Recent legislation proposed by a Maryland judiciary panel targets a “loophole” in the state’s electronic court records system that allows attorneys to indiscriminately keep court filings hidden from the public. State Senator Jill Carter sponsored the bill in an effort to provide transparency and allow judges, rather than prosecution or defense attorneys, to decide what court documents should or should not be publicly accessible.
This loophole came to light during a case involving the murder of five Capital Gazette journalists, when the Gazette found that nearly 70% of court documents filed in the case were being held from the public. These documents were closed with no oversight or public notice, and were closed with little more than the click of a mouse by both prosecutors and defense attorneys. This is a feature of the judiciary system’s Maryland Electronic Courts, which allows court officials to make a document secret with little need for authorizations.
If an attorney wants to keep a record secret and makes this request by paper, they must obtain an order from a judge, which requires much more notice and oversight. However, this electronic loophole likely appeared with the rollout of the Maryland Electronic Courts (MDEC) system – which is not yet available in Baltimore City, Montgomery and Prince George’s counties – and can allow attorneys to make a filing confidential nearly immediately.
What experts call the “confidential button” has left even the most experienced lawyers unsure of when to use it, and has moved discretion of what information should be kept secret from judges over to attorneys.
Currently, there are rules and guidelines in place for use of this button. Attorneys should click “confidential” when filing documents that include personal information like Social Security numbers, medical records and bank account information. Once documents are marked confidential, attorneys must file a redacted version for the public.
However, these rules aren’t always followed, and some attorneys use the confidential button indiscriminately. The judiciary panel sent attorneys an email warning in 2017, reading in part, “Recently, some filers have been designating entire documents as being confidential without any supporting rule or statute.”
The proposed legislation looks to eliminate the confidential button and replace it with a detailed form. This form would require the attorney to select the reason or category the documents must remain confidential (i.e., juvenile or guardianship cases, tax returns, etc.). The attorney will then submit their motion to seal along with a proposed order to a judge, and the county clerk will put a temporary seal on the court record until the judge decides (which must happen within five days).
If you have any questions about criminal charges or your own court records, the attorneys at Carey Law Office can help. Our knowledgeable legal team offers experienced representation and guidance right when you need it. For a consultation, please call 301-464-2500 or use our contact form to schedule an appointment. We have offices in Bowie and Crofton.
My name is Joseph Carey, and I founded Carey Law Office 37 years ago. Since that day, the firm has helped people throughout the state get their lives back on track. We understand that there is almost always an underlying reason for people’s actions, and that your life shouldn’t end because you made a mistake. Learn More
