Opinion
Filed: March 7, 2006.
This Court's Standing Committee on Rules of Practice and Procedure having submitted its One Hundred Fifty-Sixth Report to the Court recommending adoption of proposed amendments to Rules 16-1002 and 16-1008, all as set forth in that Report published in the Maryland Register, Vol. 32, Issue 23, pages 1819-1822 (November 14, 2005); and
The Rules Committee having submitted a Supplement to the One Hundred Fifty-Sixth Report to the Court dated December 16, 2005 recommending adoption on an emergency basis of proposed amendments to Rule 16-1006 and recommending additional amendments to Rule 16-1008; and
This Court, by Rules Order dated January 10, 2006, having adopted amendments to Rule 16-1006 and having deferred action on the proposed amendments to Rules 16-1002 and 16-1008; and
This Court having considered at open meetings, notices of which were posted as prescribed by law, all those proposed rules changes, together with comments received, and making certain amendments to the proposed rules changes on its own motion, it is this 7th day of March, 2006,
ORDERED, by the Court of Appeals of Maryland, that amendments to Rules 16-1002 and 16-1008 be, and they are hereby, adopted in the form attached to this Order; and it is further
ORDERED that the rules changes hereby adopted by this Court shall govern the courts of this State and all parties and their attorneys in all actions and proceedings, and shall take effect and apply to all actions commenced on or after July 1, 2006, and insofar as practicable to all actions then pending; and it is further
ORDERED that a copy of this Order be published in the next issue of the Maryland Register.
/s/ Robert M. Bell __________________ Robert M. Bell
/s/ Irma S. Raker _________________ Irma S. Raker
/s/ Alan M. Wilner __________________ Alan M. Wilner
/s/ Dale R. Cathell ___________________ Dale R. Cathell
/s/ Glenn T. Harrell, Jr. _________________________ Glenn T. Harrell, Jr.
/s/ Lynne A. Battaglia ______________________ Lynne A. Battaglia
/s/ Clayton Greene, Jr. _______________________ Clayton Greene, Jr.
MARYLAND RULES OF PROCEDURE TITLE 16 — COURTS, JUDGES, AND ATTORNEYS CHAPTER 1000 — ACCESS TO COURT RECORDS
AMEND Rule 16-1002 to clarify that the Rules in Title 16, Chapter 1000 do not limit access to case records by parties and counsel of record, as follows:
Rule 16-1002. GENERAL POLICY
(a) Presumption of Openness
Court records maintained by a court or by another judicial agency are presumed to be open to the public for inspection. Except as otherwise provided by or pursuant to the Rules in this Chapter, the custodian of a court record shall permit a person, upon personal appearance in the office of the custodian during normal business hours, to inspect the record.
(b) Protection of Records
To protect court records and prevent unnecessary interference with the official business and duties of the custodian and other court personnel,
(1) a clerk is not required to permit inspection of a case record filed with the clerk for docketing in a judicial action or a notice record filed for recording and indexing until the document has been docketed or recorded and indexed; and
(2) the Chief Judge of the Court of Appeals, by administrative order, a copy of which shall be filed with and maintained by the clerk of each court, may adopt procedures and conditions, not inconsistent with the Rules in this Chapter, governing the timely production, inspection, and copying of court records.
Committee note: It is anticipated that, by Administrative Order, entered pursuant to section (b) of this Rule, the Chief Judge of the Court of Appeals will direct that, if the clerk does not permit inspection of a notice record prior to recording and indexing of the record, (1) persons filing a notice record for recording and indexing include a separate legible copy of those pages of the document necessary to identify the parties to the transaction and the property that is the subject of the transaction and (2) the clerk date stamp that copy and maintain it in a separate book that is subject to inspection by the public.
(c) Records Admitted or Considered as Evidence
Unless the court expressly orders otherwise, a court record that has been admitted into evidence in a judicial action or that a court has considered as evidence or relied upon for purposes of deciding a motion is subject to inspection, notwithstanding that the record otherwise would not have been subject to inspection under the Rules in this Chapter.
(d) Fees
(1) In this Rule, "reasonable fee" means a fee that bears a reasonable relationship to the actual or estimated costs incurred or likely to be incurred in providing the requested access.
(2) Unless otherwise expressly permitted by the Rules in this Chapter, a custodian may not charge a fee for providing access to a court record that can be made available for inspection, in paper form or by electronic access, with the expenditure of less than two hours of effort by the custodian or other judicial employee.
(3) A custodian may charge a reasonable fee if two hours or more of effort is required to provide the requested access.
(4) The custodian may charge a reasonable fee for making or supervising the making of a copy or printout of a court record.
(5) The custodian may waive a fee if, after consideration of the ability of the person requesting access to pay the fee and other relevant factors, the custodian determines that the waiver is in the public interest.
(e) New Court Records
(1) Except as expressly required by other law and subject to Rule 16-1008, neither a custodian nor a court or other judicial agency is required by the Rules in this Chapter to index, compile, re-format, program, or reorganize existing court records or other documents or information to create a new court record not necessary to be maintained in the ordinary course of business. The removal, deletion, or redaction from a court record of information not subject to inspection under the Rules in this Chapter in order to make the court record subject to inspection does not create a new record within the meaning of this Rule.
(2) If a custodian, court, or other judicial agency (A) indexes, compiles, re-formats, programs, or reorganizes existing court records or other documents or information to create a new court record, or (B) comes into possession of a new court record created by another from the indexing, compilation, re-formatting, programming, or reorganization of other court records, documents, or information, and there is no basis under the Rules in this Chapter to deny inspection of that new court record or some part of that court record, the new court record or a part for which there is no basis to deny inspection shall be subject to inspection.
(f) Access by Judicial Employees, Parties, and Counsel of Record
The Rules in this Chapter address access to court records by the public at large. and The Rules do not limit access to court records by judicial officials or employees in the performance of their official duties, or to a case record by a party or counsel of record in the action.
Source: This Rule is new.
MARYLAND RULES OF PROCEDURE TITLE 16 — COURTS, JUDGES, AND ATTORNEYS CHAPTER 1000 — ACCESS TO COURT RECORDS
AMEND Rule 16-1008 to add a new subsection (a)(3)(B) to prevent remote access to certain information in certain categories of actions, to correct a grammatical error in section (c), and to make certain stylistic changes, as follows:
Rule 16-1008. ELECTRONIC RECORDS AND RETRIEVAL
(a) In General
(1) Subject to the conditions stated in this Rule, a court record that is kept in electronic form is open to inspection to the same extent that the record would be open to inspection in paper form.
(2) Subject to the other provisions of this Rule and any other law or any administrative order of the Chief Judge of the Court of Appeals, a custodian, court, or other judicial agency, for the purpose of providing public access to court records in electronic form, is authorized but not required:
(A) to convert paper court records into electronic court records;
(B) to create new electronic records, databases, programs, or computer systems;
(C) to provide computer terminals or other equipment for use by the public;
(D) to create the ability to inspect or copy court records through remote access; or
(E) to convert, supplement, modify, or replace an existing electronic storage or retrieval system.
(3) (A) Subject to the other provisions of this Rule, a custodian may limit access to court records in electronic form to the manner, form, and program that the electronic system used by the custodian, without modification, is capable of providing. If a custodian, court, or other judicial agency converts paper court records into electronic court records or otherwise creates new electronic records, databases, or computer systems, it shall, to the extent practicable, design those records, databases, or systems to facilitate access to court records that are open to inspection under the Rules in this Chapter.
(B) Except for identifying information relating to law enforcement officers, other public officials acting in their official capacity, and expert witnesses, a custodian shall prevent remote access to the address, telephone number, date of birth, e-mail address, and place of employment of a victim or nonparty witness in (1) a criminal action, (2) a juvenile delinquency action under Title 3, Subtitle 8A of the Courts Article, (3) an action under Title 4, Subtitle 5 of the Family Law Article (domestic violence), or (4) an action under Title 3, Subtitle 15 of the Courts Article (peace order).
(4) Subject to subsection (a)(3)(B) of this Rule and procedures and conditions established by administrative order of the Chief Judge of the Court of Appeals, a person may view and copy electronic court records that are open to inspection under the Rules in this Chapter:
(A) at computer terminals that a court or other judicial agency makes available for public use at the court or other judicial agency; or
(B) by remote access that the court or other judicial agency makes available through dial-up modem, web site access, or other technology.
(b) Current Programs Providing Electronic Access to Databases
Any electronic access to a database of court records that is provided by a court or other judicial agency and is in effect on October 1, 2004 may continue in effect, subject to review by the Technology Oversight Board for consistency with the Rules in this Chapter. After review, the Board may make or direct any changes that it concludes are necessary to make the electronic access consistent with the Rules in this Chapter.
(c) New Requests for Electronic Access to or Information from Databases
(1) A person who desires to obtain electronic access to or information from a database of court records to which electronic access is not then immediately and automatically available shall submit to the Court Information Office a written application that describes the court records to which access is desired and the proposed method of achieving that access.
(2) The Court Information Office shall review the application and may consult the Judicial Information Systems. Without undue delay and, unless impracticable, within 30 days after receipt of the application, the Court Information Office shall take one of the following actions:
(A) The Court Information Office shall approve the application if it determines that the proposal will not permit application does not request access to court records that are not subject to inspection under the Rules in this Chapter and will notinvolve impose a significant fiscal, personnel, or operational burden on any court or judicial agency, it shall approve the application. The approval may be conditioned on the applicant's paying or reimbursing the court or agency for any additional expense that may be incurred in implementing theproposal application.
(B) If the Court Information Office is unable to make the findings provided for in subsection (c)(2)(A), it shall inform the applicant and:
(i) deny the application;
(ii) offer to confer with the applicant about amendments to the application that would meet the concerns of the Court Information Office; or
(iii) if the applicant requests, refer the application to the Technology Oversight Board for its review.
(C) If the application is referred to the Technology Oversight Board, the Board shall determine whether the proposal is approval of the application would be likely to permit access to court records or information that are not subject to inspection under the Rules in this Chapter, create any undue burden on a court, other judicial agency, or the judicial system as a whole, or create undue disparity in the ability of other courts or judicial agencies to provide equivalent access to court records. In making those determinations, the Board shall consider, to the extent relevant:
(i) whether the data processing system, operational system, electronic filing system, or manual or electronic storage and retrieval system used by or planned for the court or judicial agency that maintains the records can currently provide the access requested in the manner requested and in conformance with Rules 16-1001 through 16-1007, and, if not, what changes or effort would be required to make those systems capable of providing that access;
(ii) any changes to the data processing, operational electronic filing, or storage or retrieval systems used by or planned for other courts or judicial agencies in the State that would be required in order to avoid undue disparity in the ability of those courts or agencies to provide equivalent access to court records maintained by them;
(iii) any other fiscal, personnel, or operational impact of the proposed program on the court or judicial agency or on the State judicial system as a whole;
(iv) whether there is a substantial possibility that information retrieved through the program may be used for any fraudulent or other unlawful purpose or may result in the dissemination of inaccurate or misleading information concerning court records or individuals who are the subject of court records and, if so, whether there are any safeguards to prevent misuse of disseminated information and the dissemination of inaccurate or misleading information; and
(v) any other consideration that the Technology Oversight Board finds relevant.
(D) If, upon consideration of the factors set forth in subsection (c)(2)(C) of this Rule, the Technology Oversight Board concludes that the proposal would create (i) an undue fiscal, personnel, or operational burden on a court, other judicial agency, or the judicial system as a whole, or (ii) an undue disparity in the ability of other courts or judicial agencies to provide equivalent access to judicial records, the Board shall inform the Court Information Office and the applicant in writing of its conclusions. The Court Information Office and the applicant may then discuss amendments to the application to meet the concerns of the Board, including changes in the scope or method of the requested access and arrangements to bear directly or reimburse the appropriate agency for any expense that may be incurred in providing the requested access and meeting other conditions that may be attached to approval of the application. The applicant may amend the application to reflect any agreed changes. The application, as amended, shall be submitted to the Technology Oversight Board for further consideration.
Source: This Rule is new.