Courts must kill ‘con­fi­den­tial’ fil­ing to pre­serve in­tegrity

Baltimore Sun Sunday - - NATION & WORLD -

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.

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