The Maryland Judiciary has proposed new rules to crack down on potential misuse of an electronic filing feature that allows attorneys to shield documents from public view.
The Court of Appeals Standing Committee on Rules of Practice and Procedure fast-tracked the issue of “confidential” filings earlier this year after newspapers flagged hundreds of filings in the Jarrod Ramos case in Anne Arundel County that were not available for view at public terminals at the courthouse but also not formally sealed by court order.
Ramos pleaded guilty but not criminally responsible last year to killing five employees at the Capital Gazette newspaper in Annapolis in 2018 and is currently awaiting a trial on his culpability. The Capital Gazette and Baltimore Sun newspapers filed an emergency motion to intervene and unseal court records in late October and had a hearing in January.
Retired Court of Appeals Judge Alan M. Wilner, who chairs the rules committee, said Monday that the publicity surrounding the shielding of records in the Capital Gazette case prompted the rules committee’s quick response.
“We did need to work on it quickly,” he said. “It was something that needed to be addressed just from a purely judicial perspective.”
The proposed rules will be discussed at a public meeting Friday and Wilner said he hopes to have them before the Court of Appeals for approval in a matter of weeks.
At a January hearing on the newspapers’ motion before Anne Arundel County Circuit Judge Laura S. Ripken, it became apparent that both prosecutors and defense attorneys involved in the case had marked numerous filings as “confidential” in the Maryland Electronic Courts (MDEC) system.
Confidential filings have a specific and limited purpose under the Maryland Rules and MDEC guidance, and the proposed new rules and amendments seek to clarify the procedure and make it more transparent when something is shielded from the public.
The changes will now require a submission to state prominently on the first page if it contains restricted information. The filing must be accompanied by a form, which will be public, that states the reasons for shielding the document. If an entire document is not subject to public inspection, the filer must explain why in the form or otherwise submit a redacted version of the document for public viewing.
Restricted information is redefined in the amendments as information “that, by Rule or other law, is not subject to public inspection or is prohibited from being included in a court record absent a court order.” Attorneys are instructed to familiarize themselves with the kinds of information that must be redacted or shielded.
To place a document under seal, the filer must state the legal basis to seal it, include “sealed” in the file name, and file a motion and proposed order to seal. Court clerks are instructed to reject submissions purporting to be sealed that do not refer to a sealing order already in place or include a motion to seal. The motion to seal will be public.
Wilner said it became apparent that attorneys were marking documents confidential when they contained any confidential or restricted information but were not accompanying their filing with a redacted version for the public or a motion to seal. He said that practice should end under the revised rules.
“Hopefully we’ll be able to get it approved,” he said of the proposed changes.