In Re Criminal Investigation No. 437

CHARLES E. ORTH, Judge, Specially Assigned. The question on this appeal is whether the Circuit Court for Baltimore City erred in ordering disclosure to the federal government for use in a civil proceeding against a private corporation of materials obtained from the corporation by the Grand Jury of Maryland in the course of a criminal investigation. We hold that the court did not err. STATEMENT OF THE CASE About the middle of June 1986, the Attorney General of Maryland, in compliance with gubernatorial mandates, see In Re Special Investigation No. 185, 293 Md. 652, 654 , 446 A.2d 1151 (1982), brought the attention of the Grand Jury of Maryland, convened in Baltimore City, to a private corporation acting as a pharmaceutical Medicaid provider (the ⁶⁹ pharmacy). 1 Documents, including records of prescriptions filled at two of the pharmacy’s stores, were obtained through subpoenas duces tecum issued by the Grand Jury.

The documents concerned the pharmacy and a licensed pharmacist employed by the pharmacy (the employee) in the activities of the pharmacy as a Medicaid provider. 2 In May 1988, the investigation was discontinued. No indictments were returned. The Grand Jury disbanded. The pharmacy had reported that certain subpoenaed documents which the State permitted it to retain temporarily had been destroyed.

Nevertheless, the State felt that any monies that may have been overpaid by Medicaid should be recovered. So it ⁷⁰ turned to State civil procedures. In the middle of June 1988, the State filed a motion in the Circuit Court for Baltimore City seeking authority to disclose to named State agencies all documents obtained by the Baltimore City Grand Jury and the State from the pharmacy “for the sole purpose of pursuing any State civil and administrative proceedings to recover any amounts previously overpaid to [the pharmacy].” The pharmacy “agreed and consented to” the disclosure but with a proviso. It declared: By consenting to this disclosure, [it] does not waive its rights to object to further disclosure to other persons or agencies.

The employee was not a party to the consent. The court granted the motion and issued an order in accord therewith on 14 June Í988. Then the State decided to request the federal government to pursue civil remedies. On 23 June 1988, the State filed another motion in the Circuit Court for Baltimore City seeking disclosure of certain Grand Jury materials, this time to the federal government so it could seek civil sanctions.

Upon a hearing, the court granted the State’s motion by order dated 20 July 1988. On 22 July 1988, the State filed a “Motion for Appropriate Relief (Motion to Supplement Record).” The State sought permission to have a letter of transmittal accompany the documents ordered to be disclosed. The court granted the motion on the date it was filed. The pharmacy and the employee noted a timely appeal to the Court of Special Appeals “from the Orders of the Circuit Court for Baltimore City entered in this action on July 20, 1988 and July 22, 1988, authorizing the disclosure of grand jury materials.” We granted appellants’ petition for the issuance of a writ of certiorari before decision by the intermediate appellate court. ⁷¹ THE GRAND JURY The Common Law The grand jury is of ancient English vintage.

It stemmed from the “Grand Assize” established by Henry II, primarily as a weapon for the King’s use in enforcing the King’s peace. Gilbert, The Grand Jury—An Indictment, The Law Forum 4 (fall, 1987). An accusation by the Grand Assize was followed by trial by ordeal in the form of cold water or hot water or hot iron or abominable morsel. Id.

The ordeal was of such nature that conviction usually followed an accusation. Although the barbarous trial by ordeal was abolished in 1215, the accuser and the trier of the facts, unlike today, were the same body. In re Report of Grand Jury, 152 Md. 616, 619 , 137 A. 370 (1927). Gradually, however, the grand jury concept evolved to be that as we now know it.

In the forty-second year of Edward III, at a commission of oyer and terminer, “the sheriff of the county was required ... to return a panel of knights, which the old records designate as ‘Le Graunde Inquest.’ ” Id. at 620 , 137 A. 370 . “From that early time on to the present,” we observed in In re Report of Grand Jury, 152 Md. at 621 , 137 A. 370 , and quoted in In Re Special Investigation No. 236, 295 Md. 573, 577-578 , 458 A.2d 75 (1983), the grand jury has been continued and preserved as an institution necessary for the preservation of the peace, good order, and dignity of the state in bringing to trial those guilty of violations of law, and in protecting people from being put on trial upon frivolous, unfounded, or false accusations.[ 3 ] So, at the common law, just as no man may be convicted and punished of a felony without the unanimous verdict of twelve of his peers, ⁷² constituting a petit jury, neither can he be put to his trial for any such offense except upon the presentment or indictment by at least twelve of his fellow citizens, constituting the grand jury.[ 4 ] In re Report of Grand Jury, 152 Md. at 621 , 137 A. 370 . Given that the two great purposes of the grand jury are to bring to trial those who are properly charged with crime, and to protect the citizen against unfounded accusations of crime, it is clear that [t]he grand jury is an accusing body, and not a judicial tribunal, and it acts upon knowledge possessed by its members from any source, whether from witnesses brought before it, or from information gained before its sessions. Coblentz v. State, 164 Md. 558, 566 , 166 A. 45 (1933). We said in Blaney v. State, 74 Md. 153, 156 , 21 A. 547 (1891): [I]n this State they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders though no prelimi ⁷³ nary proceedings have been had before a magistrate, and though neither the court nor the State’s Attorney has laid the matter before them.

In the exercise of the broad inquisitorial power enjoyed by the grand jury, however, it is confined to an investigation of violations of the criminal law. In re Report of Grand Jury, 152 Md. at 622 , 137 A. 370 . In In Re Special Investigation No. 236, 295 Md. at 583 , 458 A.2d 75 , we declared: “The conclusion is inescapable that at common law the grand jury was concerned with matters criminal.” 5 “[UJnless such investigations [of matters criminal] disclose facts which would constitute a recognized violation of the criminal law, [the grand jury] have no power or authority to criticize any particular individual or number of individuals. In Re Report of Grand Jury, 152 Md. at 623 , 137 A. 370 .

In other words: If the evidence obtained through their investigations warrants a presentment or indictment, under the law and the oath which they are required to take, they are bound to present or indict, and if in their judgment it falls short of showing the commission of a criminal offense, they are bound to refrain from making public the results of their investigation. Id. The Grand Jury Under the Federal Government As we have seen, an integral part of the common law was the right of a person in a criminal cause to have his fate placed in the hands of his country, that is, in a jury of his ⁷⁴ peers. The jury concept encompassed not only the determination of a person’s guilt or innocence of a crime charged, but also whether he should be charged with a crime in the first place.

Whether to charge was the function of a “grand” jury. The determination of guilt or innocence of a crime charged was the function of a “petit” jury. When the British colonies were established in America, the common law of England followed. The time came when the colonists found it necessary to throw off the English yoke and obtain relief from the suppression of their “unalienable Rights.” They won their independence on the field of battle and proclaimed it by a Declaration of Independence.

Then, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity they ordained and established a Constitution for the United States of America. The Constitution became effective on 4 March 1789, the day fixed for the commencement of the operations of the government, by virtue of its ratification by the conventions of eleven states, of which Maryland was one. On 25 September 1789, Congress proposed ten amendments which were declared ratified on 15 December 1791. The amendments became known as the Bill of Rights because they went to ensure and preserve those “unalienable rights” so arduously won in the fight for independence.

One of the rights guaranteed by the Bill of Rights was the entitlement of an accused to a jury. The Fifth Amendment concerned the grand jury: No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury____[ 6 ] ⁷⁵ The Grand Jury in the State of Maryland In Maryland, there is no constitutional right of a person accused of a crime to be indicted by a grand jury. The federal constitutional provision is not applicable to the states, see Hurtado v. California, 110 U.S. 516, 535 , 4 S.Ct. 111, 120 , 28 L.Ed. 232 (1884); the Maryland Constitution does not bestow the right, and common law rights may be changed by legislative enactment, judicial opinion, and rules of court. Lutz v. State, 167 Md. 12, 15 , 172 A. 354 (1934).

It once was that in Maryland the right to indictment by a grand jury was given by legislative enactment implemented by the Maryland Rules, but subsequent legislation and rule amendments abrogated the right, although retaining a grand jury indictment as one means of charging an accused of certain crimes. The law as it was and the legislative history of the partial demise of the right to indictment by a grand jury are traced in Moaney v. State, 28 Md.App. 408 , 346 A.2d 466 (1975). Although there is no Maryland constitutional right to indictment by a grand jury, the organic law of this State recognizes the grand jury concept in our system of criminal justice. “We, the People of the State of Maryland” declared in Article 5 of the Declaration of Rights That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law____ And “we” declared in Article 21 of the Declaration of Rights That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; ... and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty. Although the grand jury is not expressly named, its recognition is implicit in Article 5 by the entitlement to the common law of England, and in Article 21 inasmuch as the ⁷⁶ primary purposes of an indictment returned by a grand jury is to fulfill the constitutional requirements contained in that article.

State v. Morton, 295 Md. 487, 490 , 456 A.2d 909 (1983); Ayre v. State, 291 Md. 155, 163 , 433 A.2d 1150 (1981). Despite the absence of a constitutional right, it is manifest that the grand jury still plays an important role in the administration of criminal justice in this State. A grand jury is convened in every county and in Baltimore City. The Maryland Code is replete with provisions concerning the grand jury and grand jurors.

The declared policy of this State is that every citizen who maintains his name on the roll of voters registered for State elections shall have the opportunity to serve on grand juries and the obligation to serve when summoned. Maryland Code (1973, 1984 Repl.Vol.), § 8-102(b) of the Courts and Judicial Proceedings Article. Under the Maryland Rules, a “charging document” includes an indictment, Rule 4-102(a), and an “indictment” means “a charging document returned by a grand jury and filed in a circuit court,” Rule 4-102(d). More often than not, when charges against an accused originate in the circuit court, they emanate from the grand jury.

SECRECY AND THE GRAND JURY Secrecy is the lifeblood of the grand jury. The Supreme Court said in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-219 , 99 S.Ct. 1667, 1672-1673 , 60 L.Ed.2d 156 (1979) (footnotes and citation omitted): We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct intereste served by safe guarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony.

Moreover, witness ⁷⁷ es who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. “Grand jury secrecy, then,” the Court pointed out in United States v. Sells Engineering Inc., 463 U.S. 418, 424-425 , 103 S.Ct. 3133, 3188-3139 , 77 L.Ed.2d 743 (1983), quoting United States v. Johnson, 319 U.S. 503, 513 , 63 S.Ct. 1233, 1238 , 87 L.Ed. 1546 (1943), “is ‘as important for the protection of the innocent as for the pursuit of the guilty.’ ” This Court stated in Coblentz v. State, 164 Md. at 566-567 , 166 A. 45 , that it is an inflexible requirement that [the grand jury’s] investigations shall be carried on secretly and free from outside interference or influence; and great care is taken that they shall be so carried on. In response to a Motion for Reconsideration in Jones v. State, 297 Md. 7, 28 , 464 A.2d 977 (1983) (citations omitted), we made clear that [t]he rule of secrecy surrounding grand jury proceedings is a product of the common law and “is designed to protect the jury from outside interference or pressure[.]” We noted that the secrecy rule is not designed for the protection of witnesses, but for that of grand jurors and in furtherance of public justice.

Id. And, we added, nor does the witness have a privilege of having his testimony treated as a confidential communication. Id. The Court in Coblentz explained that “[t]he purposes of [the secrecy rule] are many.” 164 Md. at 567 , 166 A. 45 .

Freedom of inquiry is to be preserved, and at the same time individuals whose conduct may be investigated, but against whom no indictment may be found, are to be ⁷⁸ protected from disrepute, and all individuals are to be protected from one-sided presentations of unfavorable evidence, without opportunity to reply, before any one present unnecessarily. Id. There is a statutory prescription, that [a]ll persons who have been selected for grand jury service in the circuit court of any county in the State shall take an oath of secrecy. Md.Code (1973, 1984 Repl.Vol.), § 8-213(a) of the Courts and Judicial Proceedings Article.

And the legislature has declared: A grand juror, except when lawfully required by a court, may not willfully disclose (1) any evidence adduced before the grand jury, or (2) anything which he himself or any member of the grand jury said, or in what manner he or any other grand juror voted, regarding any matter before the grand jury. Id. § 8-213(b). A stenographer appointed “to take and transcribe the testimony given before the grand jury for the exclusive use and benefit of the grand jury and the State’s Attorney for the county, unless otherwise ordered by the court,” id. § 2-503(a), “shall take and subscribe an oath that he will keep secret all matters and things occurring before the grand jury,” id. § 2-503(b)(1). 7 In Coblentz, 164 Md. at 567 , 166 A. 45 , the Court said that secrecy is “inherent in the grand jury system with all the force of a statutory enactment.” Id., quoting United States v. Edgerton, 80 F. 374, 375 (D.C.Mont.1897). And it noted that secrecy is found embodied in the familiar grand jury oath that the members sworn shall keep secret the counsel of the state, their fellows, and their own, and shall not present any one ⁷⁹ for envy, hatred, or malice, nor leave anyone unpresented for fear, favor, or affection, or hope of reward. 164 Md. at 567 , 166 A. 45 .

The Court deemed the rule of secrecy to be “not merely a remedial one, that injury shown to have been sustained by the accused in a particular case shall be remedied, but also a preventive one, which interposes in advance for private benefit and public benefit as well.” Id. The Court was aware that “[discriminations between degrees of departure from [the rule] are difficult to manage____” Id. The Court concluded that unless the bar is maintained in all cases, it can hardly have any effective existence. Therefore, the law must act upon the existence of opportunity, rather than await proof of abuse....

Id. See In Re Special Investigation No. 236, 295 Md. at 582, 458 A.2d 75 . Exceptions to the Rule of Secrecy In Dennis v. United States, 384 U.S. 855, 870 , 86 S.Ct. 1840, 1849 , 16 L.Ed.2d 973 (1966), the Court noted “the growing realization that disclosure, rather than suppression, of relevant materials [obtained by the grand jury] ordinarily promotes the proper administration of criminal justice.” This view has been noticed by both the federal government and this State and is reflected in a rule adopted in each jurisdiction. The federal rale came first.

Rule 6 of the Federal Rules of Criminal Procedure is concerned with “The Grand Jury.” Subsection (e)(2), entitled “General Rule of Secrecy” prohibits the disclosure of matters occurring before the grand jury by certain persons under pain of contempt of court. Paragraph (8) sets out exceptions. Sub-paragraph (C)(i) reads: (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made— (i) when so directed by a court preliminarily to or in connection with a judicial proceeding. Subsection (e)(5) calls for the court to “order a hearing on matters affecting a grand jury to be closed to the extent ⁸⁰ necessary to prevent disclosure of matters occurring before a grand jury.” Subsection (e)(6) provides that “[r]ecords, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is. necessary to prevent disclosure of matters occurring before a grand jury.” Maryland Rules 4-641 through 4-644 apply to circuit court procedures relating to criminal investigations. “ ‘Criminal investigation’ [includes] inquiries into alleged criminal activities conducted by a grand jury____” Rule 4-641.

Rule 4-642(c) provides: Unless disclosure of matters occurring before the grand jury is permitted by law without court authorization, a motion for disclosure of such matters shall be filed in the circuit court where the grand jury convened. If the moving party is a State’s Attorney who is seeking disclosure for enforcement of the criminal law of a state or the criminal law of the United States, the hearing shall be ex parte. In all other cases, the moving party shall serve a copy of the motion upon the State’s Attorney, the parties to the judicial proceeding if disclosure is sought in connection with such a proceeding, and such other persons as the court may direct. The court shall conduct a hearing if requested within 15 days after service of the motion.

Rule 4-642(a) requires that “[f]iles and records of the court relating to the conduct of criminal investigations shall be sealed and shall be open to inspection only by order of the court.” Section (b) states that “[h]earings before the court relating to conduct of criminal investigations shall be on the record and shall be conducted out of the presence of all persons except those whose presence is necessary.” 8 ⁸¹ It is apparent that the federal disclosure rule and the Maryland disclosure rule are cut from the same cloth. They are both founded on the tenet that secrecy is inherent in the function of the grand jury. They both recognize that unwarranted intrusion on that secrecy is not to be tolerated. They both insist that generally the secrecy as to records and hearings related to matters occurring before the grand jury must be preserved.

They both suggest that ‘ [i]n the absence of a clear indication in statute or rule, the courts must always be reluctant to conclude that a breach of this secrecy has been authorized.” Sells, 463 U.S. at 425 , 103 S.Ct. at 3138 . They both evidence an awareness, however, that the veil of secrecy with which the grand jury is cloaked must be lifted at times in the interest of justice. But this may be done only discretely and limitedly. In the absence of law permitting disclosure of matters occurring before the grand jury without court authorization, a court order is a condition precedent to disclosure.

Neither rule, however, offers or suggests a standard under which the order shall be issued. We are informed by the Minutes of the Court of Appeals Standing Committee on Rules of Practice and Procedure of 15-16 October 1982 at p. 15 that Rule 4-642(c) “to a large extent follows the language of [Federal Rule of Criminal Procedure 6(e)(3)(C)(i) ] regarding non-disclosure and exceptions to non-disclosure” and it is indeed manifest that the lineaments of the two rules are fundamentally the same. As a practical matter the two rules are apart in only one respect. The federal rule requires that disclosure be “preliminarily or in connection with a judicial proceeding.” The Maryland Rule does not have this requirement.

It goes no further in that respect than to prescribe that “the parties to the judicial proceeding” shall be served with a copy of the motion for disclosure “if disclosure is sought in connection with such a proceeding.” To this time we have not been called upon to apply Rule 4-642(c). As we shall see, however, in deciding several cases presenting questions related to disclosure of grand jury matters, we have followed interpretations advanced by ⁸² the Supreme Court with respect to the federal disclosure rule. When we consider the lack of guidelines in our rule, and when we read the two rules in the light of the basis, objective, and procedures common to both of them, we are constrained to seek guidance in the Supreme Court cases relating to the federal rule. The interpretations of the Supreme Court of the federal rule are, of course, not binding on us, but, in the circumstances, they are most persuasive, and we are inclined to follow them.

We search for guidelines governing disclosure in the following cases of the Supreme Court: 9 United States v. John Doe, Inc. I, 481 U.S. 102 , 107 S.Ct. 1656 , 95 L.Ed.2d 94 (1987); United States v. Sells Engineering, Inc., 463 U.S. 418 , 103 S.Ct. 3133 , 77 L.Ed.2d 743 (1983); Illinois v. Abbott & Associates, Inc., 460 U.S. 557 , 103 S.Ct. 1356 , 75 L.Ed.2d 281 (1983); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 , 99 S.Ct. 1667 , 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855 , 86 S.Ct. 1840 , 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 , 79 S.Ct. 1237 , 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble, 356 U.S. 677 , 78 S.Ct. 983 , 2 L.Ed.2d 1077 (1958). Particularized Need Under the Federal Rule of Disclosure The cases are in complete accord that when a court order for disclosure is required, there must be a strong showing of a “particularized need” before disclosure is permitted. John Doe, 481 U.S. at 112 , 107 S.Ct. at 1662 ; Sells, 463 U.S. ⁸³ at 443-445, 103 S.Ct. at 3148-8149; Abbott, 460 U.S. at 567, 103 S.Ct. at 1361 ; Douglas Oil, 441 U.S. at 221 , 99 S.Ct. at 1674 ; Dennis, 384 U.S. at 870 , 86 S.Ct. at 1849 ; Pittsburgh Plate Glass, 360 U.S. at 400 , 79 S.Ct. at 1241 ; Procter & Gamble, 356 U.S. at 683 , 78 S.Ct. at 986 . Under the Maryland Rule of Disclosure [1] Even before our disclosure rule was adopted, we recognized by way of dictum the particularized need requirement for disclosure of grand jury matters.

Attorney Griev. Comm’n v. Strathen, 287 Md. 111, 117 , 411 A.2d 102 (1980). We cited as authority Douglas Oil and Dennis . In Jones v. State, 297 Md. 7 , 464 A.2d 977 (1983), we referred to Strathen as an indication that "we looked with approval on the ‘particularized need’ requirement,” id. at 12, 464 A.2d 977 , and we applied it, id. at 15 , 464 A.2d 977 .

Martinez v. State, 309 Md. 124 , 522 A.2d 950 (1987), referred to Jones as authority that “a ‘particularized need’ exists for disclosure of grand jury testimony____” Id. at 142 , 522 A.2d 950 . Thus, it is plain that we have followed the lead of the Supreme Court and have made the particularized need requirement for disclosure a part of the case law of this State. 10 The Standard for Particularized Need Under the Federal Rule for Disclosure Just as the Supreme Court has enunciated in its opinions the requirement of a particularized need for an order of disclosure, so it has set out the standard for that need in its ⁸⁴ opinions. In Abbott, 460 U.S. at 567, 103 S.Ct. at 1361 , the Court, observing that the federal rule authorizes the trial court “to permit certain disclosures that are otherwise prohibited by the ‘General Rule of Secrecy,’ ” pointed out that “[t]he scope of that authority has been delineated in a series of cases setting forth the standard of ‘particularized need.’ ” The Court referred to Douglas Oil, 441 U.S. at 221-224 , 99 S.Ct. at 1674-1676 ; Procter & Gamble, 356 U.S. at 682 , 78 S.Ct. at 986 , and Pittsburgh Plate Glass, 360 U.S. at 398-399 , 79 S.Ct. at 1240-1241 . It appears that the standard on which the Court looked with favor is that as enunciated in Douglas Oil, 441 U.S. at 222 , 99 S.Ct. at 1674 : From Procter & Gamble and Dennis emerges the standard for determining when the traditional secrecy of the grand jury may be broken: Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.

This standard is referred to by the Supreme Court as the “Douglas-Oil standard.” Sells, 463 U.S. at 445 , 103 S.Ct. at 3149 . In Procter & Gamble, 356 U.S. at 683 , 78 S.Ct. at 986 , the Court indicated that the standard had been met when the grand jury transcript is sought for use at trial “to impeach a witness, to refresh his recollection, to test his credibility____” See Dennis, 384 U.S. at 870 , 86 S.Ct. at 1849 . The Standard for Particularized Need. Under the Maryland Rule for Disclosure We have seen that the federal rule and the Maryland rule differ in practical effect only with respect to the use of grand jury materials “preliminarily to or in connection with a judicial proceeding.” The federal rule has that require ⁸⁵ ment and the Maryland rule does not. 11 So we adapt the federal rule standard to our rule.

We declare as the standard in Maryland for the particularized need requirement for disclosure to be as follows: Parties seeking a court order for disclosure under Md. Rule 4-642(c) must show that: 1) the material they seek is needed to avoid a possible injustice; and 2) the need for disclosure is greater than the need for continued secrecy; and 3) their request is structured to cover only material so needed.[ 12 ] The General Application. of the Requirement for a Showing of a Particularized Need (a) Douglas Oil, 441 U.S. at 222 , 99 S.Ct. at 1674 , teaches that the “showing [of particularized need] must be made even when the grand jury whose [materials] are sought has concluded its operations____” The Court explained: For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand ⁸⁶ juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Pear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Concern as to the future consequences of frank and full testimony is heightened where the witness is an employee of a company under investigation.

Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities. Id. (footnote omitted). 13 (b) Since “disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy,” Douglas Oil, 441 U.S. at 223 , 99 S.Ct. at 1675 , a balancing is invoked. See Martinez, 309 Md. at 143 , 522 A.2d 950 . “The burden of demonstrating this balance rests upon the ... party seeking disclosure.” Douglas Oil, 441 U.S. at 223 , 99 S.Ct. at 1675 . “[A]s the consideration justifying secrecy becomes less relevant, a party asserting a need for grand jury transcripts -will have a lesser burden in showing justification.” Id. “In sum,” the Court concluded, as so often is the situation in our jurisprudence, the court’s duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court.

Id. The Court added: “And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material....” Id. ⁸⁷ The Douglas Oil standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others. Sells, 463 U.S. at 445 , 108 S.Ct. at 3149. The Court continued: “[T]he standard itself accommodates any relevant considerations ... that weigh for or against disclosure in a given case.” Id. “The particularized-need test is a criterion of degree....” United States v. Baggot, 463 U.S. 476, 480 , 103 S.Ct. 3164, 3167 , 77 L.Ed.2d 785 (1983) (emphasis in original).

(c) We learn from Abbott, 460 U.S. at 566-568 and nn. 14-16, 103 S.Ct. 1360 -1362 and nn. 14-16; that the particularized need standard applies to disclosure to state attorneys general. See Sells, 463 U.S. at 444 , 103 S.Ct. at 3148 . Sells tells us that “Abbott and the legislative history foreclose any special dispensation from the Douglas Oil standard for Government agencies.... ” Id. at 445 , 103 S.Ct. at 3149. But the fact that Government agencies are involved may be placed on the scale and weighed in the balance with other considerations to determine particularized need because [n]othing in Douglas Oil ... requires a district court to pretend that there are no differences between governmental bodies and private parties.

Id. at 445, 103 S.Ct. at 3149. 14 “Of course,” said the Court in Sells, ⁸⁸ it would be of substantial help to a Justice Department civil attorney if he had free access to a storehouse of evidence compiled by a grand jury; but that is of a •different order from the prosecutor’s need for access. The civil lawyer’s need is ordinarily nothing more than a matter of saving time and expense. The same argument could be made for access on behalf of any lawyer in another Government agency, or indeed, in private practice. We have consistently rejected the argument that such savings can justify a breach of grand jury secrecy.

Sells, 463 U.S. at 431 , 103 S.Ct. at 3142 . The Court added: In most cases, the same evidence that could be obtained from the grand jury will be available through ordinary discovery or other routine avenues of investigation. If, in a particular case, ordinary discovery is insufficient for some reason, the Government may request disclosure under [the federal order]. Id. “In short,” the Court, declared, if grand juries are to be granted extraordinary powers of investigation because of the difficulty and importance of their task, the use of those powers ought to be limited as far as reasonably possible to the accomplishment of the task.

Id. at 434-435 , 103 S.Ct. at 3143-3144. And, the Court made clear, the fact that grand jury materials sought for disclosure are “rationally related” to a civil fraud suit to be brought by the federal government is insufficient, in itself, under the Douglas Oil standard. Id. at 445, 103 S.Ct. at 3149. It seems, however, that a “rational relationship” may be included in the balancing process.

(d) When all is said and done, “disclosure [is] committed to the discretion of the trial judge.” Pittsburgh Plate Glass, ⁸⁹ 360 U.S. at 399 , 79 S.Ct. at 1240 . The federal disclosure rule “is but declaratory of [this principle],” id., as is the Maryland rule. Douglas Oil, 441 U.S. at 223 , 99 S.Ct. at 1675 , emphasized that a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion. THE APPLICATION OF THE MARYLAND DISCLOSURE RULE TO THE CASE SUB JUDICE The Trial Court In his remarks leading to the conclusion that disclosure should be permitted as requested by the State, the trial judge observed that in response to fifty subpoenas issued by the grand jury in the course of its criminal investigation concerning payments by Medicaid to the pharmacy “approximately twelve banker’s boxes of materials” were obtained.

The judge estimated that “there were a hundred thousand prescriptions in many of those” and a plethora of computer printouts and other documents. 15 But, noted the judge, “out of all those documents which were submitted,” the State is requesting only “112 documents ... and daily prescription receipts, computer printouts” for two stores covering a period of six months “be released from grand jury secrecy and be permitted to be disclosed to [the federal government].” The judge said: The argument is made that the disclosure of this material is particularized, that grand jury secrecy would not ⁹⁰ be compromised by disclosing these documents as they are an infinitesimal part of the total submissions in response to the total grand jury subpoenas. The argument is made that the grand jury has concluded its life, that there were no witnesses who testified, so there’s no testamentary evidence to be transmitted, and that these documents being such an infinitesimal part of grand jury investigation would not in any way compromise or indicate to any person outside that grand jury or outside the confines of those parties in this court what the workings of the grand jury were. The judge found the arguments to be persuasive and explained why: The grand jury is out of existence. Looking at these records, which records are required to be kept in the ordinary course of business of being a part of the medicaid program by [the pharmacy] and records required to be kept by [the employee] ... cannot by any stretch of the imagination, if they are disclosed, show that they were in any way even submitted to a grand jury, much less have been a part of the grand jury process.

With respect to the computer printouts, the judge observed:. The computer printouts are the end result of all of the information contained on the prescription forms and it was [the pharmacy’s] choice to use the computer printouts without the back-up documents which are the prescription onionskins. These computer printouts are about 4 inches, maybe 5, just looking at them, and would be I guess about one-eighth or one-sixth of a banker’s box of material of a total twelve boxes which are received. In no way would they compromise the secrecy of the grand jury by turning them over or disclosing them to the [federal government].

The judge discussed other arguments made: The argument is advanced by the [pharmacy and the employee] that to disclose these documents is to violate ⁹¹ the secrecy of the grand jury and to make the grand jury a civil investigative arm of a federal agency. The argument is that once these items have been turned into the grand jury in response to the subpoena, that they can no longer be transmitted further without violating the rule of grand jury secrecy and that it is to protect those investigated as well as those against who no indictment has been returned. No indictment has been returned, that is true, and the parties who were the subjects of investigation have not been made public and that is true. The judge referred to the particularized need requirement and pointed out that to date the Court of Appeals cases as to the requirement were only with respect to testimony before the grand jury for use in criminal proceedings.

The judge distinguished those cases: We don’t have testimony here. Consequently, in this Court’s view at least, there would appear to be absolutely no indication to [the federal government] that the material being disclosed would show the workings of the grand jury, the process of the grand jury, what took place before the grand jury or