” Md. Rule 16-912(d)(1) & (3).

  • Administrative Records: Administrative Records are records that concern the internal operations of the court itself. Md. Rule 16-902(a). Examples include orders or directives that govern “the operation of a court,” reports prepared by or for the court system, and the courts’ internal plans for handling jury selection, case management, electronic filing, and other administrative issues. Id. As the Committee Note following Rule 16-902 explains, because “the kinds of internal administrative records maintained by a court or other judicial agency, mostly involving personnel, budgetary, and operational management, are similar in nature and purpose to those kinds of administrative records maintained by Executive Branch agencies and that records pertaining to business licenses issued by a court clerk are similar in nature to records kept by Executive Branch agencies that issue licenses of one kind or another,” the Rules treat these Administrative Records “more or less the same as comparable Executive Branch records.” Accordingly, the Rules generally apply the Maryland Public Information Act (“PIA”), Maryland Code Annotated, General Provisions, § 4-101, et seq. (governing access to public records) to Administrative Records. Md. Rule 16-905(c).

    Unless otherwise permitted by the PIA or the Rules themselves, the clerk or custodian is directed to deny applications for access to personnel and retirement records of court personnel as well as “judicial work product” (i.e., notes or drafts or other work product prepared by a judge or his or her staff). Md. Rule 16-905(e)-(f). The clerk is also required to deny inspection of documents that are either preliminary drafts or “purely administrative in nature” that are “not filed with the clerk and not required to be filed with the clerk.” Md. Rule 16-905(f)(3)(B)-(C). Finally, the Rules prohibit access to “an administrative record used by the jury commissioner,” but authorize disclosure, upon request, of “the names and zip codes of the sworn jurors contained on a jury list after the jury has been impaneled and sworn, unless otherwise ordered by the trial judge.” Md. Rule 16-905(c)(1)(A)-(B).

  • Business License Record: This category includes any business license issued by the clerk of court, as well as any application for such a license or other judicial record “pertaining to” such an application. See Md. Rule 16-902(b). As with Administrative Records, the Rules treat Business License Records the same as similar records maintained by an Executive Branch agency and apply the standards set forth in the PIA. See Md. Rule 16-905(c)(1).

Records maintained in digital format are “open to inspection to the same extent that the record would be open to inspection” if in paper format. Md. Rule 16-910(a). Clerks of court are required to provide computers in the courthouses that the public can use free of charge. Md. Rule 16-910(c). To the extent digital access is not yet available to the records sought, a requester can submit a request to the State Court Administrator for digital access and offer a “proposed method of achieving that access.” Md. Rule 16-909(f)(1). Such digital access should generally be approved so long as it “will not directly or indirectly impose significant fiscal or operational burdens on any court or judicial agency.” Md. Rule 16-909(f)(2)(A).

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B. Overcoming a presumption of openness

In the context of criminal proceedings, courts have consistently required that parties seeking closure demonstrate that the public’s right to access is overridden by a compelling state interest that cannot be protected by alternative means. E.g., Baltimore Sun Co. v. Colbert, 593 A.2d 224, 230 (Md. 1991) (the “presumption that pretrial proceedings are open to the public can be overcome only by an ‘overriding interest,’ such as an accused’s right to a fair trial”); id. (to overcome presumption, “trial court must find specifically that no reasonable alternative short of closure of the courtroom will protect the defendant’s right to a fair trial”); Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 427 (Md. 1983) (“the public’s qualified right of access to criminal trials extends to pretrial judicial proceedings in criminal cases”); id. (criminal defendant’s right to impartial jury did not outweigh public’s right to attend pretrial suppression hearing); Patuxent Publ’g Corp. v. State, 429 A.2d 554, 556 (Md. Ct. Spec. App. 1981) (defendant’s right to impartial jury did not outweigh public’s First Amendment right of access to pretrial “gag order” hearing where there were other “lesser and alternative” means for protecting defendant’s Sixth Amendment rights); Erman v. State, 434 A.2d 1030, 1046–47 (Md. Ct. Spec. App. 1981) (affirming denial of defendant’s request for private trial where trial court had “applied a lesser alternative by engaging in sanitizing voir dire examination in which prospective jurors indicated they could ignore media accounts during the trial” and had warned jurors against reading or watching any news reports concerning the trial); see also Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (requiring trial court to weigh state’s compelling interests in preserving confidentiality of presentence reports against First Amendment presumption of access, and to consider alternatives to broad sealing of report, including further redaction of already redacted report); Hearst Corp. v. State, 484 A.2d 292, 295 (Md. Ct. Spec. App. 1984) (in context of newspaper’s request for access to court file containing names and addresses of jurors in criminal trial, “in order for the trial court to deny the news media access to a criminal trial or criminal case file, the denial must be no broader than necessary to meet a clearly articulated compelling State interest”).

Where a criminal defendant’s argument in support of closure rests on the contention that media access will bias potential jurors and infringe upon the defendant’s Sixth Amendment rights, the Court of Appeals, following the Supreme Court’s directive in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), has required that the defendant show both that it is “substantially probable” that prejudice would result from an open proceeding and that there are no less restrictive alternatives. Colbert, 593 A.2d at 230; Buzbee, 465 A.2d at 434 (“Prejudice in the context of [the defendant’s motion to exclude the public from a pretrial suppression hearing] means the reasonable probability that an impartial jury could not be impaneled.”).

The same substantial probability of harm to a compelling interest test applies in civil proceedings. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991) (“‘[I]t must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.’” (citation omitted)); State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (1988) (same). As the Court of Special Appeals made clear in Doe, an action brought by a patient against a hospital for invasion of privacy after disclosure of his AIDS status, the party seeking closure has the burden of showing that the “‘denial [of access] is necessitated by a compelling . . . interest, and is narrowly tailored to serve that interest.’” 598 A.2d at 511 (quoting Cottman Transmission Sys., Inc., 542 A.2d at 863). There, the court found that the plaintiff could proceed as a John Doe because the right of access had been overcome by the plaintiff’s “constitutional right to privacy.” Id. at 512. In addition, the court was unwilling to recognize a right of access where doing so may chill potential plaintiffs from seeking redress in the courts for invasions of privacy relating to their health. Id. at 513.

Similarly, the presumption of access under the Rules can be overcome only upon a showing that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A). Any order limiting access to Case Records must be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order.” Md. Rule 16-912(d)(3).  In construing the Maryland Rules, courts have relied on First Amendment access law. Sumpter v. Sumpter, 50 A.3d 1098, 1106 (Md. Ct. Spec. App. 2012) (relying in dicta on First Amendment right of access to construe prior version of Rule 16-912). But, in at least some instances, the Rules explicitly permit inspection and copying of records in circumstances where such access would not be required under the First Amendment. Compare, e.g., Group W Television Inc. v. State, 626 A.2d 1032, 1034 (Md. Ct. Spec. App. 1993) (finding no First Amendment right of the press to copy videotape entered into evidence in criminal trial and distinguishing itself from cases where media or public was denied access to court records), with Rule 16-904(a) (providing that “[e]xcept as otherwise expressly provided by law, a person entitled to inspect a judicial record is entitled to have a copy or printout of the record”), and State v. WBAL-TV, 975 A.2d 909, 926 (Md. Ct. Spec. App. 2009) (public’s right to access under Rules to DVD evidence included the right to copy DVD).

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C. Procedural prerequisites to closure

There are two main procedural prerequisites to closure:  (1) prior notice of potential closure, and (2) findings of fact supporting closure.

First, “[a]dequate public disclosure of a motion for closure is particularly important because, without it, the public’s right of open access to courtrooms might not be asserted by parties to a particular proceeding.” Baltimore Sun Co. v. Colbert, 593 A.2d 224, 229 (Md. 1991); see also Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1136–37 (Md. 2000). A closure motion “must be docketed in advance of the time of the hearing to provide notice to afford an opportunity to oppose the closure motion, as well as to present alternatives for closure. The court should provide individuals opposing closure an opportunity to object and to state the reasons for that opposition before ruling on the closure motion.” Colbert, 593 A.2d at 229.

Maryland courts have remanded cases where the trial court failed to abide by the requirements of advance notice of closure motions. In Baltimore Sun v. Thanos, 607 A.2d 565 (Md. Ct. Spec. App. 1992), for example, the question was whether a presentence investigation report otherwise confidential pursuant to Maryland Code, Article 41, § 4-609 [Repealed by Acts 1999, ch. 54 §1 (current version at Md. Code Ann., Corr. Servs. § 6-112)] was nevertheless subject to inspection once it had been entered into evidence in the penalty phase of a death penalty prosecution. The court held that because the lower court had not given notice of the sealing request and an opportunity for objecting parties to be heard or made the required findings, it was required to remand the case to the Circuit Court for further consideration. Thanos, 607 A.2d at 574–75. Likewise, in Mayor & City Council, the Court of Appeals held that the trial court had erred in closing the courtroom in a civil case “immediately upon request by the parties” and by sealing the court record “within 24 hours thereafter” without affording the press and public an opportunity to object. 755 A.2d at 1136–37.

Second, a “court ruling on a motion to seal judicial records should articulate the interest sought to be protected by the seal, supported by specific findings.” Sumpter v. Sumpter, 50 A.3d 1098, 1106 (Md. 2012). Failure to do so will result in remand. Colbert, 593 A.2d 224 at 231. In Colbert, the trial made only a “broad statement that it found that the exclusion of the public was mandated in order to afford Colbert a fair trial.” Id. The Court of Appeals found this “insufficient to warrant exclusion of the press and the public from the hearing.” Id.

The Maryland Rules governing public access to judicial records are in accord. They require that a court considering a motion to deny public access to such records refrain from entering a final order on any such motion until there has been “an opportunity for a full adversary hearing.” Md. Rule 16-912(d)(1). And the Maryland Rules also require findings on the record:  “A final order shall include findings regarding the interest sought to be protected by the order.” Md. Rule 16-912(d)(2).

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II. Procedure for asserting right of access to proceedings and records

With respect to both court proceedings and case records, a member of the press or public seeking to assert the right of access may intervene in the case at issue and file a motion seeking to compel access. Likewise, members of the public (including the press) may intervene for purposes of challenging a request for closure or sealing made by the parties to an action or by the court itself.

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A. Media standing to challenge closure

Maryland courts have recognized the right of the press to intervene to assert its right to attend trials and pretrial proceedings in both criminal and civil cases. News Am. Div. (Hearst Corp.) v. State, 447 A.2d 1264 (Md. 1982) (press has right to intervene to oppose pre-trial gag order; gag order is a “final judgment” collateral to the criminal case from which an interlocutory appeal may be taken); Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991) (press may intervene to assert access rights in civil cases, including access to pretrial proceedings); Hearst Corp. v. State, 484 A.2d 292, 294 (Md. Ct. Spec. App. 1984) (“the press may intervene . . . for the limited purpose of asserting First Amendment rights,” even when such intervention occurs after the jury has retired to deliberate).

Prior to the adoption of the Maryland Rules governing access to court documents, the courts had implicitly recognized the right of the press to intervene to assert its right to inspect court documents. E.g., Mayor & City Council of Baltimore, 755 A.2d 1130, 1135 (Md. 2000) (allowing press to intervene for purposes of seeking access to civil settlement documents within court file); Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (allowing press to intervene for purposes of asserting First Amendment right to inspect presentence investigation report entered into evidence at trial). The Rules similarly envision intervention as the appropriate means of allowing the press and public to assert their access rights. E.g., Rule 16-912(a)(1) (permitting any party “including a person who has been permitted to intervene as a party” to move to inspect Case Records); see State v. WBAL-TV, 975 A.2d 909, 917 (Md. Ct. Spec. App. 2009) (under prior version of Rule 16-912, intervention in a criminal trial is appropriate judicial avenue to gain access to court records that are presumed open to the public for inspection and copying and for which access has been denied).

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B. Procedure for requesting access in criminal cases

Unless leave has been granted to proceed otherwise, the common practice in Maryland is to file a motion to intervene with the court in which the action is pending, seeking to oppose the closure. However, some judges will allow the press to assert its rights through less formal means, most often by letter seeking the relief requested.

The specific procedure for seeking access to Case Records is set forth in Maryland Rule 16-912. In most cases, once a motion to seal a particular case record has been filed, the clerk must deny inspection of that record for a period “not to exceed five business days, including the day the motion is filed, in order to allow the court an opportunity to determine whether a temporary order should issue.” Md. Rule 16-912(b). The court must then decide, on an expedited basis, whether to preclude or limit inspection of the record. Md. Rule 16-912(c). In order to enter a temporary order denying or limiting access, the court must find both that “there is a substantial basis for believing that the case record is properly subject to an order precluding or limiting inspection” and that “immediate, substantial, and irreparable harm will result to the person seeking the relief or on whose behalf the relief is sought if temporary relief is not granted before a full adversary hearing can be held on the propriety of a final order precluding or limiting inspection. Md. Rule 16-912(c)(2). Only after a “full adversary hearing” may the court issue a final order precluding or granting access to the record. Md. Rule 16-912(d)(1). The final order must contain specific “findings regarding the interest sought to be protected by the order” and, if it precludes or limits access, must “be as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order.” Md. Rule 16-912(d)(2)–(3).

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C. Procedure for requesting access in civil matters

The press may intervene in a civil proceeding for the limited purpose of asserting its rights of access to court proceedings and records. Baltimore Sun v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1137 (Md. 2000) (in civil suit, “[w]hen a court restricts public access to judicial proceedings or documents, Maryland law authorizes a newspaper to intervene for the limited purpose of challenging the restrictions as long as it acts with reasonable promptness”); see Doe v. Shady Grove Adventist Hosp., 598 A.2d 507 (Md. Ct. Spec. App. 1991) (intervention for the limited purpose of asserting the First Amendment right of access to court proceedings and court records is proper in civil context). As in criminal cases, individual judges may allow the press to assert its access rights through means other than a formal motion, such as a letter setting forth the relief requested.

The procedures for seeking access to civil Case Records under the Maryland Rules are the same as those governing records in criminal proceedings. See the “Procedure for requesting access in criminal cases” section above.

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D. Obtaining review of initial court decisions

In Maryland, a press entity that has intervened for the limited purpose of asserting its access rights is entitled to take an interlocutory appeal of an order denying or limiting access to court proceedings. News Am. Div. (Hearst Corp.) v. State, 447 A.2d 1264, 1270–72 (Md. 1982) (press has right to intervene to oppose pre-trial gag order, and that gag order is “final judgment” collateral to criminal case from which an interlocutory appeal may be taken). In Baltimore Sun v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Court of Appeals held that even where the underlying civil case and issue of courtroom closure may have become moot because the parties reached a settlement agreement, “the dispute over the court’s order sealing the record remains a live controversy,” appropriate for appeal. Id. at 1137.

With respect to Case Records, the Maryland Rules require that the court file a final order within 30 days of the required adversarial hearing. See Md. Rule 16-912(d)(6). Such orders are then subject to immediate interlocutory appeal. State v. WBAL-TV, 975 A.2d 909, 912–15 (Md. Ct. Spec. App. 2009) (both State and defendant had right to appeal from collateral order allowing media access to videotape that been entered into evidence); see also Causion v. State, 59 A.3d 1061 (Md. App. 2013) (trial court order denying defendant’s post-sentencing motion to access records of grand jury proceedings was final and appealable judgment); News Am. Div., 447 A.2d at 1270–72 (a gag order is final judgment collateral to criminal case in which it is imposed; media intervenor may take interlocutory appeal from that order).

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III. Access to criminal proceedings

For an overview of the case law and rules governing access to criminal cases and records in Maryland, see the “The roots of access rights” section above.

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A. In general

The Maryland courts have recognized that under the First Amendment and its state constitutional analogue, Article 40 of the Maryland Declaration of Rights, the public has a right of access to criminal pretrial and trial proceedings. Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 430–31 (Md. 1983); see Patuxent Publ’g Corp. v. State, 429 A.2d 554, 556 (Md. Ct. Spec. App. 1981) (First Amendment right applied in the context of pretrial gag order hearing); Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (First Amendment right of access applies to redacted presentence report entered into evidence in criminal trial; but First Amendment right might be overcome by compelling state interest in confidentiality of such reports).

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B. Pretrial proceedings

The Maryland courts also have recognized that the public’s right of access to criminal cases extends beyond criminal trials to pretrial proceedings. Baltimore Sun Co. v. Colbert, 593 A.2d 224, 229–30 (Md. 1991) (“[P]resumption that pretrial proceedings are open to the public can be overcome only by an ‘overriding interest,’ such as an accused’s right to a fair trial.”). Specifically, the appellate courts have affirmed the right of the public to attend pretrial suppression hearings, Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 427 (Md. 1983) (finding “right of public access to pretrial hearings in criminal cases”), as well as hearings concerning proposed gag orders, Patuxent Publ’g Corp. v. State, 429 A.2d 554, 556 (Md. Ct. Spec. App. 1981) (defendant’s right to an impartial jury did not outweigh public’s First Amendment right of access to pretrial gag order hearing where there existed other “lesser and alternative” means for protecting defendant’s Sixth Amendment rights).

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C. Criminal trials

The Maryland courts have recognized that the public right of access to criminal trials applies to every stage of the criminal trial, from voir dire and jury selection, through jury deliberation. Watters v. State, 612 A.2d 1288 (Md. 1992) (exclusion of public from courtroom during voir dire and jury selection in murder trial, including defendant’s family and the press, without the knowledge or consent of the parties or the trial judge, violated the defendant’s Sixth Amendment right to a public trial, requiring new trial); see id. at 1291 (“[W]hether objection to closure is made by the defendant or the press, the public may only be constitutionally excluded from a trial, including voir dire, pursuant to a narrowly tailored order necessary to protect an overriding state interest.”); Hearst Corp. v. State, 484 A.2d 292, 294 (Md. Ct. Spec. App. 1984) (“the press may intervene . . . for the limited purpose of asserting First Amendment rights,” even when such intervention occurs after the jury has retired to deliberate); id. (emphasizing that the “right of intervention” is “not curtailed by the posture of the trial”); Erman v. State, 434 A.2d 1030, 1046–47 (Md. Ct. Spec. App. 1981) (affirming denial of defendant’s request for private trial where trial court had “applied a lesser alternative by engaging in sanitizing voir dire examination in which prospective jurors indicated they could ignore media accounts during the trial” and had warned jurors against reading or watching any news reports concerning the trial).

As the Court of Special Appeals noted in Hearst Corp. v. State, “Simply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage.” 484 A.2d at 294–95; see also Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (allowing press to intervene to seek access to a presentence report entered into evidence during the penalty phase of a death penalty case, and remanding to the trial court for a determination of whether the government’s interests in the confidentiality of such reports outweighed the public’s right of access). But see Walker v. State, 723 A.2d 922, 932 (Md. 1999) (noting that “prophylactic measures, including closure, may be warranted under some circumstances . . . to maintain order, to preserve the dignity of the court, and to meet the State’s interests in safeguarding witnesses and protecting confidentiality” (citations omitted)).

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D. Post-trial proceedings

Maryland courts have not had occasion to address whether the public right of access to criminal trials extends to post-trial proceedings. But see Baltimore Sun v. Thanos, 607 A.2d 565, 568 (Md. Ct. Spec. App. 1992) (First Amendment right of access to record admitted into evidence during penalty phase); Hearst Corp. v. State, 484 A.2d 292, 294–95 (Md. Ct. Spec. App. 1984) (“Simply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage.”).

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E. Appellate proceedings

Maryland courts have not addressed the public’s right to attend appellate proceedings. However, the breadth of the public’s right to criminal proceedings generally under Maryland law would weigh strongly in favor of such access. Hearst Corp. v. State, 484 A.2d 292, 294–95 (Md. Ct. Spec. App. 1984) (“Simply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage.”).

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IV. Access to criminal court records

For an overview of the case law and rules governing access to criminal cases and records in Maryland, see the “The roots of access rights” section above.

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A. In general

The Maryland Court of Special Appeals has recognized a right of access to criminal court records inherent in the First Amendment and Article 40 of the Maryland Declaration of Rights. Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (First Amendment right of access applies to presentence report that had been entered into evidence in a criminal trial).

Access to criminal Case Records is also governed by Maryland Rules 16-901, et seq. Under the Rules, “Case Records” are defined to include “all or any portion of a court paper, document, exhibit, order, notice, docket entry, or other record, whether in paper, electronic, or other form, that is made, entered, filed, or maintained by the clerk of a court in connection with an action or proceeding,” as well as any other “miscellaneous record filed with the clerk of the court pursuant to law that is not a notice record.” Md. Rule 16-902(c)(1)(A) & (C). In other words, this category includes nearly all documents that concern a specific case before a given court, or other items that are filed with the clerk as a matter of course. In general, a presumption of openness applies to these types of records.

The Rules, however, limit or forbid inspection of certain Case Records, including records that have been expunged, search warrants, records pertaining to an arrest warrant prior to its being served; records concerning an ongoing grand jury investigation; presentence investigation reports; transcripts or recordings of court proceedings that were closed to the public, as well as any materials maintained by a court reporter that were not filed with the clerk, records containing certain sensitive medical information, and tax returns. Md. Rule 16-907. With respect to these categories of documents, there is a presumption of closure. Id. These statutory provisions cannot override the constitutional right of access, however. Cf. Thanos, 607 A.2d at 567–68.

Where the presumption of openness applies, a party seeking to seal Case Records must show that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A). Moreover, any order limiting access to Case Records—which can only be made after notice is given and an opportunity provided for interested parties to oppose closure—must be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order.” Md. Rule 16-912(d)(3). Conversely, for records that are presumptively closed, the burden is on the party seeking access to show a “special and compelling reason” requiring access. Rule 16-912(d)(5)(B). For information on the procedure for seeking access to Case Records, see the “Procedure for asserting right of access to proceedings and records” section above.

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B. Arrest records

Police records that are attached as exhibits to court filings or marked as exhibits either for identification or for admission into evidence at trial are treated in the same manner as any other Case Record. Md. Rule 16-903(d) (once such exhibits are filed or marked by the court, they are subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”); see also Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992).

Records that have not been introduced into evidence at a trial or other court proceeding or filed with the court are not considered “Judicial Records,” and are not governed by Rules 16-901, et seq. To the extent that such records remain in the custody of the police or criminal prosecutors, the press must seek access to them the same way it would seek access to any government document—by making a request under the Public Information Act (“PIA”), General Provisions, § 4-101, et seq. (governing access to public records); see also Maryland Public Information Act Manual, Office of the Attorney General (2015), available at http://www.marylandattorneygeneral.gov/Pages/OpenGov/piaManual.aspx.

While a detailed review of the PIA’s application to arrest records is beyond the scope of this Compendium, both the courts and the Maryland Attorney General’s Office have held that various records are public records subject to disclosure under the PIA. These include, for example, “a complaint, including the name and address of the victim, filed with a law enforcement agency,” “a police investigative report and arrest log that are found not contrary to the public interest,” and “a police record.” Prince George’s Cty. v. Washington Post, 815 A.2d 859, 880 (Md. Ct. Spec. App. 2003). Mug shots are considered public records as well. Pemberton v. Bethlehem Steel Corp., 502 A.2d 1101, 1119 (Md. Ct. Spec. App. 1986); see also 92 Md. Op. Att’y Gen. 26 (2007) (mug shots are not subject to the restrictions placed on “criminal history record information” by state and federal law and instead should be treated as an investigatory record of the police department subject to disclosure); id. (“there is no question that a photograph of a suspect taken by a police department . . . is a public record subject to the PIA” and “should be disclosed unless the custodian can articulate a reason why it would be ‘contrary to the public interest’ to allow inspection of the photograph”). Arrest logs listing information relating to arrests, including the name of the arrestee and the arresting officer, are also subject to disclosure. 63 Md. Op. Att’y Gen. 543 (1978); id. (arrest logs are not “records of investigation” or “investigatory files,” because they “merely reflect the end result of a police investigation” and “contain no information whatever concerning the actual investigation”).

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C. Dockets

Although no Maryland state court has decided the issue, the Fourth Circuit has found a constitutional right of access to docket sheets. Doe v. Pub. Citizen, 749 F.3d 246, 268 (4th Cir. 2014) (noting right of access to criminal docket sheets). Maryland state courts have, however, recognized the importance of docket sheets in enforcing the public’s right of access. Baltimore Sun Co. v. Colbert, 593 A.2d 224, 229 (Md. 1991) (“[F]or the public to be able to assert [its right to attend pretrial proceedings] in a meaningful fashion, the motion must be docketed in advance of the time of the hearing to provide notice to afford an opportunity to oppose the closure motion, as well as to present alternatives to closure.”); id. at 305–06 (“[A]s with a motion to close a courtroom, a motion to seal [pleadings in a pretrial motion] should be docketed reasonably in advance of the request, if practicable.”). Docket entries regarding convictions that have been “expunged” may be sealed or destroyed. Md. Rules 4-501, et seq.

(Electronic access to Maryland court dockets is available online at http://casesearch.courts.state.md.us.)

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Under the Maryland Rules, the public does not have a right of access to search warrants (or materials filed in support of such warrants) prior to their execution. Md. Rule 16-907(g)(2)(A); see also Md. Rule 4-601 (authorizing sealing and destruction of search warrants). A judge who issues a search warrant must retain a copy of it until the warrant is returned, executed or unexecuted. Md. Rule 4-601(d). But see 87 Md. Op. Att’y Gen. 76 n.4 (2002) (noting that the Fourth Circuit has found a common law right of access to such materials) (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989)).

Upon return of an executed warrant, the judge must file the warrant and related papers with the clerk of the court in which the property was seized, and the clerk keeps the warrant under seal unless the court issues an order directing otherwise. Md. Rule 4-601(g). An unexecuted warrant is void at the expiration of fifteen days and returned to the judge; the judge then may destroy the warrant or “make any other disposition the judge deems proper.” Md. Rule 4-601(h). Nor is there a right to inspect an arrest warrant or the charging documents on which it is based until either:  (a) the warrant has been served and a return of service has been filed with the court or (b) 90 days have elapsed. Md. Rule 16-907(g)(3); Md. Rule 4-212(d)(3).

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E. Discovery materials

Under the Maryland Rules, while discovery materials attached as exhibits to pretrial motions or marked as evidence in criminal hearings are public, see Md. Rule 16-903, discovery materials that have not been filed with or marked by the court are not “Judicial Records” under the Rules, and therefore are not subject to a presumption of openness. See generally Md. Rule 16-902.

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F. Pretrial motions and records

In Baltimore Sun Co. v. Colbert, 593 A.2d 224 (Md. 1991), the Court of Appeals considered the public right of access to a pretrial hearing in a death penalty case in which the defendant sought to enforce the terms of a plea agreement. It found, pursuant to the First Amendment and Article 40 of the Maryland Declaration of Rights, that the public had a qualified right of access to the hearing on the motion and remanded the case for a determination of whether the presumption of access had been overcome and, if so, to ensure that any sealing order was as narrow as possible. Id. at 228; see also Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 431 (Md. 1983) (same). The court also found a common law right of access to the underlying pleadings filed in connection with the pretrial hearings. Colbert, 593 A.2d at 231. The Legislature subsequently codified this right of access in Maryland Rule 16-902(c) (defining “Case Records”) and Maryland Rule 16-903(b) (presumption that judicial records are open to the public); see also Md. Rule 16-903(d) (once exhibits are filed or marked by the court, they are subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).

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G. Trial records

There is a qualified First Amendment right of access to records filed in criminal actions. Baltimore Sun v. Thanos, 607 A.2d 565, 568 (Md. Ct. Spec. App. 1992) (finding First Amendment right of access to “[d]ocuments entered into evidence in criminal proceedings”). Additionally, records filed in connection with criminal trials (including trial exhibits and records marked for identification, but not admitted at trial) are presumptively open to the public under the Maryland Rules. Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).

In State v. WBAL-TV, 975 A.2d 909 (Md. Ct. Spec. App. 2009), the court found the right of access under the Maryland Rules “were sufficiently similar to a First Amendment claim.” Id. at 917. There, the Court of Special Appeals affirmed the lower court’s decision granting the media access to copies of a redacted videotaped and audiotaped confession that had been introduced into evidence during a criminal trial. The court held that under the prior version of Rule 16-902(c), the video and audiotapes were “Case Records” presumed open to the public for inspection, and those opposing access must demonstrate a “special and compelling reason” as to why the court should deny or limit inspection. Id. at 921–22. Recognizing that Article 47 of the Maryland Constitution required due consideration of the impact of access on victims of crimes, the court found that Article 47 did not provide victims with an absolute right to veto a request to access and copy court records that would otherwise be available under the Rules. Id. at 922–23. Nor did the fair trial rights of the defendant in a speculative future trial outweigh the public’s interest in access to court records. Id. at 924–26.  Finally, the court held that the Rules permitted not only inspection, but also copying, of the relevant tapes, and that transcripts did not suffice as “copies” under the meaning of the Rules. Id. at 926.

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H. Post-trial records

There is a First Amendment right of access to presentence reports entered into evidence. Baltimore Sun v. Thanos, 607 A.2d 565 (Md. Ct. Spec. App. 1992). Yet, presentence reports not entered into evidence are presumptively confidential under the Maryland Rules. Md. Rule 16-907(g)(5); see Md. Code Ann., Corr. Servs., § 6-112(a)(2); see also Thanos, 607 A.2d at 568 n.4 (“It is, we believe, extremely doubtful that there is any First Amendment right of access to Maryland presentence reports absent their entry into evidence.”). Thus, in order to gain access to such reports, the press must show a “special and compelling” reason that overcomes the state interests in the confidentiality of such records.

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I. Appellate records

There are no judicial decisions, rules, or statutes related specifically to access to criminal appellate records. But see Md. Rule 8-123 (records relating to grand jury proceedings subject to appeals “shall be open to inspection only by the Court, authorized court personnel, and attorneys for the State”).

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J. Other criminal court records issues

Copying of Judicial Records: Under the Maryland Rules, the right to inspect a judicial record entered into evidence includes the right to copy that record. Md. Rule 16-904; see also State v. WBAL-TV, 975 A.2d 909 (Md. Ct. Spec. App. 2009) (affirming lower court’s grant of right to copy videotape and audiotape confession entered into evidence in criminal case under Maryland Rules). But see Group W Television, Inc. v. State, 626 A.2d 1032 (Md. Ct. Spec. App. 1993) (no First Amendment right to copy trial exhibits).

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V. Access to civil proceedings

For an overview of the case law and rules governing access to civil cases and records in Maryland, see the “The roots of access rights” section above.

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A. In general

For an overview of the case law and rules governing access to civil cases and records in Maryland, see the “The roots of access rights” section above.

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B. Pre-trial proceedings

The right of access to civil proceedings guaranteed by the First Amendment and Article 40 of the Maryland Declaration of Rights applies to pretrial proceedings. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991). The Maryland Court of Appeals found in Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), that the “common law principle of openness is not limited to the trial itself but applies generally to court proceedings and documents.” Id. at 1134. Likewise, the Court of Special Appeals has held that the “right of access” applies to pretrial proceedings. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988); see also Doe, 598 A.2d at 511.

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C. Trials

In Baltimore Sun v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Court of Appeals found a common law right of access to civil proceedings, including trials and documents. Id. at 1134. In Doe v. Shady Grove Adventist Hospital, 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991), the Court of Special Appeals found a First Amendment right of access to civil trials. There, it considered an application by the plaintiff in an action for breach of confidentiality of patient medical records and invasion of privacy arising from dissemination of his AIDS diagnosis for an order “‘sealing’ the record to the extent necessary to protect the confidentiality of his identity.” Id. at 514. The court found that although civil and criminal proceedings are presumptively open, redacting the name of the plaintiff served a compelling government interest in protecting the plaintiff’s right to privacy and the legislative judgment that medical information should be kept private. Id. at 365–66. In addition, redacting the plaintiff’s name would serve the compelling governmental interest of encouraging others whose privacy has been violated to pursue vigorous enforcement of their rights in court. Id. at 362. The court declined though to “seal the record,” and instead ordered that all papers filed identify the plaintiff as “John Doe,” or, to the extent they lead to or contain his true identity, that they be redacted. Id. at 365–66, 369–70.

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D. Post-trial proceedings

There are no judicial decisions, rules, or statutes related specifically to access to civil post-trial proceedings.

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E. Appellate proceedings

There are no judicial decisions, rules, or statutes related specifically to access to civil appellate proceedings.

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VI. Access to civil records

Access to civil judicial records is governed by the First Amendment and Maryland Rules 16-901, et seq. See the “The roots of access rights” section above for an overview of the categories of records addressed by the Rules.

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A. In general

There is a First Amendment right of access to civil court records. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511, 514 (Md. 1991) (First Amendment right of access applies to civil proceedings, and extends to “pretrial proceedings,” “trial proceedings,” and “court records”; finding that plaintiff had demonstrated a compelling interest overcoming constitutional right of access and meriting limited sealing of record).

The Maryland Court of Appeals has also recognized a common law right of public access to court records. In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1134 (Md. 2000), the Court of Appeals held that the “common law principle of openness is not limited to the trial itself but applies generally to court proceedings and documents.” Under the Maryland Rules, which codified the common law right of access, a presumptively public “Case Record” is defined to include “all or any portion of a court paper, document, exhibit, order, notice, docket entry, or other record, whether in paper, electronic, or other form, that is made, entered, filed, or maintained by the clerk of a court in connection with an action or proceeding,” as well as any other “miscellaneous record filed with the clerk of the court pursuant to law that is not a notice record.” Md. Rule 16-902(c)(1)(A) & (C).

The Rules, however, do limit or forbid inspection of certain Case Records, including records implicating the privacy rights of children (including records concerning adoption, guardianship and juvenile delinquency, or child abuse and neglect); transcripts or recordings of court proceedings that were closed to the public, as well as any materials maintained by a court reporter that were not filed with the clerk; records containing certain sensitive medical information; and tax returns. Md. Rule 16-907. With respect to these categories of documents, there is a presumption of closure, and it is incumbent on the party seeking access to overcome this presumption. These provisions cannot override the constitutional right of access, however. Cf. Doe, 598 A.2d at 511 (burden of circumscribing First Amendment right of access rests on party seeking closure).

Under the Rules, where the presumption of openness applies, a party seeking to seal Case Records must show that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A); State v. WBAL-TV, 975 A.2d 909, 922 (Md. Ct. Spec. App. 2009). Any order limiting access to Case Records—which can only be made after notice is given and an opportunity provided for interested parties to oppose closure—must be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order,” Md. Rule 16-912(d)(1) & (3). Conversely, for records that are presumptively closed, the burden is on the party seeking access to show a “special and compelling reason” requiring access. Md. Rule 16-912(d)(5)(B).

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B. Dockets

Although no Maryland state court has decided the issue, the Fourth Circuit has found a constitutional right of access to docket sheets. Doe v. Pub. Citizen, 749 F.3d 246, 268 (4th Cir. 2014) (noting a right of access to civil docket sheets). Maryland state courts have, however, recognized the importance of docket sheets in enforcing the public’s right of access. Baltimore Sun Co. v. Colbert, 593 A.2d 224, 229 (Md. 1991) (“[F]or the public to be able to assert [its right to attend pretrial proceedings] in a meaningful fashion, the motion must be docketed in advance of the time of the hearing to provide notice to afford an opportunity to oppose the closure motion, as well as to present alternatives to closure.”); id. at 305–06 (“[A]s with a motion to close a courtroom, a motion to seal [pleadings in a pretrial motion] should be docketed reasonably in advance of the request, if practicable.”). Docket entries regarding convictions that have been “expunged” may be sealed or destroyed. See Md. Rules 4-501, et seq.

(Electronic access to Maryland court dockets is available online at http://casesearch.courts.state.md.us.)

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C. Discovery materials

Under the Maryland Rules, all pleadings filed in connection with pretrial proceedings are presumptively open to public inspection. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988) (right of access applies “to pre-trial proceedings and court records” (citation omitted); Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(b) & (d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).

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D. Pre-trial motions and records

Under the Maryland Rules, all pleadings filed in connection with pretrial proceedings are presumptively open to public inspection. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988) (right of access applies “to pre-trial proceedings and court records” (citation omitted); Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(b) & (d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).

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E. Trial records

Trial records are likely subject to the First Amendment right of access. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991). Under the Maryland Rules, all pleadings filed in connection with trial proceedings, including any exhibits, are “Case Records,” which are presumptively open to public inspection. Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(b) & (d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”); see also Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1134 (Md. 2000). Under the Rules, the right to inspect a judicial record, including audiovisual records entered into evidence, includes the right to copy that record. Md. Rule 16-904.

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F. Settlement records

In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Maryland Court of Appeals considered whether a court could close the courtroom while the terms of a civil settlement agreement were placed on the record. The Court found that “[t]he common law rule that court proceedings, records, and documents are open to the public is fully applicable in Maryland except to the extent that the principle has been modified by legislative enactments or decisions by this Court.” Id. at 1135. Recognizing the “‘public’s right of open access to courtrooms’ as well as the ‘right to inspect and copy judicial records and documents,’” and finding no countervailing provision in any state statute or rule that would allow the court to close the proceedings, the court held that the trial court had erred in closing the proceedings and sealing the records of the settlement. Id. at 1136 (citation omitted). While the issue of courtroom closure was moot, the Court of Appeals ordered that the press be allowed to inspect the record, including the terms of the settlement.

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G. Post-trial records

There are no judicial decisions, rules, or statutes related specifically to access to post-trial records. Nevertheless, in Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1134 (Md. 2000), the Court of Appeals declared broadly that the “common law principle of openness is not limited to the trial itself, but applies generally to court proceedings and documents.”

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H. Appellate records

There are no judicial decisions, rules, or statutes related specifically to access to appellate records. Nevertheless, in Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1134 (Md. 2000), the Court of Appeals declared broadly that the “common law principle of openness is not limited to the trial itself, but applies generally to court proceedings and documents.”

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I. Other civil court records issues

Copying of Judicial Records: Under the Maryland Rules, the right to inspect a judicial record entered into evidence includes the right to copy that record. Md. Rule 16-904; see also State v. WBAL-TV, 975 A.2d 909 (Md. Ct. Spec. App. 2009) (affirming lower court’s grant of right to copy videotape and audiotape confession entered into evidence in criminal case under Maryland Rules). But see Group W Television, Inc. v. State, 626 A.2d 1032 (Md. Ct. Spec. App. 1993) (no First Amendment right to copy trial exhibits).

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VII. Jury and grand jury access

A. Access to voir dire

The Court of Appeals has recognized that the First Amendment right of access extends to voir dire. See, e.g., Baltimore Sun Co. v. Colbert, 593 A.2d 224, 227 (Md. 1991) (citing Press-Enterprise Co. v. Super. Ct., 464 U.S. 501 (1984)). And, in Watters v. State, 612 A.2d 1288 (Md. 1992), the Court of Appeals held that the exclusion of the public from the courtroom during voir dire and jury selection in a murder trial, including the defendant’s family and the press, violated the defendant’s Sixth Amendment right to a public trial, and that a new trial was warranted. Id. at 1291. The court wrote that “whether objection to closure is made by the defendant or the press, the public may only be constitutionally excluded from a trial, including voir dire, pursuant to a narrowly tailored order necessary to protect an overriding state interest.” Id.

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B. Juror identities, questionnaires and other records

Under the Maryland Rules, “[u]pon request, the trial judge may authorize a custodian to disclose the names and zip codes of the sworn jurors contained on a jury list after the jury has been impaneled and sworn, unless otherwise ordered by the trial judge.” Md. Rule 16-905(c)(1)(B).

In Hearst Corp. v. State, 484 A.2d 292 (Md. Ct. Spec. App. 1984), the Court of Special Appeals held that the press had the right to intervene during jury deliberations to seek access to the court file, including the names and addresses of jurors, which the trial court had sealed sua sponte. Id. at 657–59. Because the juror names had been provided to the press by the government the day after the appeal was noticed, the court did not address whether the jurors’ right to privacy was a sufficiently compelling reason to overcome the right of the press to access judicial documents, including the court file in a criminal case. Id. at 293, 294 n.4 & 295.

The Maryland Rules forbid parties who are given lists of jurors, including their name, age, sex, occupation, and address, from distributing such lists to others absent permission from the court. Md. Rule 2-512(c)(2)(B). Unless marked into evidence, juror lists are not part of the court record, and are returned to the jury commissioner. Md. Rule 2-512(c)(3). Once they are returned to the jury commissioner, they are considered “administrative records” of the court, Md. Rule 16-902(a), and became subject to Md. Rule 16-905(c)(1)(A), which provides that “a custodian shall deny inspection of an administrative record used by the jury commissioner in the jury selection process, except (i) as otherwise ordered by a trial judge orders in connection with [a party’s challenge to the process by which the jury panel was selected]; and (ii) as provided in subsections (c)(1)(B) and (c)(1)(C) of this Rule.”

Subsection (B) provides that “[u]pon request, the trial judge may authorize a custodian to disclose the names and zip codes of the sworn jurors contained on a jury list after the jury has been impaneled and sworn, unless otherwise ordered by the trial judge.” Md. Rule 16-905(c)(1)(B). Subsection (C) states that “[a]fter a source pool of qualified jurors has been emptied and re-created . . . , and after every individual selected to serve as a juror from that pool has completed the individual’s service, a trial judge, upon request, shall disclose the name, zip code, age, sex, education, occupation, marital status, and spouse’s occupation of each person whose name was selected from that pool and placed on a jury list, unless, in the interest of justice, the trial judge determines that this information remain confidential in whole or in part.” Md. Rule 16-905(c)(1)(C).

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C. Grand jury proceedings and records

Grand jury records and other records of ongoing criminal investigations are also presumptively sealed. Md. Rule 16-907(g)(6); see also Maryland Rule 4-642(a) (“Files and records of the court pertaining to [grand jury investigations] shall be sealed and shall be open to inspection only by order of the court.”). Disclosure of the “content” of a grand jury proceeding is a misdemeanor, punishable by a “fine not exceeding $1,000 or imprisonment not exceeding 1 year or both.” Md. Code, Cts. & Jud. Proc. § 8-507. Indeed, “[s]ecrecy is the lifeblood of the grand jury.” In re Criminal Investigation No. 437 in the Circuit Court for Baltimore City, 557 A.2d 235, 240 (1989).

Nevertheless, Maryland Rule 4-642(d) authorizes the filing of a motion to disclose grand jury information, placing a heavy burden on the party seeking disclosure. In order to overcome the presumption of secrecy, parties “seeking a court order for disclosure under Md. Rule 4-642[] must show that: (1) the material they seek is needed to avoid a possible injustice; and (2) the need for disclosure is greater than the need for continued secrecy; and (3) their request is structured to cover only material so needed.” In re Criminal Investigation No. 437 in the Circuit Court for Baltimore City, 557 A.2d at 244.

Grand jury secrecy is also protected by the Maryland Public Information Act (“PIA”). Md. Gen. Provis. § 4-301 (prohibiting disclosure of grand jury materials pursuant to the Public Information Act). In Office of the State Prosecutor v. Judicial Watch, Inc., 737 A.2d 592 (Md. 1999), the Court of Appeals held that the defendant could not use the PIA to end-run Rule 4-642, and found that the PIA did not override the historic secrecy of the grand jury. Id. at 600. The Court suggested that a third party, such as a press organization, might never be able to make the required showing. Id. (noting that the defendant was “an organization that is not a person in interest under the PIA, that is unrelated to any party in the criminal investigation, and that is not a governmental or law enforcement entity. Therefore, none of the showings required for disclosure of grand jury files and records have been made or even attempted to be made, nor, under the circumstances, could they have been.”).

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D. Interviewing jurors

In Butterworth v. Smith, the U.S. Supreme Court held that a statute prohibiting in perpetuity a grand jury witness from disclosing his testimony violated the First Amendment. 494 U.S. 624, 632 (1990) (holding that interest in grand jury secrecy does not “warrant a permanent ban on the disclosure by a witness of his own testimony once a grand jury has been discharged”). The Maryland courts have not considered the application of Butterworth to Maryland Code, Courts and Judicial Proceedings, § 8-507, which prohibits grand jury witnesses from disclosing the “content” of a grand jury proceeding.

The Maryland courts have likewise not had occasion to consider the right of the press to interview petit jurors.

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VIII. Proceedings involving minors

A. Delinquency

As recognized by the Maryland Court of Appeals in Baltimore Sun Co. v. State, 667 A.2d 166 (Md. 1995), courts “may close juvenile proceedings to the public in instances where closure would be impermissible in other court proceedings.” Id. at 171. Where a minor “in need of supervision” or charged with a delinquent act is charged with conduct that would be a misdemeanor if committed by an adult, “the court may exclude the general public from a hearing, and admit only the victim and those persons having a direct interest in the proceeding and their representatives.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-13(f)(2). Where the child is charged with conduct that would be a felony if committed by an adult, “the court shall conduct in open court any hearing or other proceeding at which the child has a right to appear.” Id. § 3-8A-13(f)(3)(i). Under such circumstances, “the name of the respondent and the date, time, and location of the hearing” are likewise “open to inspection.” Md. Rule 16-907(a)(2). However, even in these quasi-felony cases, the court may exclude the public for “good cause.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-13(f)(3)(ii).

In Baltimore Sun, the Court of Appeals held that a juvenile court could condition press access to a juvenile proceeding on the press’s agreement not to disclose confidential information obtained during the proceedings. 667 A.2d at 172–73. The court held that a juvenile court could not, however, constitutionally condition access to juvenile proceedings upon required publication of specific material or order the media to refrain from publishing material lawfully obtained from sources outside of the judicial proceeding. Id.

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B. Dependency

Under the Maryland Rules, judicial records concerning adoption, guardianship, and “child in need of assistance” (i.e., abuse) cases are presumptively closed to the public. Md. Rule 16-907(a)(1)–(2); see also, e.g., Md. Code Ann., Cts. & Jud. Proc. § 3-827(a)(1) (court records pertaining to cases concerning “children in need of assistance” “shall be confidential and their contents may not be divulged, by subpoena or otherwise, except by order of the court on good cause shown”).

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C. Other proceedings involving minors

Under the Maryland Rules, judicial records concerning adoption, guardianship, and “child in need of assistance” (i.e., abuse) cases are presumptively closed to the public. Md. Rule 16-907(a)(1)–(2); see also, e.g., Md. Code Ann., Cts. & Jud. Proc. § 3-827(a)(1) (court records pertaining to cases concerning “children in need of assistance” “shall be confidential and their contents may not be divulged, by subpoena or otherwise, except by order of the court on good cause shown”).

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D. Prohibitions on photographing or identifying juveniles

In Baltimore Sun Co. v. State, 667 A.2d 166 (Md. 1995), the Court of Appeals recognized that “while a court can place reasonable restrictions on the media’s use of information obtained in a confidential juvenile proceeding, it cannot limit the media’s publication of information which it legitimately collected from other sources.” Id. at 169. In that case, a juvenile court proceeding involving the abuse of an infant, the Court found that the lower court could not restrict the publication of a photograph of the juvenile obtained from the local police department. Id. at 169–74.

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E. Minor testimony in non-juvenile courts

Similarly, the Maryland Court of Appeals has held that closing the courtroom during the testimony of a 14-year-old alleged sexual abuse victim violated the defendant’s Sixth Amendment rights. Carter v. State, 738 A.2d 871, 880–81 (Md. 1999). The court emphasized that while the trial judge has the power to close the courtroom under such circumstances, the judge must provide case-specific findings justifying such an order. Id. at 876–78. The court also suggested that the judge considering a motion to close the courtroom during a sexual abuse trial should hold an evidentiary hearing and may not simply rely on a proffer from the prosecution. Id.

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

The Maryland courts have not had occasion to consider access to tribal courts. There are no federally recognized tribes in Maryland. The two Piscataway tribes, which gained state recognition in 2012, and the Accohannock tribe, which gained state recognition in 2017, do not have tribal courts.

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B. Probate

The Maryland courts have not had occasion to consider access to probate courts.

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C. Competency and commitment proceedings

The Maryland courts have not had occasion to consider access to competency or commitment proceedings.

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D. Attorney and judicial discipline

The Maryland Rules define the term “Special Judicial Unit” to mean “(1) the State Board of Law Examiners, the Accommodations Review Committee, and the Character Committees; (2) the Attorney Grievance Commission and Bar Counsel; and (3) the Commission on Judicial Disabilities, the Judicial Inquiry Board, and Investigative Counsel.” Md. Rule 16-902(l). Rather than set out a general policy of access to the records or proceedings of those entities, the Rules provide that “[a]ccess to judicial records of special judicial units is governed by the confidentiality Rules applicable to those particular units.”  Md. Rule 16-905(b). For the Judicial Disabilities Commission, the Judicial Inquiry Board, and Investigative Counsel, see Md. Rule 18-409. For the Board of Law Examiners, the Accommodation Review Committee, and the Character Committees, see Md. Rule 19-105. For the Attorney Grievance Commission and Bar Counsel, see Md. Rule 19-707.

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

In Maryland, the press has standing to intervene to oppose gag orders placed on trial participants. News Am. Div. (Hearst Corp.) v. State, 447 A.2d 1264, 1269 (Md. 1982) (non-party newspaper had standing to claim its First Amendment rights had been violated by a gag order prohibiting counsel, parties, witnesses and court personnel from making extrajudicial statements for dissemination by means of public communication relating to certain aspects of criminal case).

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B. Gag orders on the press

In News American Division (Hearst Corp.) v. State, 447 A.2d 1264 (Md. 1982), the Court of Appeals held that the press had standing to assert its First Amendment rights in opposition to a gag order on the parties. Id. at 1269. Since the gag order at issue had expired, however, the court did not consider whether the order entered in that case was appropriate. Id. at 1268. In State v. Cottman Transmission Systems, Inc., 542 A.2d 859 (Md. Ct. Spec. App. 1988), the court held that a gag order providing that “‘there is to be no communications with the press’” by the Attorney General, the plaintiff in the civil suit, was “too sweeping.” Id. at 864–65 (citation omitted). Noting that “a valid distinction exists” between prior restraints of the press and “silencing the trial participants, especially counsel,” the court nevertheless agreed that “pretrial comments and news releases emanating from the Attorney General’s office would seriously undermine the administration of justice,” and therefore amended the gag order to prohibit “extra-judicial communications with the media relative to the merits of the case.” Id. at 860, 865; see also Mann v. State’s Attorney for Montgomery Cty., 468 A.2d 124, 127 (Md. 1983) (trial court erred in granting media the right to interview criminal defendant declared incompetent to stand trial and whose attorney objected to interviews on his behalf).

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C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

The Court of Special Appeals in Baltimore Sun v. Thanos identified seven, non-exhaustive interests to consider in opposing a presumption of access in criminal matters, including:  “1. The need to encourage individuals, including the defendant, with relevant information to provide it to the Probation Office for ultimate transmittal to the sentencer with assurance of confidentiality;” “2. Considerations of the victim’s privacy and that of their families;” “3. Protection of the defendant’s privacy, including references to his medical history;” “4. Protection of confidential source information, cooperation by the defendant with ongoing criminal investigations, and grand jury material;” “5. Concern that the report includes irrelevant, unsupported statements which the defendant chose not to challenge;” “6. Protection of third persons from release of embarrassing personal information;” and “7. Avoidance of prejudice to the defendant prior to the imposition of sentence.” Baltimore Sun v. Thanos, 607 A.2d 565, 569–70 (Md. Ct. Spec. App. 1992); see also, e.g., Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 512 (Md. Ct. Spec. App. 1991) (discussing the constitutional right of privacy as a consideration in a civil invasion of privacy matter); Md. Rule 16-907 (listing Case Records to which the “custodian shall deny inspection”).

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B. Cameras and other technology in the courtroom

Use of cameras in criminal trials and proceedings is forbidden by statute, see Md. Code Ann., Crim. Proc. § 1-201, and the use of cameras in the civil and appellate courts is limited. Maryland Rule 16-601, et seq., governs the use of cameras or other recording equipment by the news media in their reporting on civil and appellate proceedings. A press entity seeking permission to provide “extended coverage” of a proceeding (i.e., to record or broadcast proceedings “the use of recording, photographic, television, radio, or other broadcasting equipment,” see Rule 16-601(a)(1)) must submit a request in writing to the court clerk at least five days before the proceeding is scheduled to begin. Md. Rule 16-604(a). Extended coverage “may not be permitted in a proceeding in a trial court unless all parties to the proceeding have filed a written consent or consent on the record in open court,” except that no consent is required from government entities. Md. Rule 16-605(a)(2). All-party consent is not required in the Court of Special Appeals or Court of Appeals.  Md. Rule 16-605(a)(4). Extended coverage is “limited to proceedings in the courtroom in the presence of the presiding judge,” and outside the courtroom extended coverage is prohibited “of persons present for a judicial or grand jury proceeding; and where the extended coverage is so close to a judicial or grand jury proceeding as likely . . . to identify persons present for the proceeding or . . . to interfere with the proceeding or its dignity or decorum.” Md. Rule 16-606(b)(1)-(2).

Furthermore, Rule 16-607 sets forth a number of limitations on the number of cameras allowed and where they may be positioned. In particular, no more than one television or movie camera is permitted in any trial court proceeding. Md. Rule 16-607(b)(1). Two cameras are permitted in appellate proceedings. Id. Likewise, only one still photographer, using no more than two cameras with no more than two lenses for each camera, may be present in a trial court. Md. Rule 16-607(c)(1). Only one “audio broadcast system” is permitted. Md. Rule 16-607(d)(1). Media entities are responsible for agreeing to pooling arrangements; if there is disagreement, the court can exclude all media representatives from conducting extended coverage. Md. Rule 16-607(e).

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C. Tips for covering courts in the jurisdiction

The Bench-Bar-Media Advisory Group’s Journalist’s Guide to Maryland’s Legal System offers a wealth of practical advice for journalists covering the Maryland courts. It is available online at: https://online.flippingbook.com/view/691761/.  The Maryland Court of Appeals streams its oral arguments online at: http://courts.state.md.us/coappeals/webcasts/index.html. You can also obtain information about the jurisdiction and location of the various courts from the Maryland Courts website: http://www.mdcourts.gov.

Contact information for the various courts is available at the Maryland Courts website: http://www.courts.state.md.us/courtsdirectory.

The Maryland District Courts audio record all proceedings. While transcripts are available only to litigants in certain civil cases on appeal, anyone may request a recording of a proceeding, at the cost of $15 per proceeding. For more information, see the District Courts website at http://www.mdcourts.gov/district/forms/acct/dca027br.pdf.

Clerks of courts are also required to make computer terminals available at courthouses that the public may use free of charge in order to access judicial records that are open to inspection. See Md. Rule 16-910(c).

Procedures vary by court and individual judge. When in doubt, ask the courtroom deputy for guidance.

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