Courts must kill ‘confidential’ filing to preserve integrity

Some Maryland lawyers have been using a loophole in the state’s electronic court filing system to deem documents “confidential” with the click of a mouse, keeping them secret without having to follow formal legal procedure, according to a report by Capital Gazette reporter Alex Mann.

A judiciary spokeswoman has since promised that administrators would review the situation and consider what, if any, action to take. But it’s really very simple: The loophole must be closed. Filers should voluntarily cease using the “confidential” designation, whether they’re abusing it or not, and the judiciary must scrub it as an electronic option.

In fact, members should have done it years ago. The judiciary sent lawyers an email in 2017 complaining that some of them were “designating entire documents as being confidential without any supporting rule or statute” and urging them to cut it out. It appears the warning went unheeded. So, it’s time to shut it down.

What’s to review? Why such circumvention was ever an option for this kind of electronic filing, now available in 21 out of 24 Maryland jurisdictions, is unclear. It isn’t for the paper version. If a lawyer wants to keep something sealed when filing the old-fashioned way, he or she must have a compelling reason and include a legal request along with the documents; that triggers an automatic five-day shield and a court review to determine what happens next, which could include a hearing among the parties before a judge. If lawyers just want to hide only certain details, like social security numbers, they’re supposed to cite a rule and file a redacted public version of the record, with the censored sections limited to the protected information.

Certainly the Maryland Judiciary, or someone it contracts with, can figure out a way for filers to follow the basic rules when submitting electronically. The federal courts do it; perhaps they have some pointers. (There’s a project worthy of administrator review, judiciary.)

Maryland Rules of Procedure governing courts expressly state that “judicial records are presumed to be open to the public for inspection” unless closed for a defined reason. And that the presumption includes electronic filings: “A judicial record that is kept in electronic form is open to inspection to the same extent that the record would be open to inspection in paper form,” reads Rule 16-910. And there are good reasons for courts to operate in the open — including their own accountability. The public must be able to see the system’s performance to have any shred of faith in it. And for case outcomes to have a deterrent effect, they must be open to inspection.

A qualified right of access to courts is rooted in common law and the U.S. Constitution, which affords criminal defendants the right to a public trial (6th Amendment), and the people and the press access to court proceedings (First Amendment). The First Amendment also has been interpreted to require that record sealing be done narrowly to satisfy specific and compelling confidentiality needs; wholesale blocking of documents hardly meets that measure.

Mr. Mann discovered the restricted access designation when researching the Anne Arundel case involving the murder of five Capital Gazette staffers. He found that roughly 1,000 documents — 70% — were filed as “confidential.”

After the Capital, and its sister paper, The Baltimore Sun, filed a motion asking the court to unseal certain records that had been hidden without public notice, Anne Arundel Circuit Court Judge Laura Ripken reviewed the documents and ordered some information opened — and left a substantial amount under seal.

And we’re fine with that. We know this particular case involves sensitive subject material that likely should be shielded, including medical records of the confessed shooter. That the judge must balance the defendant’s right to a fair trial with the public’s right to know, and we accept her decision — because she made one.

It’s the random closing of case files by those filing them, without judicial review, we have a problem with. Stop it.