Admin. Off. of the Courts v. Abell Fnd.

Administrative Office of the Courts, et al. v. Abell Foundation No. 48, September Term 2021 Maryland Public Information Act – Rules on Access to Court Records – Administrative Records – Code Key for Public Access Database. An important common law principle provides that court proceedings and records are presumptively open to the public. In the Maryland Public Information Act (“PIA”), the General Assembly has established a policy that public records that are clearly disclosable should be made available for public inspection without unnecessary cost or delay. The Court of Appeals has adopted rules governing access to judicial records, including case records and administrative records, that reflect the longstanding principle of the openness of case records and generally treat administrative records in a way similar to the treatment of Executive Branch records under the PIA.

Consistent with the principle of openness of case records and the policy of ready public access to records that are clearly disclosable, the Maryland Judiciary has developed an online database known as Case Search that makes available to the public basic information about filings and proceedings in cases in Maryland courts. While the identity of the judge who presided in a case or decided a matter – which is clearly disclosable under the PIA and Access Rules – appears generally in records of case events in Case Search, the names of judges on the District Court in Baltimore City are indicated only by an alphanumeric code. The code key that matches the alphanumeric codes to judges on that court is disclosable in response to a public records request and is not exempt from disclosure under an exception for certain administrative records. Circuit Court for Baltimore City IN THE COURT OF APPEALS Case No. 24-C-18-005684 Argument: April 4, 2022 OF MARYLAND No. 48 September Term, 2021 ADMINISTRATIVE OFFICE OF THE COURTS, ET AL.

V. ABELL FOUNDATION *Getty, C.J., Watts Hotten Booth Biran, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) McDonald, Robert N. (Senior Judge, Specially Assigned), JJ. Opinion by McDonald, J. Hotten and Biran, JJ., dissent. Filed: July 28, 2022 *Getty, C.J., now a Senior Judge, participated in the hearing and conference of Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. this case while an active member of this Court.

After being recalled pursuant to 2022-08-15 11:18-04:00 Maryland Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk One who attends a major league baseball game can generally know the names of the players, as they are printed on the backs of their uniforms. One team is an exception to this general rule.1 In that case, one must buy a scorecard that contains a key that relates the number on a player’s uniform to the player’s name. An analogous situation exists for one who accesses information about Maryland judicial proceedings reported in an online database known as Case Search.

That database, which is overseen by Petitioner Administrative Office of the Courts (“the AOC”), provides ready and convenient public access to information about court proceedings and records that are indisputably open to the public. For cases in many courts, the judge who presided over the particular proceeding is identified in Case Search. However, for cases in the District Court sitting in Baltimore City, the judge is identified only by an alphanumeric code. The clerks who enter the information from paper records into the digital database have a code key – the equivalent of a baseball scorecard – that assigns each judge a code.

However, that code key does not appear in Case Search – or apparently anywhere else that is accessible to the public. One who accesses the report of a particular proceeding in that court on Case Search sees only the code for the judge. 1 The New York Yankees do not print the names of players on the backs of jerseys. The Boston Red Sox are a partial exception: no names appear on the backs of jerseys worn in Boston; names appear on the jerseys worn when the team plays elsewhere. In July 2018, Respondent Abell Foundation (“Abell”) requested a copy of the code key from the AOC under the Maryland Public Information Act.

The AOC declined to provide that document, citing a Maryland Rule that states an exception to disclosure for certain types of “administrative records.” This litigation ensued. Everyone agrees that the information in the code key sought by Abell was not, and is not, confidential and is available elsewhere. The name of a judge who presided at a particular proceeding in the District Court is publicly available in paper or electronic files at the courthouse; the alphanumeric code associated with that judge appears in the Case Search entry for the proceeding. One who is willing to both visit the courthouse and access Case Search online can associate the two.

This case concerns whether the record containing the code key itself falls under the exception from public access in the Maryland Rules cited by the AOC. The Circuit Court and the Court of Special Appeals concluded that the exception did not apply to the code key. We agree. Every version of the Maryland Rules governing access to court records – as we shall see, those rules have been revised several times over the last two decades, even after this controversy arose – has begun from the principle that a judicial record relating to court proceedings is presumed to be open to inspection by a person who asks for it unless shielding or sealing it is necessary to protect legitimate privacy rights or security.

That premise reflects the common law principle that judicial proceedings, records, and documents are open to public view unless a statute, rule, or decision by this Court provides otherwise. 2 I Background A. Public Access to Judicial Records 1. Traditional Openness of Court Records There is a longstanding tradition of access to court proceedings and records under the common law in Maryland, and in the United States generally. See Baltimore Sun Co. v. Mayor & City Council, 359 Md. 653, 660 (2000) (holding that sealing order violated “common law principle of openness regarding public access to court proceedings and records”); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99 (1978). In particular, “there is a common law right to inspect and copy judicial records and documents.” Baltimore Sun Co. v. Colbert, 323 Md. 290, 305 (1991).

The traditional openness of court records is based in part on “the citizen’s desire to keep a watchful eye on the workings of public agencies.” Nixon, 435 U.S. at 598 . There is also the more general notion that records of court proceedings are “public property” for which “[t]here is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Mayor & City Council, 359 Md. at 663 (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). The principle of public access to court proceedings and records is often contrasted with the secretive practices attributed to the Star Chamber, a court created by the Tudor kings of England that has been associated with abusive and overbearing prosecutorial 3 practices, compelled testimony from criminal defendants, and religious persecution. E.g., Tharp v. State, 362 Md. 77 , 93-94 & n.9 (2000); Carter v. State, 356 Md. 207, 214-18 (1999); see also Frank Reibli, The Spectre of Star Chamber: The Role of an Ancient English Tribunal in the Supreme Court’s Self-Incrimination Jurisprudence, 29 Hastings Const.

L.Q. 807 (2002) (arguing that the Star Chamber did not operate differently from most courts of its day). The traditional principle that court proceedings and records are open to the public is, of course, subject to exceptions such as “where court files might have become a vehicle for improper purposes.” Nixon, 435 U.S. at 598 (referring to disclosure of private details in a divorce case or business information that might harm an entity’s competitive standing). 2. Maryland Public Information Act The Maryland Public Information Act (“PIA”), codified at Maryland Code, General Provisions Article (“GP”), §4-101 et seq., generally governs access to public records of “units and instrumentalities” of the State, including the Judiciary.2 For purposes of the PIA, a “public record” encompasses “documentary material … made … or received by the unit or instrumentality in connection with the transaction of public business….” GP §4- 101(k)(1). The PIA provides a broad right of access to public records without unnecessary cost or delay.

GP §4-103 (right of access to information “about the affairs of government 2 The PIA was originally enacted in 1970. Chapter 698, Laws of Maryland 1970. Like other public records laws enacted around the country during that era, it was intended to expand public access to government records. See Office of the Attorney General, Public Information Act Manual (2021) at 1, available at https://perma.cc/BJF3-D3FD. 4 and the official acts of public officials” with the “least cost and least delay” unless there would be an “unwarranted invasion of privacy”).

The PIA recognizes various exceptions to the general right of access to public records. Some of those exceptions are mandatory – that is, the custodian of the record is forbidden from disclosing the record.3 Other exceptions are discretionary or conditional – in the sense that the custodian must exercise judgment whether specific records or information satisfy a condition set forth in the statute for being withheld from disclosure.4 In delineating access to public records, the PIA defers to other law.5 One category of other law to which the PIA explicitly defers is “rules adopted by the Court of Appeals.” GP §4-301(a)(2)(iii) (providing generally that “a custodian shall deny inspection of a public record” when the inspection “would be contrary to: … the rules adopted by the Court of Appeals”). Such deference is consistent with the constitutional authority of the Court of Appeals to adopt “rules and regulations … concerning the … administration of [the courts], which shall have the force of law until rescinded, changed or modified by the Court 3 E.g., GP §4-305 (mandatory denial for records “that relate to the adoption of an individual”); GP §4-311 (mandatory denial, with certain exceptions, for a “personnel record of an individual”). 4 E.g., GP §4-345 (custodian of examination information relating to licenses or academic matters “may deny inspection” of test questions and scoring keys); GP §4-351 (custodian of record of law enforcement investigation “may deny inspection” in certain circumstances). 5 See, e.g., GP §4-301(a)(2) (custodian of record to deny access if “inspection would be contrary” to various categories of laws); GP §4-304 (inspection of certain records to be denied “[u]nless otherwise provided by law” – i.e., inspection to be allowed if other law so provides). 5 of Appeals or otherwise by law.” Maryland Constitution, Article IV, §18(a); see Murphy v. Liberty Mutual Insurance Co., 478 Md. 333, 341-42 (2022). Thus, Maryland Rules concerning whether a Judiciary record is accessible would supersede anything in the PIA that would appear to provide to the contrary.6 If a custodian of a public record denies access to the record, the PIA provides that the person asking to inspect the record may pursue judicial review of that decision in a circuit court.

GP §4-362. 3. Maryland Rules on Access to Court Records This Court has adopted rules governing access to court records. Maryland Rules 16-901 et seq. (“Access Rules”).

As the PIA acknowledges, the Access Rules govern a decision by a custodian of judicial records whether to allow access to particular public records. The Access Rules have undergone a number of revisions since their initial adoption in 2004.7 One of the peculiarities of this case is that the Access Rules not only have been amended and re-codified several times over the past 18 years, but also have been re- codified and revised in the short period of time since this case began. Pertinent to this case is the version of the rules that existed as of July 2018, when Abell submitted the records request that resulted in this case. Accordingly, unless otherwise indicated, all references 6 We need not, and do not, decide whether the Maryland Rules may constitutionally supersede a statutory remedy provided under the PIA. 7 See Part II.B.3 of this opinion. 6 to the Access Rules in this opinion are to the rules in effect at that time.

We shall do our best to acknowledge the later developments by footnote or otherwise, but the reader is forewarned that the application of this decision in the future may require some analysis of those developments. As of July 2018, former Maryland Rule 16-901(a) provided that, “[e]xcept as expressly provided or limited by other Rules, the Rules in this Chapter govern public access to judicial records[.]” At that time, former Maryland Rule 16-903 stated both the overall intent of the Access Rules “to provide public access to judicial records while protecting the legitimate security and privacy rights of litigants and others who are the subject of those records,” and the presumption that judicial records are “open to the public for inspection.” Former Maryland Rule 16-903(a), (b).8 Former Maryland Rule 16-902 classified the records held by the Judicial Branch into five categories – case records, administrative records, business license records, notice records, and records of certain court-related agencies. Former Maryland Rule 16-902(h). As pertinent here, “case record” was defined broadly to include “all or any portion” of a record, whether in paper, electronic, or other format “that is made, entered, filed, or 8 The presumption is now stated in current Maryland Rule 16-904 (“Judicial records are presumed to be open to the public for inspection”), and the overall intent of the Access Rules is now stated in current Maryland Rule 16-902(b) (“The intent of this Chapter is to (1) adopt comprehensive principles ... that will maintain the traditional openness of judicial records, subject only to such shielding or sealing that is necessary to protect supervening rights of privacy, safety, and security ....”). 7 maintained by the clerk of a court in connection with an action or proceeding.” Former Maryland Rule 16-902(c).

The rule defined an “administrative record,” in relevant part, as a record that “is not a case record” and that “pertains to the administration of a court, a judicial agency, or the judicial system of the State.” Former Maryland Rule 16-902(a)(1). The rule then listed examples of such records. Former Maryland Rule 16-902(a)(2).9 9 Those examples included the following: (A) a rule adopted by a court pursuant to Rule 1-102; (B) an administrative order, policy, or directive that governs the operation of a court or judicial agency; (C) an analysis or report, even if derived from judicial records, that is: (i) prepared by or for a court or judicial agency; (ii) used by the court or judicial agency for purposes of judicial administration; and (iii) not filed, and not required to be filed, with the clerk of a court. (D) judicial education materials prepared by, for, or on behalf of a unit of the Maryland Judiciary for use by Maryland judges, magistrates, or other judicial personnel; (E) a jury plan adopted by a court; (F) a case management plan adopted by a court; (G) a continuity of operations plan; (H) an electronic filing plan adopted by a court; (I) an administrative order issued by the Chief Judge of the Court of Appeals pursuant to Rule 16-903; (J) policies, procedures, and plans adopted or approved by the State Court Administrator, the Court of Appeals, or the Chief Judge of that Court pursuant to a Maryland Rule or a statute; and (K) judicial or other professional work product, including drafts of documents, notes, and memoranda prepared by a judge or other Judicial Branch personnel at the direction of a judge or other judicial official and intended for use in the preparation of a decision, order, recommendation, or opinion. 8 The rules set forth, for each category of record, the bases on which a custodian of such records was required, or had discretion, to deny inspection of a record.

The exceptions to disclosure for case records adopted in some respects, and elaborated in other respects, the exceptions from disclosure under the PIA. Former Maryland Rules 16-906 through 16- 908. The exceptions to disclosure related to administrative records also adopted exceptions similar to those set forth in the PIA, and added other exceptions peculiar to the Judiciary. Former Maryland Rule 16-905.

In particular, former Maryland Rule 16-905(c) provided: “Except as otherwise provided by the [Access Rules], the right to inspect administrative and business license records is governed by the applicable provisions of [the PIA].” Former Maryland Rule 16-905 then gave specific instructions as to the disclosure of special judicial unit records, jury selection records, and personnel records, and, in two parts of section (f), judicial work product and judicial education materials. See former Maryland Rule 16-905(b) - (f)(2). Particularly pertinent to this case is the third subsection of former Maryland Rule 16-905(f), which provided that a custodian “shall” deny inspection of: (3) an administrative record that is: (a) Prepared by or for a judge or other judicial personnel; (b) Either (i) purely administrative in nature but not a local rule, policy, or directive that governs the operation of the court or (ii) a draft of a document Former Maryland Rule 16-902(a)(2). In a somewhat amended form, these examples now appear in current Maryland Rule 16-903(b)(2). 9 intended for consideration by the author or others and not intended to be final in its existing form; and (c) Not filed with the clerk and not required to be filed with the clerk.

Former Maryland Rule 16-905(f)(3). For ease of reference, in this opinion we shall refer to this mandatory exception to disclosure as “subsection (f)(3).”10 B. Case Search The Maryland Judiciary website describes Maryland Judiciary Case Search – generally known simply as “Case Search” – as “the primary way that the public may search for records of court cases.”11 It is an online database that allows a member of the public to look up information about civil and criminal cases in Maryland trial and appellate courts. The AOC manages Case Search. Case Search does not contain, and is not a means of accessing, the pleadings, papers, orders, and other documents filed in a case.

The Judiciary provides access to those records via a database that a member of the public may access at the computer terminals provided for that purpose at a courthouse in any county. Rather, Case Search provides a summary of a case’s history that consists of a list of case events and filings, denominated in some instances by abbreviations and codes, and 10 The same exception, in the same language, is now located in current Maryland Rule 16-913(d). 11 See https://mdcourts.gov/legalhelp/courtrecords (“[Case Search] is the primary way that the public may search for records of court cases. The information in Case Search is a summary of what is contained in the official case file. Case Search is a good way to get some general information about a case such as the case number, dates, and type of case.”).

Also available at https://perma.cc/2YQW-EBX5. 10 the identities of the parties, attorneys, and, in many instances, the judge who presided over or decided the matter. Cases may be found through searches based on the case number or on the names of parties or attorneys. Searches can be refined to some extent by time period, jurisdiction, and type of case. The FAQs on the Case Search webpage explain various components of the entries and abbreviations in those entries.

For example, for a criminal case, INIT denotes an initial appearance and BALR denotes a bail review proceeding.12 Documents posted on the webpage provide translations for various “event codes” for different types of cases. A review of the Case Search FAQs and random case histories suggests that use of codes in the database in 2018 was not always consistent. An example given in the FAQs indicates that a four-digit code denotes a “commissioner/judge id#.”13 However, it appears that a circuit court judge presiding over a particular case event is identified by name, not code. It also appears that, although the District Court is a unified court system, the District Court clerks did not have a uniform practice as to whether a name or a code was entered as to each event in which a judge played a role.14 For entries relating to cases in the District 12 See https://perma.cc/9JCE-ECZH. 13 As we shall see, the record in this case indicates that District Court judges are each assigned a three-digit alphanumeric code.

It is possible that the four-digit code in the FAQ example denoted a commissioner rather than a District Court judge. 14 The fact that the practices varied among various jurisdictions in 2018 is illustrated by the variety of formats in which case histories were entered, the varying contents of the entries, and the list, on the Case Search FAQs page, of the different years for which the records from each jurisdiction can be searched. 11 Court sitting in Baltimore City, the name of the judge did not appear; instead, a code might appear for some, but not all, events in which a judge would have presided or issued a decision. The records that are publicly available at a courthouse generally show the name of a judge associated with a case – for example, in a criminal case, the name of a judge who presided over events such as a bail review, a trial, or a sentencing proceeding. The identity of a District Court judge identified only by a code in Case Search, or not identified at all in Case Search, can thus be ascertained by consulting the paper or digital records available at a courthouse. The Access Rules, as they existed in July 2018, did not directly classify Case Search or related records into one of the five categories of judicial records.

However, the definition of “remote access” stated that “[r]emote access to case records means access through the Case Search program operated by the [AOC].” Former Maryland Rule 16- 902(k)(2) (emphasis added).15 Thus, of the five categories of records defined in the Access Rules, the category most relevant to Case Search entries would appear to be “case record,” as Case Search summarizes and reports filings and proceedings in court. 15 That rule was later re-codified as current Maryland Rule 16-903(a)(2)(B) and amended to include a reference to MDEC (the Maryland Electronic Courts system), as well as Case Search. 12 C. Facts and Proceedings 1. Abell Requests a Copy of the Code Key On July 20, 2018, Abell sent the Public Information Officer of the AOC a written request for the “list of unique identifiers assigned to judges serving in the District Court [in] Baltimore City” that were “used to identify individual district court judges in the Maryland Judiciary Case Search Database.” Abell stated that it was seeking the list “[u]nder the Maryland Public Information Act [.]”16 We shall refer to the record sought by Abell as the “code key” as it would provide the key to the list of codes in Case Search for identifying a judge who presided at a proceeding in the District Court in Baltimore City. 2. The AOC Denies Abell’s Records Access Request On July 25, 2018, the AOC’s Assistant Administrator for Government Relations and Public Affairs denied the request. Her letter explained that the Maryland Rules “primarily” governed the request, and that the PIA would apply “to the extent it is expressly adopted by and consistent with the Access Rules.” She then explained that “[a]ny unique identifier assigned to an individual judge” would be considered an “administrative record” under then-Maryland Rule 16-902 and that the disclosure of the record was therefore subject to the mandatory exclusions for certain administrative records stated in then- Maryland Rule 16-905 – specifically, in subsection (f)(3) of that rule.

She advised Abell 16 In its brief to us, Abell states that it made its request for the code key as a result of an instance in which it was looking up the disposition of a specific case in the District Court and could not determine the identity of the judge who decided that case. Abell has not specified the case in question. 13 that it could seek judicial review of her decision pursuant to GP §4-362, the judicial review provision of the PIA. 3. Abell Seeks Judicial Review of the Denial In October 2018, Abell sought judicial review of the AOC’s denial of its records request by filing suit under GP §4-362 in the Circuit Court for Baltimore City. Abell amended its complaint in May 2019.

The AOC answered the amended complaint and filed a motion for summary judgment several months later.17 Abell filed a cross-motion for summary judgment, which the AOC opposed. In support of its opposition to Abell’s motion, the AOC submitted an affidavit by Polly Harding, the Director of the District Court’s Administrative Services Department. In that affidavit, Ms. Harding stated that, when a new District Court judge is appointed, Ms. Harding or staff in her department assigns to that judge a “unique three-digit alphanumeric code” that clerical staff then use when entering information into the District Court’s mainframe system. She described that system as an “electronic legacy case management system” that is being used by the District Court in Baltimore City until it transitions to MDEC, the statewide electronic filing and case management system.

Ms. Harding further stated that the alphanumeric code identifiers, which had been in use “before the advent of Case Search,” are “placed into a mainframe edit table” 17 In addition to the AOC, Abell also named as defendants certain AOC officials in their official capacities. The Circuit Court granted motions to dismiss as to the individual defendants. Several other motions, not pertinent to the issue before us, were filed and resolved in the Circuit Court. 14 maintained by her unit and that she was the custodian of the “edit table.” Apparently to relate this code key to the exception for certain administrative records in subsection (f)(3) of the Access Rules, she stated that the edit table “is maintained purely for administrative purposes”; “is not … filed with the Clerk”; is used to enter docket events “efficiently” into the mainframe system; “in part enables the mainframe system to account for judges that share the same last name”; and “is not a local rule, policy, or directive.” It is not clear from Ms. Harding’s affidavit whether the “edit table” encompasses other information beside a code key for the alphanumeric codes identifying judges.18 Neither party submitted any other affidavits or other evidence, although they argued various points based on information on the Case Search webpage. 4. The Circuit Court Awards Summary Judgment in Favor of Abell After conducting a hearing on pending motions, the Circuit Court granted Abell’s motion for summary judgment on October 30, 2019.

In its memorandum opinion, the court stated preliminarily that the “[r]ecords of the Judiciary … are subject to the PIA,” but that the PIA in turn prohibits disclosure if public inspection would be “contrary to” the Maryland Rules. Next, the court determined that the “edit table” was an “administrative record” under then-Maryland Rule 16-902(a)(1). In the Circuit Court’s view, the only question was whether the AOC had correctly determined that this code key satisfied the 18 The AOC did not submit a copy of the “edit table,” either with Ms. Harding’s affidavit or in camera for the Circuit Court, and apparently no request was made that it do so. The edit table to which she referred does not otherwise appear in the record of this case. 15 three prongs of the exception related to administrative records set forth in subsection (f)(3).19 The court found that the edit table easily met both the first prong – that the record had been prepared by “a judge or other judicial personnel” – and the third prong – that the record was not required to be, and had not been, filed with the clerk.

As to the second prong, the court concluded that the matter turned, in the words of the rule, on whether the record in question was “purely administrative in nature but not a local rule, policy or directive that governs the operation of the court.” Former Maryland Rule 16-905(f)(3)(B)(i).20 The Circuit Court concluded that the edit table did not fall within that provision because “it functions as ‘a local rule, policy, or directive that governs the operation of the court.’” Citing the Harding affidavit, the court noted that “it is easier and potentially more accurate for personnel in the various clerk’s offices to enter these codes rather than to type in the names of individual judges.” That practice, the court concluded, “is a uniform administrative practice of the District Court – part of its administrative policies and directives – and the edit table itself is an integral part of implementing that policy or directive.” The court also noted that the Judiciary had posted online a translation of other codes used in case histories and that it had not provided a basis to distinguish between that 19 As indicated above, that exception now appears in current Maryland Rule 16- 913(d). 20 A separate sub-prong of the second prong protecting certain draft documents from disclosure – former Maryland Rule 16-905(f)(3)(B)(ii) – did not apply, as the AOC did not contend that the edit table was a draft. 16 “operational, policy, practice, or directive” and the non-disclosure of the “edit table,” which functioned as a similar key to Case Search. The court held that subsection (f)(3) did not require the AOC to withhold the code key, and granted Abell’s motion for summary judgment. 5. Appeal The AOC appealed. The Court of Special Appeals affirmed on reasoning similar to that of the Circuit Court. 252 Md. App. 261 (2021).

The intermediate appellate court rejected the AOC’s argument that the code key was not a “local policy, rule, or directive,” reasoning that it embodied a policy decision to display the codes on Case Search instead of judges’ names and, in that way, served as a policy or directive that “governs the operation of the court.” 252 Md. App. at 269. The intermediate appellate court further observed that the “only tangible manifestation” of the policy was the “edit table” itself, so that limiting the AOC’s disclosure obligations to only those records that expressly stated a local rule, policy, or directive would be contrary to the general presumption of the PIA and Access Rules in favor of disclosure. Id. at 270-71. In a footnote, it suggested that, if there had been “a memo or some other tangible manifestation of the policy,” the edit table itself might then fall within the exception in subsection (f)(3).

Id. at 270 n.3. We granted AOC’s petition for a writ of certiorari to address the application of subsection (f)(3) to Abell’s request. 17 II Discussion The facts are undisputed, although that does not mean that they are unambiguous. For example, in her affidavit, Ms. Harding states that the information relating the alphanumeric code to the names of judges is “placed into a mainframe edit table.” It is unclear whether the edit table in question simply equates to a code key for judges’ names or encompasses other types of information. Similarly, while the parties agree that, as of July 2018, for cases in the District Court sitting in Baltimore City, Case Search identified the judge presiding over, or deciding, a matter by alphanumeric code rather than by name, it is not clear on the record of this case to what extent Case Search entries for cases in other jurisdictions supply the name, a code, or nothing at all to identify the presiding judge.

A random review of entries on Case Search for 2018 does not reveal a consistent pattern. These ambiguities are puzzling, but they do not impede us from reaching the legal issue before us and resolving this case. Abell seeks only a list of Case Search identifiers for judges in the District Court in Baltimore City – what we are referring to as the code key. The AOC does not dispute that what it has, and could produce, is a record that would satisfy that request.

In the AOC’s view, the impediment to doing so is the mandatory exception to disclosure in subsection (f)(3). In a certain respect, the dispute over the application of subsection (f)(3) to the code key appears to be more one of principle than practical result. The AOC agrees that the 18 identity of a judge who presides over a particular matter in the District Court in Baltimore City is not a secret. Indeed, it points out that anyone who wishes to learn the identity of a judge presiding over a particular matter is free to go to the courthouse and obtain the answer there.

And the AOC displays the alphanumeric code for that judge in the Case Search entry for the proceeding. So, with a bit of legwork, a member of the public could replicate the code key that matches judges’ names with alphanumeric codes. Yet the AOC takes the position that the plain meaning of subsection (f)(3) – as it existed in 2018 – expressly forbade it from disclosing the code key itself. For its part, Abell does not dispute that the code key is an “administrative record” for purposes of the Access Rules and that many administrative records of the Judiciary can be withheld from public disclosure.

Nor does it dispute that it could learn the name of the judge involved in a particular case by going to the courthouse, yet it insists on obtaining a copy of the code key. It cites general propositions concerning the openness of court records and advocates for a construction of subsection (f)(3) that would allow disclosure of the code key. A. Standard of Review When it denied Abell’s request for access to the code key, the AOC relied on the exception in subsection (f)(3) relating to certain administrative records. The Circuit Court and the Court of Special Appeals came to a different conclusion than the AOC about the interpretation of that exception.

This is a purely legal question on which we accord no 19 special deference to the decisions of the Circuit Court or the Court of Special Appeals. Scarfield v. Muntjan, 444 Md. 264, 270-71 (2015). B. Whether the Mandatory Exception in Subsection (f)(3) Applies to the Code Key The parties have not briefed the question whether the code key is an administrative record.21 We will accept the apparent assumption of the parties that it is and that this case turns on the interpretation of the exception to disclosure of administrative records in subsection (f)(3). The question then is whether that mandatory exception required the AOC custodian to deny Abell’s request for a copy of the code key.

The Maryland Rules are construed according to the same principles as statutes and other enactments. Lisy Corp. v. McCormick & Co., Inc., 445 Md. 213, 221 (2015). One begins with the text of the rule and gives the relevant words their ordinary meaning in the 21 The question is not whether the code key is an “administrative record” in a colloquial sense. This Court has repeatedly stated that the Maryland Rules are “precise rubrics” that are to be “strictly followed.” E.g., General Motors Corp. v. Seay, 388 Md. 341, 344 (2005).

The category of “administrative records” is not a catch-all category in the Access Rules, but rather one with a specific definition set out in former Maryland Rule 16-902(a). There may be an argument that the code key does not fit the definition in that rule. It is not among the specific examples of administrative records listed in subsection (a)(2). See footnote 9 above.

Under the more general language of subsection (a)(1), the question is whether the code key both “pertains to the administration of [the District Court]”and “is not a case record.” Nothing in the record of this case indicates that the code key is used in the administration of that court other than as a tool to input data from paper case records into the database that provides what is defined as “remote access” to case records – Case Search. The code key may not, strictly speaking, be a case record itself, but it is not unlike the court forms and instructions that make up and are necessary to make intelligible many court filings. To the extent that the code key would be regarded as part of a case record, there is no exception for access to case records that would require, or even allow, the code key to be withheld in response to a records request. 20 context of the rule as a whole and the larger set of rules of which that rule is part. If there is ambiguity in either the language itself or its application to the circumstances at hand, the history of the adoption of the rule can be instructive as to the purpose of the rule.

In addition, one may look to the ramifications of the possible alternative interpretations of the language in question. Cf. Nationstar Mortg. LLC v. Kemp, 476 Md. 149, 169-70 (2021) (outlining similar approach to construction of statutes). 1.

Text of Subsection (f)(3) As previously noted, subsection (f)(3) required a records custodian to withhold from disclosure an administrative record that is: (a) Prepared by or for a judge or other judicial personnel; (b) Either (i) purely administrative in nature but not a local rule, policy, or directive that governs the operation of the court or (ii) a draft of a document intended for consideration by the author or others and not intended to be final in its existing form; and (c) Not filed with the clerk and not required to be filed with the clerk. This is not an easy exception to the general principle of openness for anyone to apply. First, as the Circuit Court noted, it consists of three prongs that all must be satisfied for the exception to apply. But two of those prongs contain “sub-prongs” – one phrased in the conjunctive and the other in the disjunctive – which are stated in the negative.

In other words, in the course of determining whether all three prongs are met, the custodian must make sure that certain things are not true. The provision is elegant in its logic, but less so in its practical application. The AOC Assistant Administrator might be forgiven for reaching a different conclusion than we do as to its breadth. 21 Compounding a custodian’s dilemma is the fact that this is a mandatory exception – if the exception applies, the custodian has no discretion, but must deny disclosure of the record. A conscientious custodian may well feel conflicted in being faithful, on the one hand, to the general principle that court records are open and, on the other, to the command of a mandatory exception that the custodian may not disclose a record.

Luckily for us, at this stage of the case, just a few words in subsection (f)(3) appear to be at issue. Everyone seems to agree that the first and third prongs are satisfied – that is, the code key is “prepared by or for … judicial personnel” and is not filed, or required to be filed, with the clerk. In addition, no one contends that the code key is a “draft” or a local rule. The only point of dispute is whether the code key is a “policy[] or directive that governs the operation of the court” – in which case the exception in subsection (f)(3) would not apply – or is not a “policy or directive” – in which case the exception would apply.22 Both the Circuit Court and the Court of Special Appeals concluded that the code key was the functional equivalent of a policy and therefore that the exception did not apply.

The AOC argues that those courts adopted a strained reading of the word “policy” to extend it to a list of codes and names. 22 There is a grammatical ambiguity in the first half of the second prong of subsection (f)(3): Does the final phrase “that governs the operations of the court” modify all of the items in the list that precedes it – i.e., “local rule,” “policy,” and “directive,” – or just the last one (“directive”)? As the definition of “administrative record” starts from the premise that it “pertain[s] to the administration of a court ... or the judicial system” (former Maryland Rule 16-902(a)(1)), and thus to operations of a court, the final qualifying phrase presumably applies to all three items in the list. 22 The word “policy” has several ordinary meanings, depending on context, a number of which clearly do not apply here. In some contexts, for example, it refers to an insurance policy or numbers game. More generally, the American Heritage College Dictionary (3rd ed. 1993), which orders the definitions of a word by the most “central,” p. xxv, defines “policy” primarily as “[a] plan or course of action, as of a government, political party, or business, intended to influence and determine decisions, actions, and other matters” and secondarily as “[a] course of action, guiding principle, or procedure considered expedient, prudent or advantageous.” Id. at p. 1058.

The Merriam-Webster online dictionary offers slightly different definitions. The three most potentially relevant ones are “management or procedure based primarily on material interest”; “a definite course or method of action selected from among alternatives and in light of given conditions to guide present and future decisions”; and “a high-level overall plan embracing the general goals and acceptable procedures especially of a governmental body.”23 A “directive,” according to the American Heritage College Dictionary is “an order or instruction, esp. one from a central authority.” Id., p. 393. According to the Merriam- Webster online dictionary, it is “something that serves to direct, guide, and usually impel 23 “Policy”, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/policy, available at https://perma.cc/F7GV- 28HT. 23 toward an action or goal especially government: an authoritative order or instrument issued by a high-level body or official….” 24 If these dictionary definitions were to govern the interpretation of subsection (f)(3), it would seem that a list of names and corresponding codes is not in itself a “directive” in the ordinary sense of that word, as it neither issues an order nor gives an instruction. Whether the code key is a “policy” poses a much closer question.

Arguably, it meets both the American Heritage College Dictionary’s second definition of a “policy” as a “procedure considered expedient, prudent or advantageous” and Merriam-Webster’s definitions of “policy” as a “procedure based primarily on material interest” or a “method of action selected from among alternatives . . . to guide present and future decisions.” Nonetheless, while the dictionaries are somewhat informative on what subsection (f)(3) might ordinarily mean, they do not establish a clear meaning of the word “policy” as applied to the code key, which, in and of itself, neither sets a procedure for its use nor requires its use. We therefore look more broadly to the purpose and history of subsection (f)(3) – and the Access Rules of which it is a part. 2. Finding the History of a Maryland Rule The “legislative history” of a Maryland Rule can consist of a number of items:  The original and amended versions of the particular rule. 24 “Directive”, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/directive, available at https://perma.cc/4APK-JWPB. 24  The record of any deliberations of the Court of Appeals at the open meeting at which the rule was considered and after which the Court adopted the rule.  Committee Notes of the Standing Committee of Rules of Practice and Procedure (“Rules Committee”),25 as adopted by the Court of Appeals and codified with various versions of the particular rule.26  Source Notes, published with a rule, that direct a reader to a predecessor rule or other source, if any, from which the rule was derived.  Reports by the Rules Committee submitted to the Court of Appeals, which contain proposed rules, and the cover letters of the Chair of the Rules Committee explaining the purpose and design of the proposed rules.  Reporter’s Notes, which are not adopted by the Committee and are not regarded as an official interpretation of proposed rules but which convey to the Court some of the research and rationale behind proposed rules.  Minutes of Rules Committee meetings and deliberations concerning its proposals and the reports and minutes of subcommittees and other committees appointed to address a particular subject. A number of these items that exist concerning the Access Rules are instructive on the interpretation of subsection (f)(3). 25 The Court of Appeals created the Rules Committee to assist the Court in the exercise of its constitutional rulemaking powers.

Maryland Rule 16-701. The committee consists of judges, court officials, lawyers, and others with interest and expertise in the subject matter of court rules. See Murphy, 478 Md. at 342 n.3. The Rules Committee’s minutes and reports referenced in this opinion can be found on its webpage on the Judiciary’s website. 26 A Rules Committee Note that is codified with a Rule has been approved by the Court of Appeals as part of its consideration of rules proposed by the Rules Committee.

A codified note therefore provides an authoritative basis for construing the rule to which it is appended. See, e.g., Murphy, 478 Md. at 348 n.10; State v. Walker, 345 Md. 293, 317 (1997). 25 3. History of the Adoption of Subsection (f)(3) If the exception stated in subsection (f)(3) can be difficult to apply, it can also be difficult to find. During the past seven years it has appeared under four different codifications – a fugitive provision never remaining long in the same location. 2003 – Court Committee Report During the early 2000s, the Court of Appeals began a process for creating rules that would provide more specific guidance than the general common law or the PIA about public access to court records.27 Near the end of that process, in late 2003, then-Chief Judge Robert M. Bell designated a three-judge committee of the Court of Appeals (“Court Committee”) to draft a set of rules.28 The Court Committee did so and issued a report with a proposed set of rules on November 13, 2003.

Court Committee Designated to Develop Rules Regarding Public Access to Public Records, Recommendations to Court of Appeals (November 13, 2003) (“Court Committee Report”).29 The proposed rules in the Court Committee Report were the basis of the rules adopted shortly thereafter by the Court of Appeals. Nearly two decades later, most of the text of the current Access Rules can be traced to the draft rules recommended in the Court Committee Report. 27 A webpage on the Judiciary website entitled “Committee on Access to Court Records” reflects the chronology of these events and contains links to the various committee reports: https://www.courts.state.md.us/access, available at https://perma.cc/DSL7-TMRD. 28 The members of the committee were Chief Judge Bell, Judge Alan M. Wilner, and Judge Lynne A. Battaglia. 29 Available at https://perma.cc/TYW2-N8FV. 26 In a preface to its recommended rules, the Court Committee noted that the PIA had been intended to “open up” records in the Executive Branch that had previously been shielded from public inspection; by contrast, “the courts have always been regarded as open to the public, and documents filed in court proceedings have historically been open to public inspection.” Court Committee Report at 2. The Court Committee observed that rigid application of exceptions in the PIA to court records would result in the closing of records that historically had been open. Id.

The Court Committee Report classified judicial records into several categories, much as the current Access Rules do, and made clear the extent to which the PIA’s exceptions from disclosure would apply to the different categories of judicial records. Pertinent to this case, the Court Committee Report proposed a definition of “administrative record” nearly identical to that in the Access Rules applicable to this case and indicated generally that the right to inspect administrative records would generally follow the principles set forth in the PIA. Court Committee Report at 5-6, 18. The Court Committee also proposed an exception to disclosure for certain administrative records (denominated as proposed Rule 16-1004(e)(2)) that was essentially identical to that which appeared in subsection (f)(3) of the Access Rules applicable to this case and that currently appears in Maryland Rule 16-913(d).

Court Committee Report at 23-24. The Court Committee Report explained the origin of that exception as follows: “There is no direct source for this exception. It follows, in a general way, the exception in [Maryland Code, State Government Article (“SG”)] §10-618(b) for interagency and intra- 27 agency memoranda and is also intended to shield non-final drafts of memoranda.” Id. At that time, SG §10-618(b) of the PIA provided a discretionary exception for “any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit” – an exception that is based on a similarly-worded exception in the federal Freedom of Information Act (“FOIA”)30 and that is frequently referred to as the “deliberative process privilege.” The PIA exception is currently codified at GP §4-344. 2004 – Adoption by Court of Appeals of First Set of Access Rules The proposed rules in the Court Committee Report were referred to the Rules Committee’s subcommittee on style, which made some minor revisions.31 A final draft was then submitted to the Court of Appeals.

The Court considered that draft at an open meeting on February 9, 2004. At that meeting, Judge Wilner presented the proposed rules on behalf of the Court Committee. He summarized the Court Committee Report and spotlighted various choices made by the Court Committee in drafting the rules. Of some relevance here, he indicated that most of the exceptions to disclosure in the proposed rules were drafted as mandatory rather than discretionary exceptions because the clerks – the custodians of many types of court records – and the news media – frequent requesters of 30 5 U.S.C. §552 (b)(5). 31 Among other things, the style subcommittee eliminated annotations in the Court Committee’s Report concerning the origin or reasoning for inclusion of particular rules, including proposed Rule 16-1004, and, in lieu of those annotations, simply indicated in source notes that “This Rule is new.” 28 court records – both preferred a regime that did not give the clerks discretion as to what records should be disclosed in response to a request.

There was no specific discussion at the meeting of the exception in proposed Rule 16-1004(e)(2) – the predecessor of subsection (f)(3) at issue in this case. A month later, the Court adopted the proposed rules, with some changes, as Chapter 1000 of Title 16. Rules Order (March 4, 2004). The Court adopted the proposed Rule 16- 1004(e)(2) verbatim as the Court Committee had originally proposed it, except for non- substantive stylistic changes.

Also approved in the 2004 Rules Order was a Committee Note to new Rule 16- 1001, which contained the definitions of the various categories of records. The Committee Note explained that the administrative records maintained by courts or judicial agencies “mostly involve[e] personnel, budgetary, and operational management, [and] are similar in nature and purpose to the kinds of administrative records maintained by Executive Branch agencies …. The Rules in this chapter treat those kinds of records more or less the same as comparable Executive Branch records.” 2016-17 – Recodification and Revision of Access Rules During 2016 and 2017, the Court re-codified the Access Rules and revised them in minor respects. See Rules Order (June 6, 2016) (rescinding Title 16 of Maryland Rules and adopting a new Title 16); Rules Order (June 20, 2017).

The revisions continued the approach of classifying judicial records into defined categories and amended the definition of “administrative record” to include judicial education materials. The new codification of 29 the rule defining those categories retained the Committee Note from the original rules equating the category of administrative records to similar records in Executive Branch agencies. The exception to disclosure in former Maryland Rule 16-1004(e)(2) was re- codified, without substantive change, first as Maryland Rule 16-904(d)(3) and later as Maryland Rule 16-905(f)(3) – its codification at the time of the Abell records request. The recodifications and revisions undertaken in 2016 and 2017 also effected other changes in the Access Rules that are not relevant here.

Summary It seems clear that both the 2003 Court Committee and the Court intended at the time that the Access Rules were first adopted that the presumption of disclosure in those rules would be at least as broad as that in the PIA; that the disclosure of the Judiciary’s administrative records would generally follow the principles applicable to Executive Branch agency records under the PIA, with the PIA filling any gaps in the Access Rules; and that the particular exception set forth in subsection (f)(3) would protect the same sorts of pre-decisional records that the PIA exception in SG §10-618(b) – now codified at GP §4-344 – protected from disclosure.32 32 There is a well-developed body of case law construing this PIA exception, as well as the parallel exception in the federal Freedom of Information Act. See Stromberg Metal Works, Inc. v. University of Maryland, 382 Md. 151, 161-67 (2004); Governor v. Washington Post Co., 360 Md. 520, 550-53 (2000); Cranford v. Montgomery County, 300 Md. 759, 771-77, 784-85, 791 (1984); see generally Office of Attorney General, Public Information Act Manual (Sept. 2021) at pp. 3-34 through 3-38, available at https://www.marylandattorneygeneral.gov/OpenGov%20Documents/Chapter3.pdf (also available at https://perma.cc/K3E3-U9G7); Department of Justice, Guide to the Freedom of Information Act, Exemption 5 (August 26, 2019), available at 30 As a threshold matter, GP §4-344 is a conditional exemption. To invoke it, a custodian must “believe[]” that the requested inspection “would be contrary to the public interest.” GP § 4-343. Then, under GP §4-344, a custodian “may deny inspection of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit.” As relevant here, the exception imports into the PIA the common law protections for Executive Branch pre-decisional communications—an “interagency or intra-agency” communication—when that communication would fall within the deliberative process privilege.33 Office of the Governor v. Washington Post Co., 360 Md. 520, 551 (2000).

There, in addressing the former SG §10-618(b), the Court explained that the exception “to some extent reflects that part of the executive privilege doctrine encompassing letters, memoranda or similar internal government documents containing confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another official for the purpose of assisting the latter official in the decision-making function.” Id. The purpose of the privilege is to encourage such employees and officials to give “completely candid advice by reducing the risk that they will be subject to public disclosure, criticism and reprisals,” and to enable decisionmakers to “think out loud ... uninhibited by the danger https://www.justice.gov/oip/page/file/1197816/download (also available at https://perma.cc/9RS7-TURV); James T. O’Reilly, Federal Information Disclosure (June 2022 update), Chapter 15. 33 GP § 4-344 also shields attorney work product. 31 that tentative but rejected thoughts will become the subject of public discussion.” Maryland Bd. of Physicians v. Geier, 451 Md. 526 , 567–68 (2017), quoting Hamilton v. Verdow, 287 Md. 544, 558 (1980) (quotation marks and citations omitted). Accordingly, the privilege does not apply when “the records sought to be protected patently do not represent the content of confidential communications of an advisory or deliberative nature.” Washington Post, 360 Md. at 562 . Reading subsection (f)(3) to generally follow the PIA’s deliberative process exception makes sense when it is viewed in the context of the other Access Rule provisions concerning the disclosure of administrative records.

The challenge is to identify, in concrete terms, just what sort of record or information subsection (f)(3) sought to shield. Helpful to that inquiry are the examples of an “administrative record” provided in former Maryland Rule 16-902(a)(2). One such example is jury selection records. The exceptions applicable to those records are set forth explicitly in former Maryland Rule 16-905(c).

Another example of administrative record given in former Maryland Rule 16-902(a)(2) is judicial educational materials, explicitly addressed in former Maryland Rule 16-905(f)(2); a third is judicial work product, explicitly addressed in former Maryland Rule 19-605(f)(1). Yet another example is “an analysis or report” that is “prepared by or for a court or court agency,” used by it “for purposes of judicial administration,” and neither filed nor required to be filed with the clerk. Former Maryland Rule 16-902(a)(2)(C). Those intra- or inter- agency documents, when not finalized into an order, policy, or directive, are the types of internal – and deliberative – documents that subsection (f)(3) was apparently intended to 32 protect.

Read otherwise, the exception in subsection (f)(3) would seem to apply to every administrative record that is not a formally-promulgated rule, policy, or directive. 4. Application to Abell’s Request for the Code Key Although the predecessor of GP §4-344 provided the inspiration for the predecessor of subsection (f)(3), the two exceptions are worded differently. One difference reflects the preference of the drafters of the Access Rules for phrasing exceptions in mandatory terms. Thus, subsection (f)(3) states that a custodian “shall deny” a request for the records within its purview, while the PIA provision states a conditional or discretionary exception.

That distinction, however, does not make a difference to the question of whether the code key contains information that subsection (f)(3) was intended to shield from public view. The answer to that question is clearly “no.” The code key is just a list of names and codes. It did not lead to or even precede a decision pertaining to its content; it did not reflect deliberations among Judiciary staff; it was not prepared as an internal report or analysis to aid a decisionmaker. Because the code key “patently do[es] not represent the content of confidential communications of an advisory or deliberative nature,” Washington Post, 360 Md. at 562 , the exception stated in subsection (f)(3) does not apply to it.34 34 Accordingly, contrary to the suggestion in the opinion of the Court of Special Appeals, see 252 Md. App. at 270 n.3, the disclosure of this record does not depend on whether the AOC has a memo or other record that governs the use of the edit table that contains the code key – a condition that, in some circumstances, could be difficult for a custodian to apply. 33 The difficulty with mandatory exceptions in records disclosure laws is that a custodian, mindful of the duty to adhere to them, may be inclined to read them literally and to use them as a checklist so as not to risk an