Office State Prosecutor v. Judicial Watch, Inc.

BELL, Chief Judge. In this case, we are called upon to determine whether the Circuit Court for Baltimore County erred by ordering the State Prosecutor to submit a “Vaughn” 1 index of documents, requested pursuant to the Maryland Public Information Act, where those documents are related to an ongoing investigation being conducted by a grand jury convened by another circuit court. We shall hold that it did and, therefore, reverse the judgment ordering the disclosure. I. In February 1998, at the request of the State’s Attorney for Howard County pursuant to Maryland Code (1957, 1995 Repl.Vol., 1997 Supp.) § 9~1203(b) of the State Government Article, 2 Stephen Montanarelli, the State Prosecutor, agreed to ¹²² investigate the highly publicized tape recordings made by Linda Tripp of telephone conversations she had with Monica Lewinsky.

At that time, the State Prosecutor deferred his investigation pending resolution of a separate, federal, investigation being conducted by Kenneth Starr through the Office of Independent Counsel, in which the tapes played an important role. On July 7, 1998, the Office of the State Prosecutor, (“OSP” or “the State”) announced the initiation of a grand jury investigation into alleged violations by Ms. Tripp, of the State Wiretap and Electronic Eavesdropping Statute, 3 Maryland Code (1974, 1995 Repl.Vol., 1997 Supp.) § 10-402 of the Courts and Judicial Proceedings Article. The next day, the appellee, Judicial Watch, Inc. (“Judicial Watch”), filed, with the OSP, a request pursuant to the State’s Public Information Act (“PIA”), Maryland Code (1984,1995 Repl.Vol., 1997 Supp.) §§ 10-611, et seq., of the State Government Article for all documents and things related to, among others, Linda Tripp, Lucianne Goldberg, Monica Lewinsky, Kenneth Starr, and the White House. Responding to that request, the State Prosecutor denied having documents or other material concerning such persons and entities named in Judicial Watch’s PIA request and refused to disclose any documents or other information the OSP might have concerning Ms. Tripp, Ms. Goldberg and Ms. Lewinsky.

The grounds he offered to ¹²³ support the decision were: 1) Judicial Watch is not a “person in interest” and 2) the records sought are part of an investigatory file compiled for law enforcement or prosecution purposes. Following the denial of its request, the appellee filed an action in the Circuit Court for Baltimore County, in which it alleged that the OSP’s non-production violated the PIA. The OSP filed a motion to dismiss, or in the alternative for summary judgment, arguing that the documents the appellee sought were part of a confidential investigatory file compiled for the purpose of conducting an active criminal grand jury investigation. The motion was supported by affidavit of the State Prosecutor.

The appellee countered by pointing out that the OSP had previously made public at least some documents responsive to its request and that its request was made only one day after the announcement of the initiation of the investigation. It then argued from that premise that the documents could not reveal or implicate confidential information about an investigation that had begun only one day earlier. Not conceding the point, the OSP produced the already released documents. Those documents, it explained, related solely to the decision to undertake the investigation and, thus, did not compromise the ongoing investigation.

The circuit court ordered the OSP to submit to the Court and to the appellee, under seal, a “Vaughn” index that “word for word, paper for paper” identified all documents that are responsive to the PIA request. It also instructed the OSP to describe each document with the same specificity required by discovery orders in civil cases. The OSP filed a motion for reconsideration or, in the alternative, for a stay pending appeal, supported by affidavit, in which it argued that all of the withheld documents 4 pertained to the ongoing grand jury ¹²⁴ investigation. It argued further that, in Maryland, custodians of public records need not make an individualized showing when claiming exemption, rather it is sufficient to identify general categories of documents and demonstrate how they would interfere with an ongoing criminal investigation.

Both the motion for reconsideration and the request for stay were denied, the court reasoning: “This court has no qualms about allowing the State Prosecutor identifying what he wants protected in a “category.” The law tells me what to do. What he cannot do is generalize and categorize under the bald allegation that “I say it should be protected.” For example, an affidavit by the State Prosecutor that I obtained eight (8) documents from William Jefferson Clinton, pursuant to the subpoena I issued on ?/?/? after the investigation began, means the eight (8) documents may be categorized as something obtained pursuant to an investigation taken. An affidavit that I have eight (8) documents, the revelation on which, may hinder future prosecution, is not acceptable as allowing the court to make any decisions as to whether there is a statutory protection against disclosure. “Nothing more is asked of the State Prosecutor here than to give the court the basis upon which confidentiality is claimed. As in civil cases, the earmarking procedure set out in Kelch v. Mass Transit Admin., 287 Md. 223, 441 [411] A.2d 449 (1980) and Discovery Guideline No. 6 is needed so this judge knows what the parties are talking about.” The court ordered the OSP, under penalty of contempt, to produce the ordered index by a date and time certain.

It subsequently also amended the order to require the OSP to state “[t]he subject matter of the testimony (i.e., knowledge of whether taping was a violation of the law)” presented to the grand jury. The OSP timely noted its appeal to the Court of Special Appeals. It also sought a stay of the circuit court ¹²⁵ order, which the Court of Special Appeals granted. This Court, on its own motion, issued a writ of certiorari prior to any other proceedings in the intermediate appellate court and ordered that the stay that court entered continue in effect.

II

We granted certiorari to consider the propriety of the circuit court’s order to the OSP for the production and submission of a Vaughn index. That order, which is at the center of this case, is not the final order sought by the appellee—to disclose all documents requested by Judicial Watch, pursuant to its PIA request. Instead, this case challenges the circuit court’s ordering disclosure of information designed to assist it in determining that ultimate issue, i.e. a list containing the date, author, general subject matter and claim of privilege for each document the OSP claimed to be exempt from discovery. Consequently, the order under review is an interlocutory order.

Thus, the first question this review presents is whether the order is an appealable interlocutory order. Although the appellee did not file a motion challenging appealability, having contented itself to expressing, in its brief, “serious doubt” as to whether the order was properly appealable, the issue of appealability is a threshold one, which may be raised at any time by a party, even on appeal, and, indeed, which must be addressed, and will be, by the Court on its own motion, whether raised or not. Recognizing that “[decisions involving the creation of a Vaughn index usually arise in civil cases as interlocutory rulings that generally are not final for purposes of Md. Cts. & Jud. Proc.Code Ann. § 12-301, 5 ” the OSP nevertheless con ¹²⁶ tends that the circuit court’s order is properly appealable both under the collateral order doctrine, “which treats as final and appealable a limited class of orders which do not terminate litigation in the trial court,” 6 and under this Court’s decision in Baltimore City Department of Social Services v. Stein, 328 Md. 1 , 612 A.2d 880 (1992).

As we have .seen, the appellee disputes the applicability of both. We agree with the appellee with respect to the inapplicability of the collateral order doctrine—the order under review “is inherently intertwined with the merits of the action,” hence, does not conclusively determine the disputed issue, the propriety of the withholding of the documents responsive to the appellee’s PIA request. Although we believe that the Stein exception is somewhat different, we have concluded that it too is inapposite. The threshold distinction between this case and Stein is clear.

Stein was a non-party to the underlying action, as to whom the discovery disclosure order had all of the attributes of finality recognized by this Court. It settled the rights of the appellant and appellee in the records sought to be discovered, thereby, concluding that phase of the action. Stein, 328 Md. at 13 , 612 A.2d at 885-86 . Here, on the other hand, the OSP is a party, indeed, the critical party, in the underlying litigation and the order under review is an interlocutory order; it does not purport to resolve and, by definition, could not resolve, the underlying action.

Nevertheless, we hold that the trial court’s order is an appealable order. Section 10-623 of the PIA is concerned ¹²⁷ with the governmental denial of inspection requests. Subsection (c)(3) provides: “The court may: “(i) enjoin the State, a political subdivision, or a unit, official, or employee of the State or of a political subdivision from withholding the public record; “(ii) pass an order for the production of the public record that was withheld from the complainant; and “(iii) for noncompliance with the order, punish the responsible employee for contempt.” Thus, an order under this Act is an injunction, 7 the noncompliance with which is punishable by contempt. Maryland Code (1974, 1995 Repl.Vol.) § 12-303 of the Courts and Judicial Proceedings Article, addresses “[ajppeals from orders not final.” As relevant to the case subjudice, it provides: “A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case: # ^ $ “(3) An order: “(i) Granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellant has first filed his answer in the cause.” Despite the circuit court requiring the index to be in the detail required of discovery deadlines, the order in this case is not a discovery order.

While it may resemble a discovery order, it was issued pursuant to the other party’s request and in aid of elucidating the issues preliminary to a decision on the merits, the order in this case is an injunctive order, requiring disclosure to the court of information the court found to be necessary so that it “knows what the parties are talking about.” Indeed, it has been legislatively determined to be an injunction and to be directly enforceable by contempt. More ¹²⁸ over, the court’s order in this case was under penalty of contempt. In addition, the information ordered disclosed is, the OSP claims, protected by the Maryland grand jury laws. The PIA requires a custodian of records to deny inspection of a public record if it is privileged or confidential, by law, or if a state statute or the Rules adopted by the Court of Appeals prohibit it. § 10-615. 8 Moreover, “[sjecrecy is the lifeblood of the grand jury” and is critical to its proper functioning.

In re Criminal Investigation No. 437, 316 Md. 66, 76 , 557 A.2d 235, 240 (1989). See also, Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 , 99 S.Ct. 1667, 1672-73 , 60 L.Ed.2d 156, 164-65 (1979). Consequently, the harm against which protection is sought will have occurred the moment that the OSP submits the Vaughn index. Accordingly, we conclude that the circuit court order is immediately appealable.

III

The OSP offers two bases on which it contends the circuit court’s order should be reversed: it contravenes Maryland Rule 4-642 9 and it interferes with an ongoing criminal investi ¹²⁹ gation. As to the former, it argues that Rule 4-642(c) protects grand jury secrecy by prohibiting, unless permitted by law without necessity of court authorization, disclosure of matters occurring before the grand jury except as ordered by the court where the grand jury is convened after a hearing. Because the grand jury in this case was convened in Howard County, the OSP asserts, the Circuit Court for Howard County is the only circuit court with authority to order disclosure of matters occurring before its grand jury. The PIA, it continues, does not displace the provisions of § 4-642; consequently, the circuit court’s order was error.

Alternatively, the OSP argues that “even if the Public Information Act were applicable to disclosure of grand jury materials, it provides no basis for the compelled production of a Vaughn index that, by listing each document the State Prosecutor seeks to withhold, intrudes on an ongoing criminal investigation.” Since the PIA does not require disclosure of investigatory records compiled during pending criminal proceedings, and under Maryland law, the State is not required to make a particularized showing that the investigatory reports would interfere with that pending proceeding, it contends that “[t]he Baltimore County Circuit Court’s requirement that the State Prosecutor produce a detailed Vaughn index sweeps aside these well settled principles because it requires precisely the showing of particularized interference that this Court and others have consistently held need not be made in investigatory record exemption cases such as this.” ¹³⁰ The appellee counters that the issue “is not about breaching the confidentiality of grand jury proceedings. Rather, it is about how the Circuit Court, indeed how any court, can determine whether the withholding of documents pursuant to Maryland’s Public Information Act is or is not lawful.” Thus, its argument focuses on the PIA and its application, without even a single mention of Rule 4-262. The appellee asserts that the appellant misapplies cases interpreting the Public Information Act. Relying on Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 78 , 716 A.2d 258, 264 (1998), the appellee contends that, when confronted with a PIA request, a state agency is required to: 1) identify each withheld document sufficiently, and 2) demonstrate that public release of the documents would interfere with a pending criminal investigation.

Judicial Watch argues that the broad categorization of the documents offered by the OSP is vague, and does not satisfy the particularity requirement of Fioretti .

IV

Pursuant to § 10-615 of the PIA, as we have seen, the custodian must deny inspection of public records that are, by law, privileged or confidential or when inspection would be contrary to a State statute or rules adopted by the Court of Appeals. It is well settled that secrecy is essential to the proper workings of the grand jury system. See In re Criminal Investigation No. 437, 316 Md. at 76 , 557 A.2d at 240 (“Secrecy is the lifeblood of the grand jury.”); Coblentz v. State, 164 Md. 558, 566-67 , 166 A. 45, 49 (1933)(Grand jury secrecy “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 re Grand Jury Report, 152 Md. 616, 631 , 137 A. 370, 375-76 (1927). See also In re Criminal Investigation No. 51,843, 119 Md.App. 112, 117 , 704 A.2d 464, 467 , cert. denied, 349 Md. 235 , 707 A.2d 1329 (1998), in which the intermediate appellate court, quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 , 99 S.Ct. 1667, 1673 , 60 L.Ed.2d 156, 165 (1979), stated, on the subject: ¹³¹ “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, witnesses 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.” In Coblentz , we further explained: “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 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.” 164 Md. at 566 , 166 A. at 49 . It is for this reason that we require grand jurors 10 and stenographers 11 to take an oath of secrecy.

This Court has promulgated rules governing criminal investigations, ie., “inquiries into alleged criminal activities conducted by a grand jury or by a State’s Attorney pursuant to Article 10A, § 39A.” Maryland Rule 4--641. Maryland Rule 4-642 addresses the secrecy of such investigations and, indeed, provides the exclusive vehicle for obtaining disclosure of grand ¹³² jury records and documents, which, at times, is necessary to promote justice. In re Criminal Investigation No. 437, 316 Md. at 79 , 557 A.2d at 242 . It provides: “(a) Court records.—Files and records of the court pertaining to criminal investigations shall be sealed and shall be open to inspection only by order of the court. “(b) Hearings.—Hearings before the court relating to the 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. “(c) Motion for disclosure.—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.” The rule is clear, inspection of grand jury files and records, not otherwise allowed by law without one, is permitted only upon order of court, after hearing on a motion filed in the circuit court where the grand jury is convened. Maryland Rule 4-462(a) and (c).

Underscoring the confidentiality and secrecy of such proceedings, subsection (b) makes clear that, although required to be conducted on the record, hearings related to grand jury disclosures, as is true of those involving all criminal investigations, are required to exclude all persons whose presence is not necessary. The proceedings in this case were pursuant to the PIA, rather than the grand jury disclosure rule. Moreover, they were brought in a circuit court other than the one in which the grand jury, whose files and records were sought, was con ¹³³ vened. By proceeding via the PIA, rather than pursuant to the grand jury disclosure rule, an end run around grand jury secrecy has been attempted, which if successful, will undermine that process.

But the PIA does not sanction this proceeding. In fact, § 10-615 is clear that effect is to be given to court rules when to allow inspection of public records would contravene those rules. That is the case here. Thus, as in the case of the Federal FOIA, see Fiumara v. Higgins, 572 F.Supp. 1093, 1103 (D.N.H.1983); Manchester v. Drug Enforcement Admin., 823 F.Supp. 1259, 1268 (E.D.Pa.1993), the PIA does not trump or override the traditional rule of grand jury secrecy.

It follows that neither Baltimore County was the proper venue, nor the circuit court of that county the proper court to act in this case. In short, that court acted contrary to Rule 4-462 in entertaining and deciding this action. The most it should have done was transfer the matter to the Circuit Court for Howard County pursuant to Maryland Rule 2-327. 12 V. In the event that the Circuit Court for Baltimore County exercises its discretion to transfer the matter to Howard County, we offer the following for guidance on remand. To be sure, Maryland Rule 4-462 does not contain, or purport to prescribe a standard for trial courts to use when deciding grand jury disclosure issues.

This Court has addressed that issue, however, and determined that “when a court order for disclosure is requested, there must be a strong showing of a ‘particularized need’ before disclosure is permitted.” In re Criminal Investigation No. 437, 316 Md. at 82-83 , 557 A.2d at 243 . As to the nature of the “particularized need,” we clarified: ¹³⁴ “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