Access for all: A look at court record access in Maryland
Posted: 7:00 pm Sun, July 11, 2010
Daily Record Legal Writers
Court documents are at the heart of much of The Daily Record’s reporting. But even we are sometimes stymied in our efforts to track down case files. The coveted manila folders might be in a judge’s chamber or floating between departments in the clerks’ office. Occasionally, we are told we cannot see a file even if it is available.
All of this got us thinking: if we can’t see court files and it’s our job, then how does the average citizen fare?
In other words, how strong is Maryland’s commitment to access to court records?
This spring, we visited circuit and district courts in 12 counties, representing half the state’s 24 circuits. We did not identify ourselves as reporters unless specifically asked, and we each went to courthouses we do not regularly cover. The goal was to find out whether regular citizens are able to gain access to public court records, which are presumed to be open.
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“Courts are the only context out there at all where there is an actual First Amendment right to get information,” said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press in Washington, D.C.
“That does not mean that it’s absolute, but to place that information off-limits they have to have a darn good reason, and it can’t be just a blanket ban; it has to be something that is found with particularity,” Dalglish said.
At each courthouse, we asked for a mix of case files: old and new, civil, criminal, divorce, paternity, protective orders. We also made sure to ask for files that that we suspected would be in chambers; such files are still public record even if they are on the judge’s desk.
Overall, we were able to examine most of the files we requested.
“I’m actually kind of heartened by your results,” Dalglish said. “You got better results than I think a lot of states would.”
Still, there were inconsistencies in access rules from court to court, and there were some trouble spots, revealing unclear office policies and gaps in employee training.
For example, in many district courts we visited, we were told that we could see only a small number of cases per day, usually three or five. That’s a restriction that irked Dalglish and did not sit well with Ben C. Clyburn, chief judge of the district court statewide.
Another district court restriction — the need to give one’s name and contact information on a form that is added to and becomes a permanent part of the court file — arguably raises privacy concerns for those who want to view public records.
Over in the circuit courts, the policies varied. In one case, a reporter was flatly turned down when she asked to see records that were with judges. That shouldn’t have happened, said the chief clerk in that county when we contacted her later.
In another case, one of our reporters apparently aroused the suspicion of an employee at the clerk’s office, who inquired about his relationship to the case before giving him the file. That was against office policy, the chief clerk said.
Jim Lee, editor of the Carroll County Times, said proper training of public employees is key, especially in small counties.
“If the people are not used to it and you’re the first person who’s walked into their office asking for something in five years, the first response is going to be, ‘No, you can’t have that,’” said Lee, who has coordinated several open-records audits. “That’s where the education comes in handy.”
Read on to find out more about our experiences at the courthouses and about what the people in charge thought of our results.
I told the clerk at the Baltimore City District Court on North Avenue I’d like to see six case files.
“You can only see three,” she said.
I asked why three; she said it was court policy. So I gave her the names for five cases, figuring at least three of them would have to be in the file room.
About 20 minutes later, I was handed all five of the files. I didn’t have to fill out any paperwork nor show the clerks photo identification.
— Danny Jacobs
The rule on the number of cases we could see per day was one of the most pervasive restrictions on access to court records. We encountered a limit at many district courts we visited, though it was only sometimes actually enforced.
When we asked the counter clerks to explain the rule, they always told us it was office policy, sometimes adding that it was to prevent one customer from monopolizing a clerk’s time.
“That strikes me as an overworked, underfunded clerk trying to show you who’s boss,” Dalglish said.
District Court Chief Judge Ben Clyburn didn’t like the restriction either.
“We shouldn’t require you to make multiple trips or make multiple requests,” he said.
After learning about our experience, Clyburn said he would eliminate the limit.
And he has, Baltimore County District Court Administrative Clerk Michael Vach said last week.
“We had that in place, but with your study as a matter of fact, we’ve been told to change that so there is no limit on the number of files that you can request, but whether or not you get them all at a time is a different matter,” Vach said. “If you’re asking for a large amount of files, we’ll do our best to produce them right away, but that will also depend on the volume of work going on at that moment.”
In chambers: a contrast
In Frederick County Circuit Court, two of the case files I wanted were with two different judges. I asked a clerk whether I could see one of them, and she told me flatly that I couldn’t. I thanked her and went to figure out how else I could get the files.
Someone at the courthouse information desk confirmed that I was not allowed to see files that were with a judge or even talk to a judge’s assistant. I pressed her and she skeptically sent me back to the clerk’s office.
I spoke to a different clerk this time and told her I wanted to see files that were in chambers, and she, too, told me I couldn’t. I told her it was my understanding that they were still public record, so surely there must be a way to request them. She agreed with me that they were public but said the clerks are not permitted to ask judges to see files that are in chambers. I thanked her and gave up.
— Caryn Tamber
Sandra K. Dalton, clerk of the Frederick County Circuit Court, said she understands why her employees would not contact a judge’s chambers to ask about a file.
“I’m not going to lie; judges don’t like it when you come in and take files away from their desk,” she said. “For that, I do apologize, but I can’t totally say that my clerk didn’t say what she has been led to believe by the third floor [where the judges’ chambers are].”
Still, Dalton said, the requests should have been handled differently.
“The answer has become the easy, safe way out of saying it’s in chambers,” she said. “I would have liked them to have asked you if it was an urgent need or if it was a need where you could come back tomorrow. We don’t deny the public access to those files.”
She said The Daily Record’s audit alerted her to “a training moment.”
At the Howard County Circuit Court, all of the criminal cases I wanted were available immediately, except for one that was with the judge. Without me even having to ask, the criminal clerk offered to call up to chambers and have the judge’s clerk bring the file down. The file was in my hands within three minutes.
On the civil side, one file was again with the judge. I told the civil clerk that the criminal clerk had called up to chambers to get a file, and she immediately did the same for me.
— Caryn Tamber
Wayne A. Robey, deputy clerk of the Howard County Circuit Court, said it’s just good practice to provide files that the judge has in chambers.
“Sometimes files can be up there for awhile,” he said.
Who wants to know?
I requested five civil-case files at the Prince George’s County Circuit Court on March 18 and received three of them within five minutes. The aide told me one of the missing files — a child-custody case — would be found in the Child Support/Paternity file room; the other — a case that closed in 2003 — would be in the Microfilm room.
The assistant in the Microfilm room was also helpful. She not only found the file for me but placed it in the microfilm-viewing machine.
But my request for the child-custody-case file did not go as smoothly. The aide, in stark contrast to her colleagues in the civil-file and microfilm rooms, asked me my name and if I was an attorney or party in the case. When I asked why she had questioned me, the aide responded I had hesitated in telling her the name of the case and that aroused her curiosity.
“That’s just me,” she said.
I never did get that file, as 40 minutes later I was told it could not be found.
— Steve Lash
Called several weeks after Lash’s visit, Prince George’s County Circuit Court Clerk Peggy Magee said the aide’s questioning “was not the right response” to a request for a file.
“The records that we have in all of our divisions are open to the public, except if they are sealed,” she said. “Trust me. That won’t happen again.”
Magee said she tells all her employees at the Upper Marlboro courthouse, “You don’t work for me. You work for the people who come to the counter and ask for assistance.”
The staff at the Montgomery County Circuit Court was polite and helpful, but to get the eight out of 10 files that I ultimately obtained, I had to go to six different offices within the courthouse.
At the criminal files office, I was asked why I needed the two files I sought, but when I said that I was just interested, the clerk handed over one of the cases. For the other, she sent me up to the courtroom clerks’ office.
There, I was asked whether I was one of the attorneys on the case. When I said no, I was denied access because the file was “confidential.” When I asked why, the clerk said she did not think she could say.
— Caryn Tamber
Loretta Knight, clerk at the Montgomery County Circuit Court, said the volume of cases at her courthouse is so high that she’s running out of space, which accounts for the files being so spread out. Once the new annex for the courthouse is completed, the situation should improve, she said.
The courtroom clerk who would not disclose why a case was confidential should have given an answer, Knight said. In this case, the file was sealed because it involved the sexual abuse of a minor, she said.
Taking names for the file
At the Carroll County District Court, the clerk was a bit gruff upon hearing my requests.
“What do you want with them?” she asked.
But after I filled out a form, she brought me all the files, civil and criminal at the same desk. I couldn’t leave that desk, but she said I could drag a chair over if I wanted to sit down to read them. When I asked what would happen with the single file request form I filled out, she said it would go in the file.
“Is there a problem with that?” she asked.
I said there wasn’t and clocked out of the district court within 15 minutes.
— Brendan Kearney
At almost every district court in the state, we were told to fill out a form with the name and number of the case we were seeking, our name, address and phone number. We usually had to fill out one for each file we wanted.
When we asked whether the form would be kept with the file, making our information available to anyone else who pulled the case, we were usually told that it would. And, in follow-up visits, another reporter generally found the forms in place.
In Montgomery County, a clerk assured a reporter that the form would remain confidential. When our follow-up reporter went back to check on those files, she was told she could not see them right away. She filled out a form and was told she would be contacted within 24 hours about the files’ availability, but no one ever called.
Dalglish said keeping a requester’s name in the file is “stupid,” but is authorized by law in some states. Even in Maryland, which does not have a statutory requirement, it probably does not violate open records laws, she said.
“I think it’s weird and unnecessary but it’s probably not illegal,” she said.
Still, Senate Judicial Proceedings Committee Chairman Brian E. Frosh said, it’s problematic.
Frosh, a partner at Karp, Frosh, Wigodsky, Lapidus & Norwind P.A., said he had never seen the forms. They seem to stand in the way of openness, he said.
“I’m not sure that private citizens ought to have to jump through the hoop of [having] to fill out anything,” he said.
He was uncomfortable with the forms being kept with the files, as well.
He said that when he goes to the Montgomery County Circuit Court to look at a case, he is asked to fill out a card only if he is bringing the file from one place to another within the courthouse. The card is kept with the clerks so that if something happens to the file before it’s returned, the clerks know where to look. But when the file comes back, the card doesn’t go into it, and that seems like a more logical system to Frosh.
“If the purpose of it were so that somebody could see that Brian Frosh is checking out files on this or that person, that doesn’t seem right to me,” Frosh said. “They’re public records, and anybody who wants to see them should able to do so without intrusion on their own person.”
He also questioned why the district court has instituted a more restrictive access system than the circuit courts; district court files are hardly more sensitive than circuit court files, he said.
Clyburn, though, said requests for public information are themselves public, so it makes sense to keep them with the file.
The clerk at the Baltimore County District Court asked for ID, saying she was going to hold it until the files came back. She said I would be “liable” otherwise.
— Brendan Kearney
Employees at some courts requested our driver’s licenses before we could see the files; others didn’t.
“I was a little surprised that we had some of these inconsistencies,” Clyburn said.
He said he did not know some district court locations routinely request identification, but he liked the idea. In the past, people have destroyed or walked off with court documents, so anything that helps the court track them down would be helpful, he said.
The day after Clyburn spoke with The Daily Record, he was scheduled to meet with the administrative clerks of every district court. He said he would speak with them about standardizing the rules for access.
After the meeting, a court spokeswoman said there would be new procedures for access to district court files, including eliminating the limit on the number of files per day that a single customer may access. Spokeswoman Angelita Plemmer also said clerks will now allow patrons to fill out a single form for all the files they want, rather than one form for each file. The form will be photocopied and placed in each file requested.
Sure enough, when another reporter retraced our steps in early July, at one of the district courts she was asked to fill out only one form for all the cases she wanted.
Any non-officer of the court who requests a file will now have to show identification, Plemmer said.
The reporter who visited the Washington County District Court in May was not asked for his license. But when he spoke to Dixie Scholtes, administrative clerk for that court at the end of June, after the Clyburn meeting, she said her office is now requiring identification “as of last week, I guess.”
Some have suggested that the Maryland court system’s planned move to electronic records will expand access to court records and eliminate inconsistencies among courthouses.
Maryland Electronic Courts, as the program is called, will launch its pilot program in Anne Arundel County in 2012. By 2015, all 2 million cases filed annually across the state, from district court to the Court of Appeals, will be part of the same electronic case management system.
Clyburn, who chairs the program’s advisory committee, said last month at the Maryland State Bar Association’s Annual Meeting that the new system will make court records available to the public in real time, around the clock and remotely, just like the federal filing system, known by the acronym PACER.
“Everyone does everything online; now the justice system will catch up to the rest of society,” Clyburn said.
Alice Neff Lucan, a Washington, D.C., media lawyer, said electronic access in Maryland would be a big improvement for the public’s right to know, especially if it’s modeled after PACER.
“It’s just court access heaven, as far as I’m concerned,” she said.
But Dalglish of the Reporters Committee said she is not convinced that electronic court records are a panacea. In fact, she said, the phasing out of paper records may make it easier for officials to deny the public access to sensitive files.
“It’s a blessing and a curse, because [states are] all coming up with rules now that limit what you can get at when it’s electronic, and basically the rule of thumb that I follow is if it mentions a human being, you’re going to have a real hard time getting it in the future,” Dalglish said. “If it gives any identifying information about an individual, any identifying information about a witness, a victim, an investigator, it’s just gone. And that’s very, very troublesome.”
For this project on access to court records, The Daily Record’s law reporters visited circuit and district courthouses in 12 counties.
We asked for the same types of files in each county: a certain number of current and old civil cases, current and old criminal cases, a protection from abuse order, a divorce case, and a child abuse or paternity filing. After our visits, we took careful notes about which files we had been allowed to see, the reasons for any denials of access, and whether we had been asked to present identification or fill out any forms.
The initial visits took place in May and June. After the reporters finished our tour of the courthouses, Daily Record reporter Anna Isaacs retraced our steps, going to the same courthouses and asking for the same files.
We also called the chief circuit court clerks in every county we visited, as well as District Court Chief Judge Ben C. Clyburn, so they could comment on our results.
Though we visited more than 24 courthouses, you will not see all of them mentioned in our story. We only included the ones where something notable — either good or bad — occurred.
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