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Office of the State Prosecutor V. Judicial Watch, Inc. No. 9, September Term, 1999 HEADNOTE: INTERLOCUTORY APPEAL; PUBLIC INFORM

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Office of the State Prosecutor V. Judicial Watch, Inc. No. 9, September Term, 1999 HEADNOTE: INTERLOCUTORY APPEAL; PUBLIC INFORM Office of the State Prosecutor v. Judicial Watch, Inc. No. 9, September Term, 1999 HEADNOTE: INTERLOCUTORY APPEAL; PUBLIC INFORMATION ACT; GRAND JURY PROCEEDINGS Circuit court order pursuant to the State’s Public Information Act to disclose information from grand jury proceedings was an injunction and therefore immediately appealable. GRAND JURY PROCEEDINGS; VENUE Under Maryland Rule 4-642, Circuit court had no authority to require disclosure of information in grand jury proceedings conducted outside of the county. Circuit Court for Baltimore County Case No. 03-C-98-007868 IN THE COURT OF APPEALS OF MARYLAND NO. 9 SEPTEMBER TERM, 1999 OFFICE OF THE STATE PROSECUTOR v. JUDICIAL WATCH, INC. Bell, C. J. Eldridge Rodowsky Raker Wilner Cathell, Karwacki, Robert L. (Retired, specially assigned) JJ. Opinion by Bell, C. J. FILED: September 21, 1999 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 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 1The reference is to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), in which the Circuit Court of Appeals for the District of Columbia required the responding party to provide a list of documents in possession, setting forth the date, author, general subject matter and claim of privilege for each document claimed to be exempt from discovery. See also, Lewis v. I.R.S., 823 F.2d 375, 377 n. 3 (9th Cir. 1987) (“A Vaughn index is a system of itemizing and indexing that correlates each of the government’s justifications for its refusal to disclose the documents with the actual portion of the documents at issue.”). 2Maryland Code (1957, 1995 Repl. Vol., 1997 Supp.) § 9-1203 (b) provides: “At the request of either the Governor, Attorney General, General Assembly or State’s Attorney, the State Prosecutor may investigate criminal activity that is conducted or committed partly in this State and partly in another jurisdiction, or that is conducted or committed in more than one political subdivision of the State.” 2 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. 3 Md. Code (1974, 1995 Repl. Vol., 1997 Supp.) § 10-402 of the Courts & Judicial Proceedings Article provides, in pertinent part: “(a) Unlawful acts.- Except as otherwise specifically provided in this subtitle it is unlawful for any person to: “(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; “(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this subtitle; or “(3) Wilfully use, or endeavor to use, the contents of any wire, oral, or electronic communication in violation of this subtitle.” 3 Tripp, Ms. Goldberg and Ms. Lewinsky. The grounds he offered to 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 4 which it argued that all of the withheld documents4 pertained to the ongoing grand jury 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 A.2d 449 (1980) and Discovery Guideline No. 6 is needed so this judge knows what the parties are talking about.” 4In the affidavit, the OSP stated with respect to the withheld documents: “The documents sought fall into several categories: investigative reports; physical evidence, including documentary evidence; witness statements; memoranda of interview[s] with third parties; attorney and investigators’ work papers; correspondence pertaining to requests for information; and internal memoranda reflecting the scope and duration of the investigation.” 5 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 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.
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