Legal Analysis on Court Records |
December 13, 2000 MEMORANDUM FOR CAROL MELAMED FROM: Patrick J. Carome and Steven M. Dunne RE: Legal Analysis of Proposals Concerning Public Access to Maryland Court Records Consistent with constitutional and common law principles and with statutory requirements, Maryland has a long history of providing open access to the records of public court proceedings. Maryland courts have made it clear that such access is critical for Maryland citizens and others who wish to observe and to evaluate the public business transacted in Maryland’s courts as well as the performance of those courts and the functioning of the laws that they implement. The two proposals being considered by the Ad Hoc Committee on Court Records — the Draft Judiciary Policy on Public Access to Records ("Draft Access Policy" or "Draft Policy") and the Draft Administrative Order ("Draft Order") — dramatically depart from this tradition and are contrary to longstanding practice and governing law. They would significantly restrict and in some instances prohibit public access to court records; they would, for some requests, require requestors to identify themselves and their intended use of the requested information; and they would allow court officials broad discretion to make certain access decisions based on these and other legally impermissible criteria, such as whether the proposed use of the information is "legitimate" from an official perspective. This memorandum reviews the serious legal issues raised by the Draft Policy and Draft Order in an effort to inform further discussion by the Committee before any final action is taken. BACKGROUND A. Draft Access Policy The Draft Access Policy is a sweeping proposal that would regulate access to all "public records maintained by units of the Judiciary," including both civil and criminal court records. (Draft Access Policy § I(B).) The Draft Policy covers both paper and computerized records, and it addresses requests for access to such records made in person (orally and in writing), by mail, and by telephone, and also electronic, or "dial-up," access by computer. The Draft Policy covers a variety of access issues, from the form and substance of requests for access to the payment or waiver of costs. The Draft Access Policy is detailed and complicated. Many of its particulars are problematic, but most important are the ways in which the Draft Policy would restrict access to court records that are currently open to the public. The main restrictions are: For paper records:
For computerized records:
In sum, the Draft Policy poses three major kinds of problems: First, it limits the kind and number of records to which there is unfettered public access. Second, it requires requestors for certain types of records to identify themselves and to provide information about the intended use of the records. Third, it gives unprecedented discretion to government officials to pick and choose how much access to allow, to whom and for what purpose — discretion that is virtually unconstrained given the number of key terms left undefined and the subjective nature of many of the factors that must be considered. B. Draft Administrative Order The Draft Administrative Order would place even more severe restrictions on public access to court records of criminal proceedings than the Draft Access Policy. The Draft Order applies to both paper and computerized criminal court records and limits access to them by:
The Draft Administrative Order poses legal problems that are similar to those posed by the Draft Access Policy. First, it would drastically limit access to records that are now publicly available by (1) ending public dial-up access to criminal court records; (2) imposing such detailed requirements for requests as to hamper public access to paper criminal court records; and (3) ending public access to centrally maintained, computerized criminal court records that identify individuals. In addition, like the Draft Policy, the Draft Administrative Order discriminates among requestors based on who they are and how they intend to use the information. The Draft Order gives broad discretion to government officials to determine subjective and undefined matters such as whether a particular research activity is "legitimate." C. Legal Basis for the Draft Access Policy and Draft Administrative Order The Draft Access Policy and Draft Administrative Order purport to implement existing statutes and to be otherwise consistent with existing law. The Draft Policy apparently is intended to provide guidelines for the judiciary’s compliance with the Maryland Public Information Act ("PIA"). The Draft Order relies on the PIA as well as the Maryland statute that created the Criminal Justice Information System ("CJIS"), and it also relies on quotations from a United States Supreme Court decision interpreting the federal Freedom of Information Act ("FOIA"), United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). Neither the Draft Policy nor the Draft Order refers to constitutional or common law rights of access to court records long enjoyed by members of the public. Furthermore, although existing court rules permit access to criminal history record information contained in court files, it is unclear if the Draft Policy and Draft Order, which are not being reviewed by the Rules Committee, are intended to affect existing court rules. As explained in detail below, the Draft Access Policy and Draft Administrative Order are marked departures from constitutional and common law traditions of access, and from the cited statutes and the relevant case law. ANALYSIS Established Constitutional, Common Law, and Statutory Principles Create a Right of Public Access to Court Records.
Maryland courts have repeatedly recognized that the public right of access to judicial proceedings in Maryland is grounded in federal and state constitutional provisions. "The right of access by the public to trials in Maryland courts is predicated on the First and Fourteenth Amendments of the Constitution of the United States and Article 40 of the Maryland Declaration of Rights." Maryland v. Cottman Transmissions Systems, Inc., 75 Md. App. 647, 656, 542 A.2d 859, 863 (1988); see Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 76, 465 A.2d 426, 431 (1983) ("there is a right of public access to pretrial hearings in criminal cases and that right is predicated on the First and Fourteenth Amendments and on Article 40 of the Maryland Declaration of Rights"); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-576 (1980) (constitutional right of access is grounded in the First Amendment to the United States Constitution). This constitutional right of access applies to both civil and criminal proceedings,/ and to pre-trial proceedings, such as preliminary hearings and jury selection, as well as to trials. Maryland courts have noted that "public access plays a ‘positive,’ indeed critical, role in ensuring the fairness of our judicial system." Baltimore Sun v. Thanos, 92 Md. App. 227, 234, 607 A.2d 565, 568 (1992). As the Court of Special Appeals explained in Journal Newspapers, Inc. v. Maryland nearly two decades ago: What justifies the "constitutionalization," through application of the First Amendment free speech and press clause, of public access to a trial is the legitimate interest that the public has in observing the workings of its judicial and criminal justice systems, to ensure that they are both fair and effective. That same interest exists with respect to pretrial judicial proceedings. If the policeman has misbehaved and as a result has caused valuable evidence to become forfeit[ed], if a request is made to move the trial, or delay it, or to disqualify the judge, or to set or revoke bail — the public has a compelling interest in these things and thus a right to observe the decisional process. Indeed, in a democratic society, these matters are likely to be of even greater interest than the guilt or innocence of a particular defendant. 54 Md. App. 98, 109, 456 A.2d 963, 969 (emphasis added), aff’d sub. nom Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 465 A.2d 426 (1983) (constitutional right of access applies to pretrial criminal proceedings); see also Patuxent Publ’g Corp. v. Maryland, 48 Md. App. 689, 692, 429 A.2d 554, 556 (1981) (same). The Maryland Court of Special Appeals has joined courts elsewhere in recognizing that the constitutional right of access to judicial proceedings encompasses a right of the public, including the press, to gain access not just to the court proceedings themselves, but also to records relating to public judicial proceedings. Although the Maryland Court of Appeals has not ruled on the question whether there is a constitutional right of access to court records,/ the Maryland Court of Special Appeals has held that such a right exists in both criminal and civil cases. In Thanos, a newspaper was seeking access to a pre-sentence investigation report admitted into evidence under seal in a criminal case. 92 Md. App. at 231, 607 A.2d at 567. After noting that "[a] number of courts have . . . expressly recognized a First Amendment right of access to certain judicial records in criminal cases," the Court of Special Appeals held that the trial court could not deny access to the pre-sentence report without first considering whether a compelling interest in the report’s confidentiality outweighed the constitutional right of access to court records in criminal cases, and without considering alternatives to a broad seal. Id. at 233, 607 A.2d at 568. In Doe v. Shady Grove Adventist Hospital, 89 Md. App. 351, 360, 598 A.2d 507, 511 (1991), the Court of Special Appeals found that the constitutional right of access to court records guaranteed by both the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights applies in civil as well as criminal proceedings. In that civil proceeding, the court allowed the plaintiff to proceed anonymously (as John Doe) while making clear that the court records in that case should not be sealed so as not to "intrude at all on the public’s right of access to court records." Id. at 365, 598 A.2d at 514. Federal courts, including the United States Court of Appeals for the Fourth Circuit (which includes the District of Maryland), have also confirmed that there is a constitutional right of access to court records in both criminal and civil proceedings. See In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986) (First Amendment right of access applies to documents filed in connection with plea hearings and sentencing hearings in criminal cases); Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (First Amendment right of access applies to documents filed in connection with a summary judgment motion in a civil case); Associated Press v. United States Dist. Court for the Cent. Dist. of Calif., 705 F.2d 1143, 1145 (9th Cir. 1983) ("the public and press have a [F]irst [A]mendment right of access to pretrial documents in general"); In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) ("The public’s right of access to judicial records has been characterized as ‘fundamental to a democratic state.’ Recently, we recognized that this presumption is of constitutional magnitude.") (citations omitted). The constitutional right of access to court records has been held to extend not just to court records filed in a particular case, but also to compilations of data drawn from the records of numerous cases. Specifically, in Globe Newspaper Co. v. Fenton, 819 F. Supp. 89 (D. Mass. 1993), the court held that the First Amendment right of access to court records encompassed alphabetized indices to closed criminal cases. In that case, the state court records custodians had declined to allow unrestricted public access to such indices on the basis of a generalized concern for the privacy interests of defendants. See id. at 93. The federal court analogized the indices to a "card catalogue" for the "vast library of volumes" of courthouse papers. Id. at 94. The federal court held that the ban on access to the indices "impose[d] a substantial burden on the ability of the press to provide fully developed criticism of the institutions which administer criminal justice through the Massachusetts state courts," and thus violated the First Amendment. Id. at 96. Although the constitutional right of access to courts and judicial records is not absolute, it may be "abrogated only in unusual circumstances." Stone v. University of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988) (vacating and remanding order to seal entire case record where lower court did not provide notice, reasons for sealing, or opportunity for objection); Thanos, 92 Md. App. at 246-47, 607 A.2d at 574 (vacating and remanding order sealing presentence investigation report). The right may be overcome only by a restriction that serves a compelling state interest and is narrowly tailored to serve that interest. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982); Thanos, 92 Md. App. at 246-47, 607 A.2d at 574; Doe v. Shady Grove Adventist Hospital, 89 Md. App. at 360, 598 A.2d at 511; Hearst Corp. v. Maryland, 60 Md. App. 651, 658, 484 A.2d 292, 294 (1984); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989). Even if (contrary to the foregoing) there were not an independent constitutional right of access to all records of public judicial proceedings, other constitutional precepts would generally prohibit courts from adopting any regime under which some segments of the public are granted access to court records while others are denied access to the very same records. Courts have repeatedly held that, even in circumstances where a particular form of access to governmental proceedings or records is not guaranteed under the First Amendment, it nonetheless violates the First Amendment for the government to pick and choose who may enjoy such access unless such discrimination is necessary to advance a compelling governmental interest. See Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) (although press had no First Amendment right of access to discovery materials protected by a protective order, First Amendment prohibited court from "selectively excluding" newspaper from access after material at issue was made available to health officials and one television station); Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977) (although there is no First Amendment right of access to the White House, grant of access to some members of press requires that access not be denied to other members of the press "arbitrarily or for less than compelling reasons"); American Broadcasting Cos. v. Cuomo, 570 F.2d 1080, 1087 (2d Cir. 1977) (although there was no right of press to attend political candidate’s post-election party, "once there is . . . [access] by some of the media, the First Amendment requires equal access to all of the media"). Other courts have held that discrimination in the provision of access to government records violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See McCoy v. Providence Journal Co., 190 F.2d 760, 765 (1st Cir. 1951) (city official’s withholding of access to tax records from one party while granting it to that party’s competitor "constitutes a denial of equal protection of the laws"); Donrey Media Group v. Ikeda, 959 F. Supp. 1280, 1286 (D. Haw. 1996) (access to government records cannot be selectively administered consistent with equal protection); Quad-City Community News Service, Inc. v. Jebens, 334 F. Supp. 8, 16 (S.D. Iowa 1971) (denial of underground newspaper’s request for access to police department records made available to other requestors violated First Amendment and Equal Protection Clause of the Fourteenth Amendment, regardless of "[w]hether this access is denominated a ‘right’ or a ‘privilege’"). Similarly, even if there were not an independent constitutional right of access to court records, First Amendment principles would nonetheless independently prohibit courts from setting up any system for access to court records that vests court officials with broad and subjective discretion to decide whether to grant a request for access or whether one requestor or type of requestor should be favored over others. The Supreme Court has squarely held that the First Amendment bars any regulatory scheme that vests government officials with wide-ranging discretion to decide who may engage in "expression or conduct associated with expression," even if the First Amendment would not independently guarantee any right to engage in the conduct at issue. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 760 (1988) (striking down regulation granting mayor unbridled discretion to grant or deny licenses to place newspaper dispensing machines on city sidewalks, even though the court assumed it may have been permissible for the city to impose a total ban on such machines). Lower courts have applied this principle in a variety of contexts. See, e.g., United Food & Commercial Worker’s Union v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 359 (6th Cir. 1998) (although state agency is not required to allow advertising on its buses, once such advertising is permitted, approval of advertisements must be made subject to "clear standards guiding the discretion of the public official vested with the authority to enforce the enactment"); Quad-City Community News Service, 334 F. Supp. at 17 (discrimination with respect to access to government records "can only be tolerated when a public official’s discretion is guided by narrow and specific standards"); see also Jakanna Woodworks, Inc. v. Montgomery County, 344 Md. 584, 609-11, 689 A.2d 65, 76-77 (1997) (invalidating ordinance establishing licensing scheme for commercial advertisements on ground that it vested "unfettered discretion" in government official). The reason why unfettered discretion is impermissible and "neutral criteria" are essential in this context is to insure that governmental decisions relating to conduct associated with expression are "not based on the content or viewpoint of the speech" in which the person applying for permission wishes to engage. Plain Dealer, 486 U.S. at 760-61. Absent "neutral criteria," there is a "danger of censorship," which is anathema to the First Amendment. Id. This prohibition of unfettered discretion applies with full force to any regime for regulating access to court records, because obtaining such access clearly is "conduct commonly associated with expression," id. at 759, in the sense that it is a basic prerequisite for enabling the press and the public to report about, discuss, and criticize the activities of the judiciary. Those courts that have not had occasion to address the constitutional right of access to court records, including the Maryland Court of Appeals, have recognized a public right of access to inspect and copy judicial records arising from a longstanding tradition of open records at common law: Throughout our history, the open courtroom has been a fundamental feature of the American judicial system. Basic principles have emerged to guide judicial discretion respecting public access to judicial proceedings. These principles apply as well to the determination of whether to permit access to information contained in court documents because court records often provide important, sometimes the only, bases or explanations for a court's decision. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983); see also Nixon v. Warner Communications Inc., 435 U.S. 589, 597 (1978). The Court of Appeals has traced the tradition of open courts, termed the "legacy of open justice," from its English roots to colonial America where it "became an intrinsic element of early colonial governments." Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 662, 755 A.2d 1130, 1135 (2000) (quoting Richmond Newspapers, 448 U.S. at 590). The Court of Appeals has recently confirmed that in Maryland, the common law does provide a public right of access to court records as well as to the underlying judicial proceedings: "The common law principle of openness is not limited to the trial itself but applies generally to court proceedings and documents." Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. at 661, 755 A.2d at 1134 (emphasis added); see Baltimore Sun Co. v. Colbert, 323 Md. 290, 305, 593 A.2d 224, 231 (1991) ("there is a common law right to inspect and copy judicial records and documents"); Thanos, 92 Md. App. at 233, 607 A.2d at 567. The Court of Special Appeals has explained that "[t]he purpose behind the right of the public and media to attend trials and inspect court records is obvious. It is through the exercise of such a right that the public knows what transpires in its courts." Hearst Corp., 60 Md. App. at 658, 484 A.2d at 295. The common law right of access to court records may be overcome only by a showing that an important competing interest outweighs the public interest in access. See Stone, 855 F.2d at 180; Rushford, 846 F.2d at 253. Of course, all common law principles may also be modified by statute, court rule or order. See Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. at 662, 755 A.2d at 1135. But in Maryland, the General Assembly has actually confirmed and expanded, through statute, the general right of public access to court records. Furthermore, court rules have long permitted public access to court records, including those containing criminal history record information, see Md. Rules 16-308 & 16-503, and there has been no perceived need to modify that practice in the nearly twenty-five years since their promulgation. The Court of Appeals has confirmed the presumption of openness by adopting confidentiality rules only in limited instances involving criminal investigations, Md. Rule 4-642, attorney disciplinary hearings, Md. Rules 16-704 & 16-718, adoption and guardianship, Md. Rule 9-112, and juvenile proceedings, Md. Rule 11-121. These are areas of the law that have traditionally been cloaked with a degree of confidentiality. The Maryland legislature has embraced the constitutional and common law rights of public access to court records through statutory provisions that make clear that records pertaining to public judicial proceedings in Maryland are public records open to public access and scrutiny. A specific statute, Md. Code Ann., Cts. & Jud. Proc. § 2-203 ("Section 2-203"), makes clear that documents filed with clerks’ offices are generally subject to inspection: "Unless otherwise provided by law or order of court, any person may, without charge, inspect, examine, and make memoranda or notes from an index or paper filed with the clerk of a court." In applying this statute, courts have made clear that "[c]ourt files, unless sealed by order of the court, are properly viewable by any person." Beckette v. Maryland, 31 Md. App. 85, 89, 355 A.2d 515, 518 (1976). More generally, all records made or received by the Maryland judiciary are governed by the Maryland Public Information Act ("PIA"). See Md. Code Ann., State Gov’t § 10-611 et seq. The PIA grants all persons broad rights of access to "public records," and the PIA covers all branches of state government, including the judiciary. See Office of the Governor v. Washington Post Co., 360 Md. 520, 536, 759 A.2d 249, 258 (2000) (applying the PIA to the Office of the Governor); A.S. Abell Publ’g Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983) ("the [PIA] provides that the public has the right to inspect the public records of any branch of the State government") (emphasis added) (citation omitted); 68 Md. Op. Att’y Gen. 330 (1983) (determining that a trial transcript is subject to the PIA because it is a written document prepared by "the judicial branch of State government"); J. Joseph Curran, Office of the Maryland Attorney General, Public Information Act Manual 2 (8th ed. 2000) [hereinafter PIA Manual] ("The PIA . . . includes all branches of State government (legislative, judicial, and executive)."). The PIA defines the term "public record" very expansively to include "the original or any copy of any documentary material that . . . is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business." Md. Code Ann., State Gov’t § 10-611(g)(1)(i) (emphasis added). The PIA also explicitly includes within its reach electronic media such as "computerized record[s]," "recording[s]," and "tape[s]." Id. § 10-611(g)(1)(ii). The PIA draws no distinction between computerized records and other types of records, paper or otherwise, that fall within its sweeping definitions. See 81 Md. Op. Att’y Gen. No. 96-016 (May 22, 1996) (determining that computer e-mail messages are "public records"). The public policy of the State of Maryland favoring access to government records is unequivocal. Under the PIA, "[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees." Md. Code Ann., State Gov’t § 10-612(a). The Court of Appeals has repeatedly held that "the provisions of the [PIA] reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government." Fioretti v. Maryland State Bd. of Dental Exam’rs, 351 Md. 66, 73, 716 A.2d 258, 262 (1998) (emphasis added) (internal quotation marks and citation omitted). To carry out that purpose, the PIA requires custodians to "permit a person or governmental unit to inspect any public record at any reasonable time," unless otherwise prohibited by law. Id. § 10-613(a) (emphasis added). Moreover, the PIA requires custodians to facilitate access to public records "with the least cost and least delay to the person or governmental unit that requests the inspection." Id. § 10-612(b). Of particular relevance here, the requestor’s purpose or motive is irrelevant. See Moberly v. Herboldsheimer, 276 Md. 211, 227, 345 A.2d 855, 864 (1975); 71 Md. Op. Att’y Gen. 318 (1986) ("The reason for a particular request for information is irrelevant to the question of whether the information must be disclosed . . . ."). Similarly, the identity of the requestor is irrelevant, except in the limited situations, not applicable to court records, where particular exemptions give special access to persons in interest. See Superintendent v. Henschen, 279 Md. 468, 473 & n.2, 369 A.2d 558, 561 & n.2 (noting that "[t]he general right of inspection is not limited to a ‘person aggrieved’ or ‘person in interest,’" although some of the PIA’s exceptions distinguish between "any person" and a "person in interest"); PIA Manual, supra, at 6 ("[I]n general, . . . a custodian of records may not require . . . a person to say who they are or why they want the records as a prerequisite to responding to a request."); see also id. at 6-7 (discussing specific exemptions in which a "person in interest" has rights greater than "any person" under the PIA). So long as a public record does not fall within one of the PIA’s express statutory exemptions, it must be disclosed to anyone on request, subject only to reasonable regulations enacted to protect the record and to avoid "unnecessary interference" with the custodian’s other work. See Md. Code Ann., State Gov’t § 10-613(b). The PIA generally instructs courts and custodians to construe the statute "in favor of permitting inspection of a public record." Id. § 10-612(b). Accordingly, the Court of Appeals has consistently construed the PIA’s provisions broadly in favor of disclosure, and has narrowly construed any potentially applicable exemptions. See, e.g., Office of the Governor, 360 Md. at 544-45, 759 A.2d at 262-63; Office of the State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 134, 737 A.2d 592, 601 (1999); Kirwan v. Diamondback, 352 Md. 74, 81, 721 A.2d 196, 199 (1998) ("the provisions of the statute ‘must be liberally construed . . . in order to effectuate the Public Information Act’s broad remedial purpose’") (quoting A.S. Abell Publ’g Co., 297 Md. at 32, 464 A.2d at 1071). The PIA reflects the legislative judgment that a general interest in personal privacy does not trump the public’s interest in disclosure of otherwise public documents. As the Court of Appeals has recognized, "the [PIA] does not contain an exemption for . . . ‘unwarranted invasion[s] of privacy.’" See Kirwan, 352 Md. at 89, 721 A.2d at 203. Instead, the Act merely allows a custodian to depart from the normal principle of liberal construction in favor of disclosure in instances where such a construction would result in "an unwarranted invasion of privacy." Md. Code Ann., State Gov’t § 10-612(b). For this rule of construction to come into play, however, a statutory exemption must be available that may be reasonably construed in favor of nondisclosure./ See Kirwan, 352 Md. at 89, 721 A.2d at 203. Thus, this rule of construction may be brought to bear only when a specific exemption is at issue; it cannot provide an independent basis for withholding any public records. Because the PIA permits withholding of records only pursuant to an applicable statutory exemption, a custodian may not deny a request for access on the ground that compliance with the request, either by itself or in combination with other requests, will be administratively burdensome. None of the PIA’s exemptions permits withholding on grounds of administrative burden. Moreover, while the PIA identifies "prevent[ion] [of] unnecessary interference with official business" as one purpose of the "reasonable rules or regulations" that official custodians must adopt to implement the PIA, Md. Code Ann., State Gov’t § 10-613(b), this provision does not provide any basis for not complying with PIA disclosure requirements. In other words, this provision does not state or imply that avoidance of administrative burdens that are necessarily associated with PIA compliance would ever be a valid reason for denying access. Indeed, the basic function of rules and regulations promulgated under Section 10-613(b) is to "govern timely production and inspection of a public record." Id. (emphasis added). Section 10-613(b), therefore, reflects the General Assembly’s fundamental judgment that providing public access to government records, while sometimes burdensome, is itself part and parcel of a government entity’s "official business." That section simply provides for regulations establishing efficient and consistent procedures to minimize any burdens of compliance. Yet another statute — Md. Ann. Code art. 27, § 742 et seq., which established the Criminal Justice Information System ("CJIS") — recognizes that court records in criminal cases ordinarily must be made available to the public. Although this statute restricts dissemination of law enforcement records containing "criminal history record information" to members of the public, it specifically excludes "court records of public judicial proceedings" from the definition of "criminal history record information." See id. § 743(e)(3). The term "court records" is defined by statute to include "all official records maintained by the clerk of a court or other court personnel." Id. § 735(b). By explicitly excluding "court records" from the scope of the CJIS statute, the General Assembly once again indicated its consistent judgment that court records of judicial proceedings should be open to public access and inspection. The distinction between law enforcement records that contain "criminal history record information" and court records is confirmed in the existing court rules on this subject. Rules 16-308 and 16-503, which have been in effect for nearly twenty-five years, permit public access to criminal history record information in court records of public judicial proceedings. These rules, which may only be modified by action of the Court of Appeals, have not produced any disputes discussed in any published Maryland decisions. Presumably, they have served the courts and public well in the intervening years. The Draft Access Policy Would Unlawfully Restrict and Condition Public Access to Court Records. The Draft Access Policy has a laudable purpose: to create consistent and efficient procedures for compliance with the PIA and other existing laws. The Draft Policy is intended to set out "guidelines to supplement the existing laws governing access to public records." Draft Access Policy § I(A). Instead, however, the Draft Policy imposes substantial new restrictions on public access to both civil and criminal court records that do not currently exist in the PIA or other statutes. The Policy also is in conflict with constitutional and common law rights of access. The Draft Policy would infringe on rights of access protected by existing law in the following ways:
Addressing any one of these problems would require extensive changes to the proposed access policy; taken together, these problems call into question the legality of the entire proposal.
The Draft Access Policy’s far-reaching proposed restrictions on access to criminal and civil court records fail to comport with the constitutional principles set out in Section I above. First, the Draft Policy violates First Amendment rights of access to civil and criminal court records. The restrictions that are the most severe, from newspapers’ point of view, are (1) barring the press (and the rest of the general public) from dial-up access to computerized records, as such access is a crucial journalistic tool, relied on by reporters every day; and (2) ending the public’s ability, as of right, to "compilations of data" (i.e., information requests that involve a search of a court database), as this information is crucial to in-depth analysis and evaluation of the workings of the court system in Maryland. The broad application of the Draft Access Policy’s restrictions to all criminal court records is particularly problematic, both because it is criminal records for which the constitutional right of access is most firmly established and because the community has especially strong interests in understanding the role of courts in the criminal justice system. As explained above, the public’s constitutional right to inspect criminal case records has been recognized by the Maryland Court of Special Appeals as well as many courts in other jurisdictions. Thanos, 92 Md. App. at 233-34, 607 A.2d at 568; see also, e.g., In re Washington Post, 807 F.2d at 390; Fenton, 819 F. Supp. at 90 (recognizing that constitutional right of access extends to indices of closed criminal cases). As decisions on this issue have recognized, the ability to inspect records of criminal cases in which key identity and charging information is not already known, along with access to criminal case records in significant quantities, is necessary to allow the press and the public to evaluate the courts and the criminal justice system in general as well as to determine whether criminal laws are being applied fairly and effectively. See Thanos, 92 Md. App at 234, 607 A.2d at 568 ("public access plays a ‘positive,’ indeed critical, role in ensuring the fairness of our judicial system"). To the extent that the Draft Access Policy offers reasons for the restrictions it proposes on access to criminal and civil court records, those reasons fall far short of the compelling governmental interest that the First Amendment to the U.S. Constitution and Article 40 of the Maryland Declaration of Rights require. One primary reason for the proposed restrictions is concern about the administrative burden that public access places on court personnel. See Draft Access Policy §§ I(A), III(B)(2), III(E)(3), III(G)(4). This concern should not be ignored, and is appropriately addressed through the development of more efficient procedures or an increase in or reallocation of resources, but it does not rise to the level of a compelling governmental interest sufficient to justify significant limitations on constitutional rights of public access. See Quad-City Community News Service, 334 F. Supp. at 18 (access to police files restricted to members of the established media for administrative convenience held to violate First Amendment rights of "underground" newspaper to whom access was denied); cf. Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989) (administrative convenience insufficient to sustain racial classification); In re Sealed Case, 199 F.3d 522, 527 (D.C. Cir. 2000) (court’s denial of a request for access to a redacted public docketing of ancillary grand jury proceedings under local court rules must "rest on something more than the administrative burdens"). The "purpose" section of the Draft Policy also makes a vague reference to "increasing" concerns about the privacy of persons involved in public judicial proceedings. Draft Access Policy § I(A). Information in court records is simply not private in nature, and such concerns — particularly when raised at such a general and abstract level — by no means constitute a compelling governmental interest sufficient to justify sweeping limitations on public access. See, e.g., United States v. Jacobson, 785 F. Supp. 563, 568 (E.D. Va. 1992) (finding that closure of courtroom during testimony of parents of children fathered by fertility doctor was not "narrowly tailored to serve the governmental interest" and that potential protection of privacy was "outweighed by the harm to the First Amendment interests at issue"), aff’d, 4 F.3d 987 (4th Cir. 1993); Fenton, 819 F. Supp. at 98 (holding that generalized concerns about defendants’ privacy were not a sufficient basis for denying public access to alphabetical indices of closed criminal case files). Even if there were a compelling governmental interest that could justify one or more of the Draft Policy’s proposed restrictions — and none has been identified — the restrictions would still fail to meet constitutional scrutiny because there is no indication that any of the provisions of the Draft Access Policy have been narrowly tailored to provide the least possible infringement on public access, as is constitutionally required. See Hearst Corp., 60 Md. App. at 658, 484 A.2d at 295; Cottman Transmissions Systems, Inc., 75 Md. App. at 656-657, 542 A.2d at 859. In addition to contravening the First Amendment right of access to court records, the Draft Policy is unconstitutional in two other respects. First, the provisions that would permit or require court officials to discriminate among requests for access based on the "affiliation or association" of each requestor/ and his or her intended use of the requested public records/ would violate both the First Amendment’s prohibition against granting selective access to government records and the Equal Protection Clause of the Fourteenth Amendment. The Draft Policy apparently would have court officials discriminate between favored groups, such as attorneys and "persons engaged in a government activity," and disfavored groups, such as the press and other members of the public, in making access decisions. See Draft Access Policy §§ III(F)(1)(c), III(F)(2). It also would require court officials considering requests for access to distinguish between businesses that require access for "a legitimate business use" and businesses that do not, and between research projects that have the potential for "benefit to a governmental or other public purpose" and those that do not. Id. §§ III(F)(2), III(G)(3)(e). As explained above in Section I, such discrimination on the basis of the affiliation and motivations of the requestor and the content of the speech that he or she intends to disseminate violates the First Amendment and the Equal Protection Clause unless the discrimination is necessary to serve a compelling government interest — an exacting standard that certainly cannot be met here. See supra at 10-11. Second, the expansive and unfettered discretion that court officials would have in making many of the access decisions contemplated by the Draft Policy, especially when combined with provisions requiring requestors to identify their affiliation or association, would independently violate the First Amendment in yet another respect. Under the Draft Policy, court officials would have wide-ranging discretion to decide, for example, whether to permit access to more than ten records per day or whether certain requests involve "large numbers" or "large quantities" of records and therefore can be limited. See Draft Access Policy §§ III(B)(2), III(E)(3). Court officials would also have complete discretion to decide whether to permit any dial-up access (except for attorneys and public agencies) or any access to data or data compilations, taking into account such wholly subjective factors as whether particular uses are "legitimate" and whether the intended use of the data would pose a "potential for abuse or misinterpretation." See id. §§ III(F)(2), III(G)(1), (3). Whether consciously or not, court officials could wield broad and virtually standardless discretion to block access to requestors who have previously expressed, or who are expected to express in the future, views that are critical of the courts and court personnel. It is to avoid precisely this result that the First Amendment prohibits unbridled grants of discretion to government officials with respect to decisions affecting expression or conduct (such as obtaining access to court records) commonly associated with expression. See, e.g., Plain Dealer, 486 U.S. at 756. For many of the same reasons, the Draft Access Policy is inconsistent with common law rights and traditions of public access to court records that are explained in Section I above. Moreover, just as the Draft Policy’s stated concerns about administrative burden and personal privacy fall short of the constitutional "compelling interest" standard, they also fail to qualify as an important competing interest that outweighs the public interest in access. See, e.g., Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. at 664, 755 A.2d at 1136 (holding that asserted privacy interest of plaintiff was insufficient grounds for sealing records of a settlement in a civil action). The proposed restrictions in the Draft Access Policy are also in fundamental conflict with two Maryland statutes. First and foremost, the Draft Policy contradicts the Maryland PIA, the statute that it intends to implement. The Draft Access Policy’s inconsistencies with the expansive rights of access provided under the PIA are fundamental and numerous. First, the Draft Access Policy’s restrictive treatment of access to computerized records — including its declaration that "compilations of data" need not be "create[d]," Draft Access Policy § III(G)(1), and its specification of special non-PIA criteria for determining whether "request[s] for data" should be complied with at all, id. § III(G)(3) — flies in the face of the basic structure of the PIA, which guarantees that all types of documentary material, explicitly including computerized records, are public records that are generally open to public inspection. See Md. Code Ann., State Gov’t § 10-611(g)(1)(ii)(2). Accordingly, there is simply no basis in the PIA for treating computerized records or computerized "data" made or received by the courts any differently than other public records. The Draft Policy’s disfavored treatment of computer records seems to flow, at least in part, from the faulty premise that because a court database is created from data taken from other court records, it is not a public record for purposes of the PIA. But whenever a governmental entity makes any new record, whether it is a paper record or a computer database, that new record is itself a "public record" subject to the PIA. The source of the information contained in the new record is irrelevant. See id. § 10-611(g)(1)(i) (defining "public record" to include "any documentary material that . . . is made by a unit or instrumentality of the State government") (emphasis added). The Draft Policy also wrongly assumes that the PIA does not require custodians of computerized databases to honor requests for specified subsets of information contained within those records. The law does not distinguish between a request for a subset of data contained within a computerized database (for example, a request for all entries relating to cases involving a specific judge, a specific party, or a specific type of crime) and a request for a subset of records contained in a traditional file cabinet full of paper records. In both instances, the PIA requires the custodian to search for the requested material and to produce it. See PIA Manual, supra, at 8 (custodians should be guided by FOIA case law requiring "a search reasonably calculated to uncover all relevant documents"); Ethyl Corp. v. United States EPA, 25 F.3d 1241, 1246 (4th Cir. 1994) (noting that an agency must "conduct[] a search reasonably calculated to uncover all relevant documents" in response to a valid FOIA request) (citations and internal quotation marks omitted). Second, the Draft Access Policy contravenes the PIA by treating the administrative burdens that the courts may bear in complying with some kinds of requests as a key determinant in whether and to what extent those requests should be honored. As discussed in Section I above, administrative burden does not justify non-compliance with PIA disclosure obligations. There is simply no basis in the PIA for affording members of the public access to records only when it is easy for the custodian or for adopting policies that, by either design or effect, will discourage or prohibit requestors from seeking in a convenient, user-friendly manner all of the information that they desire or need. To the contrary, the PIA explicitly requires court officials to permit inspection of "any public record at any reasonable time," with the "least cost and least delay" to the requestor. Md. Code Ann., State Gov’t §§ 10-613(a), 10-612(b). Many provisions of the Draft Access Policy violate this basic principle, including the provisions barring or disfavoring requests for more than ten records on one day, see Draft Access Policy § III(B)(2), requests for "large numbers of records at any one time," id., and requests to receive records via dial-up access, id. § III(F). Third, the multiple provisions of the Draft Access Policy that permit or even require access decisions to be based on the affiliation of a requestor and the intended use of information contained in public records, together with the enormous and essentially unreviewable discretion court officials would have to pick and choose which requests for access to grant based on either no standards or on standards that are highly subjective, are totally contrary to the PIA. The PIA simply does not permit government entities to draw distinctions among different types of requestors, or to take into account a requestor’s motives or planned uses for information in deciding whether to grant access./ See Moberly, 276 Md. at 227, 345 A.2d at 864 ("The Court does not find it necessary to decide motives. If the hospital is a public institution, and the information sought does not come under of the exceptions, the information sought should be made available . . . ."); Mayor & City Council of Baltimore v. Burke, 67 Md. App. 147, 153-54, 506 A.2d 683, 686-87 (1986) (requiring disclosure of records to reporter, even when disclosure would undermine the city’s position in litigation in which it was involved); 71 Md. Op. Att’y Gen. 318 (1986) ("even an improper motive for a request does not excuse from disclosure ‘information otherwise revealable under the Act’") (citation omitted); see also Henschen, 279 Md. at 473, 369 A.2d at 561 ("The general right of inspection is not limited to a ‘person aggrieved’ or ‘person in interest.’"); PIA Manual, supra, at 6 ("The PIA grants a broad right of inspection to ‘any person.’ There is no need for the person to show that he or she is ‘aggrieved’ or a ‘person in interest.’") (citation omitted)./ Fourth, the criteria that the Draft Access Policy identifies for evaluating requests that involve searching a court database (referred to as "compilations of data") have no grounding in any exemption in the PIA. In particular, the requirement that decisions on whether to grant access to such material should turn on criteria such as "the potential for infringement of personal privacy," "the potential for abuse or misinterpretation of the data requested as it relates to its intended use," and "the potential for benefit to a governmental or other purpose," Draft Access Policy § III(G)(3), are simply foreign to the PIA, which requires that access be afforded to any requested public record unless it falls within one of the statute’s limited exemptions. None of these criteria conforms to any of the PIA exemptions./ Fifth, the Draft Access Policy also appears to ignore many of the basic administrative principles embodied in the PIA. The PIA establishes relatively simple procedures for assuring that requestors receive access to public records "with the least cost and least delay" to the requestor, Md. Code Ann., State Gov’t § 10-612(b), and allows custodians to adopt only those regulations necessary "[t]o protect public records and to prevent unnecessary interference with official business," id. § 10-613(b). Yet the Draft Policy would put into place a complicated regulatory regime that would impose significant costs and delays on requestors. It would do so for reasons such as the "increasing computerization" of court records, the "increasing demands" for access to those materials, and "increasing" concerns about privacy, see Draft Access Policy § I(A), that have nothing to do with any statutory bases for regulating access. The Draft Policy also contradicts another Maryland statute — namely Md. Code Ann., Cts. & Jud. Proc. § 2-203, which generally ensures broad public access to all "ind[ices] [and] paper[s] filed with the clerk of a court." The Draft Policy’s inconsistencies with Section 2-203 are at least threefold. First, nothing in Section 2-203 appears to countenance the arbitrary restriction on requests for access to more than ten records per day and the flat prohibition on access to "large numbers of records at any one time." See Draft Access Policy § III(B)(2). Second, the Draft Access Policy’s disfavored treatment of access to computerized records as compared to paper records is out of step with the explicit requirement of Section 2-203 that access be provided not just to court "papers," but also to court "ind[ices]." Indeed, much, if not all, of the computerized records that Maryland courts maintain are simply modern-day equivalents and extensions of the non-electronic indices to which the public has for years enjoyed access under Section 2-203. Third, the discrimination between and among different sorts of requestors that the Draft Access Policy contemplates and demands is wholly inconsistent with Section 2-203’s clear and explicit extension of access rights to "any person." The Draft Administrative Order Would Unlawfully Prohibit and Restrict Access to Court Records of Criminal Proceedings. The Draft Administrative Order would go even further than the Draft Access Policy in restricting access to records of criminal judicial proceedings. The Draft Order would end dial-up access to computerized records for nearly all segments of the public, including the press, and hamper anyone not armed with either (a) a case number or (b) the name of the defendant, the nature of the charge, and the approximate date of the charge from gaining access to any type of court record in criminal cases. Draft Administrative Order ¶¶ 1, 2. In addition, the Draft Administrative Order would prohibit dissemination of all "criminal history record information" that identifies an individual and that is maintained by the courts in computerized, "centrally stored criminal case records." If that information does not identify an individual, it may be released, but only for "legitimate research, evaluation or statistical activities," for which the released information is "necessary." Id. ¶ 4. These proposed restrictions cannot be squared with constitutional, common law, and statutory guarantees that ensure public access to records of criminal proceedings held in open court. In proposing severe restrictions on access to "[c]riminal history record information" contained in "computerized, centrally stored criminal case records maintained by the Judicial Branch," Draft Order ¶ 4, the Draft Administrative Order appears to rely on a number of legal authorities, including the statute establishing the CJIS, two provisions of the PIA, and a decision of the United States Supreme Court in a federal FOIA case. Scrutiny of these authorities, however, reveals that they do not support the restrictions on access that the Draft Administrative Order would propose. The essential reason for the Draft Order appears to be the belief that the statute establishing the CJIS, see Md. Ann. Code art. 27, § 742 et seq., requires the Court of Appeals to prohibit disclosure of criminal history information located in court records in the court’s centralized data base (known as the Judicial Information System or "JIS"). This belief is incorrect. The CJIS statute, which strictly limits dissemination of and access to "criminal record history information" maintained in the CJIS records system,/ does not support the imposition of any restrictions on access to computerized records created and maintained by courts. The simple reason for this is that the CJIS statute’s definition of "criminal record history information" explicitly excludes "court records of public judicial proceedings." See id. § 743(e)(3). Accordingly, the CJIS statute may not be read as a basis for limiting access to records of public judicial proceedings contained in computerized, centrally stored criminal case records generated by Maryland courts, even though much of the same information from criminal court proceedings in Maryland may also be recorded in the CJIS records system./ In so providing, the General Assembly acted in keeping with longstanding constitutional, common law, and statutory policies that recognize the importance of public access to court records. Based on the legislature’s clear directive that the criminal history information in court records should remain open, an Administrative Order to the contrary should not be issued. The current treatment of criminal history information in court records, embodied in Rules 16-308 and 16-503 (discussed in Section I above), has served the public well for nearly twenty-five years, and there is no reason for the Court, through the Draft Order, to radically depart from it. The preamble to the Draft Order implies that the centralization and computerization of court records might somehow bring them within the ban on dissemination of "criminal history record information" found in the CJIS statute. But this implication runs contrary to the statutory language, which makes clear that these records are viewed as "court records" and therefore are outside the scope of the CJIS statute, regardless of their computerized form. This point is confirmed by Maryland’s separate criminal records statute, which recognizes that the term "court records" includes "all official records maintained by the clerk of a court or other court personnel," including "indices" and "docket entries." Md. Ann. Code art. 27, § 735 (emphasis added)./ The electronic databases and indices created by courts, and other computerized court records of public judicial criminal proceedings, are therefore not subject to the restrictions of the CJIS statute./ The other statute that the Draft Administrative Order purports to rely on is the PIA, and that reliance is also misplaced. The preamble to the Draft Order makes clear that the Order is intended to be consistent with the PIA and to provide the access required by that law. See Draft Order at 1 (fourth and fifth "whereas" clauses)./ The Draft Order itself, however, contradicts the PIA in two important respects. First, the preamble apparently relies on the mistaken notion that disclosure of criminal history record information from the court’s computerized records constitutes an "unwarranted invasion of privacy" and therefore that such information should be exempt from disclosure. See Draft Order at 1 (fifth "whereas" clause). As discussed above at page 17-18, the PIA allows denial of access only if one of its enumerated exemptions applies, and there is no exemption from disclosure on grounds of invasion of privacy./ See Kirwan, 352 Md. at 89, 721 A.2d at 203; Md. Code Ann., State Gov’t § 10-612(b). Second, in its reliance upon the purpose of a request for criminal history record information from court records, the preamble conflicts with the PIA. The preamble stresses a distinction between requests that seek information about court operations and performance and those that seek information about individuals, which the government "happens to be storing." See Draft Order at 1 (tenth "whereas" clause). The PIA does not distinguish among requests in this manner. Moreover, this distinction ignores the fundamental concept that the public has a strong interest in learning the substance of what has happened in particular court proceedings, as well as in monitoring the court’s performance of its duties./ Finally, in an analogous fashion, the Draft Administrative Order incorrectly relies on the decision of the U.S. Supreme Court in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), even though that case is not relevant to the issue of public access to court records addressed by the Draft Order. The most important differences between that case and the Draft Order are:
In light of these material distinctions, the Reporters Committee case provides no legal authority that would permit, much less justify, the Draft Administrative Order’s proposed draconian limits on access to criminal case records. B. Constitutional Infirmities In addition to all of the foregoing problems, the restrictions that the Draft Administrative Order would place on access to all types of criminal case records, including both paper files and computerized records, would directly infringe the public’s constitutional right to inspect such records, a right that has been recognized in Maryland and elsewhere and that serves important societal interests. See supra at 7-9. Under the Draft Administrative Order, it would be difficult or impossible for a reporter, researcher, or other member of the public to obtain, for example, all records of criminal cases heard by a particular judge during a specified period, or all case records pertaining to a new or controversial criminal statute, even though it is only by examining patterns and trends in such cases that a thoughtful analysis of judicial activities in the criminal area may be possible. The proposal also would cut off the press and most of the rest of the public from access to computerized records in criminal cases, even though such access is crucial for substantial analysis, especially as courts become increasingly automated and many court records appear primarily if not exclusively in electronic form. As discussed above, concerns about administrative burden or the privacy of individuals involved in public court proceedings do not rise to the level of a compelling interest sufficient to justify these onerous restrictions on the exercise of the constitutional right of access. Likewise, as with the Draft Access Policy, there has been no showing that the Draft Order’s restrictions are narrowly tailored to meet these (or any other) governmental interests. Like the Draft Access Policy, the Draft Administrative Order also suffers from other independent constitutional defects because it would discriminate among different categories of requestors without a compelling reason to do so and because it would vest court officials with essentially standardless discretion in making certain access decisions. The Draft Order discriminates among requestors in providing that attorneys may obtain dial-up access and other forms of "[d]irect access to criminal case records by electronic means" but that all other segments of the public, including the press, may not obtain such access. Draft Order ¶ 1. This is the very sort of selective access that may not withstand scrutiny under the First Amendment and the Equal Protection Clause unless the discrimination is narrowly tailored to serve a compelling government interest, a standard that is not met here. See supra at 10-11. The Draft Order vests court officials with unbridled discretion to determine which requestors may obtain access to "centrally stored criminal case records maintained by the Judicial Branch" based on whether the requestor is, in the eyes of the official, "engaged in legitimate research, evaluation, or statistical activities." Draft Order ¶ 4. This wholly subjective, open-ended, and undefined standard is the antithesis of the "neutral criteria" that the First Amendment demands in any regulatory scheme directed at expression or conduct associated with expression. Plain Dealer, 486 U.S. at 760. Even if consistently applied with the utmost good faith, this provision would necessarily entail exactly the sorts of subjective, content-based assessments of a requestor’s viewpoint or intended speech that the First Amendment condemns. See supra at 11-12. C. Conflicts with the Common Law Right of Access The severe restrictions on access to criminal case records set forth in the Draft Administrative Order are also incompatible with the common law right of access to court records in force in Maryland. The proposed restrictions appear to ignore the public’s common law right not just to inspect official records of cases with which the requestor is already familiar (and thus would already know the case number or other key identifying information) but to inspect public records in general to gain an understanding of the operation and performance of governmental bodies that exist to serve the public. See Hearst Corp., 60 Md. App. at 659, 484 A.2d at 295 ("The purpose behind the right of the public and media to attend trials and inspect court records is obvious. It is through the exercise of such a right that the public knows what transpires in its courts."). Nor does it comport with the common law right of access that extends to all members of the public to allow court officials to pick and choose among requests for access to records based on the identity of the requestor and his or her intended use of any information discovered. CONCLUSION The Draft Access Policy and Draft Administrative Order being considered by the Ad Hoc Committee would create extensive and selective restrictions on the right of public access to records of judicial proceedings guaranteed by federal and state constitutional provisions, Maryland statutes, and the common law. The proposals are not justified, much less required, by federal or State law; to the contrary, they would violate the principle of open and undifferentiated access to court records long recognized and applied by the Maryland courts themselves. |
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