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Grand Jury Investigation Materials Are Not Subject University of Baltimore Law Forum Volume 30 Article 17 Number 1 Summer/Fall 1999 1999 Recent Developments: Office of thet S ate Prosecutor v. Judicial Watch, Inc.: Grand Jury Investigation Materials Are Not Subject To "Vaughn Index" under Maryland Public Information Act Because the Act Does Not Trump Grand Jury Secrecy Rule Brent Bolea Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Bolea, Brent (1999) "Recent Developments: Office of the State Prosecutor v. Judicial Watch, Inc.: Grand Jury Investigation Materials Are Not Subject To "Vaughn Index" under Maryland Public Information Act Because the Act Does Not Trump Grand Jury Secrecy Rule," University of Baltimore Law Forum: Vol. 30 : No. 1 , Article 17. Available at: http://scholarworks.law.ubalt.edu/lf/vol30/iss1/17 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Recent Developments Office of the State Prosecutor v. Judicial Watch, Inc. Grand Jury Investigation Materials Are Not Subject to "Vaughn Index" under Maryland Public Information Act because the Act Does Not Trump Grand Jury Secrecy Rule By Brent Bolea he Court of Appeals of The asp denied the request on the determining ifthe information sought TMaryland held that a court grounds that Judicial Watch was not was protected from disclosure under may not order a "Vaughn index" lUlder a person in interest, and that the PIA. Id. at 128, 737 A.2d at the Maryland Public Information Act information sought was part ofa law 598. The court first noted that ("PIA") to determine whether grand enforcement or prosecutorial section 10-615 ofthe PIA states that jury investigatory information shall investigatory file. Consequently, a "custodian must deny inspection of remain secret. Office of the State Judicial Watch filed a complaint in the public records that are, by law, Prosecutor v. Judicial Watch, Inc., Circuit Court for Baltimore County, privileged or confidential, or when 356 Md. 118, 737 A.2d 592 (1999). alleging that the OSP' s denial violated inspection would be contrary to a Rather, the court held that the the PIA. The trial court ordered the State statute or rules adopted by the decision whether to release grand jury OSP to submit a "Vaughn index" that court of appeals." Id. at 130, 737 information is dictated by applicable "word for word, paper for paper" A.2d at 598. Cognizant of this Maryland Grand Jury Rules applied identified all information sought. The section, the court emphasized the by a court in the grand jury's OSP made a timely appeal to the importance of secrecy to ''the proper jurisdicition. In so holding, the court Court of Special Appeals of workings ofthe grandjury system." ofappeals declared that the PIA right Maryland. The Court of Appeals of !d. In exploring the policies behind to disclosure does not override the Maryland granted certiorari on its own grand jury secrecy, the court traditional rule of grand jury motion prior to any action by the referenced two main cases; In re investigation secrecy. The court Court of Special Appeals of Criminal Investigation No. 437, additionally held that a trial court's Maryland. 316 Md. 66, 557 A.2d 235 (1933), order under Section 10-623 of the The court initiated its inquiry by and Douglas Oil Co. v. Petrol Stops PIA is an immediately appealable addressing the issue ofappealability, Northwest, 441 U.S. 211 (1979). ~lUlCtiOn. and held that the trial court's order In general, these cases pronounce On July 7, 1998, the Office of under the PIA to produce a "Vaughn secrecy as the "lifeblood ofthe grand the State Prosecutor ("OSP") index" was an injunction. Judicial jury," which encourages participation annolUlced a grand jury investigation Watch, Inc., 356 Md at 127, 737 by witnesses, prevents indictees from into Linda Tripp's alleged violations A.2d at 596. The court of appeals fleeing, and protects those accused ofMaryland' s Wiretap and Electronic concluded that the trial court's order but then exonerated by the grand jury Eavesdropping Statute. was immediately appealable by from public scorn. Id. at 130-31,737 Subsequently, Judicial Watch, Inc. reasoning that the harm against which A.2d at 598-99. ("Judicial Watch"), a conservative protection was sought would occur The court turned to Maryland watchdog group, filed with the asp with the submission ofthe "Vaughn Rule 4-642, which embodies the a request for "all documents and things index." Id. at 128,737 A.2d at 597. disclosure policies discussed in the related to, among others, Linda Tripp, The court then addressed the cases, and declared that the rule Lucianne Goldberg, Monica issue of whether the trial court erred lUlaffibiguously states that inspection Lewinsky, Kenneth Starr, and the in ordering the OSP to provide a ofgrand jury files can occur only when White House," pursuant to the PIA. detailed "Vaughn index" to assist it in a court so orders after a hearing 30.1 U. Bait. L.E. 95 Recent Developments convened on a motion filed in the (3) the request must be narrowly the request and in the manner of the jurisdiction where the grand jUI)' takes structured so as not to disclose State's Attorney for Howard County, place. Id at 131-32, 737 A.2d at unnecessary information." Id at 134, which is an enumerated agency. Id 599-600. The court emphasized how 737 A.2d at 600. The court noted Consequent! y, the court of appeals this rule was not followed in the circuit that none of these factors were found that the asp "stood in the court in the instant case. First, the asserted in the circuit court. Id Even shoes" ofan enumerated agency. Id proceeding regarding disclosure was if they had been, the court stated that The court determined in Judicial undertaken pursuant to the PIA when the request still would have failed not Watch, Inc., that because the asp it should have been under Maryland only because Judicial Watch was not was acting as an enumerated agency, Rule 4-642. Id at 132, 737 A.2d at a person in interest under the PIA, as and Judicial Watch was not a person 600. Second, the court noted that the it was unrelated to any party in the in interest under the PIA, there was Circuit Court for Baltimore County criminal investigation, but it was not a no explanation owed for the refusal was the improper venue in the wrong government or law enforcement entity. to disclose the requested information. jurisdiction. Id at 133,737 A.2d at Id Based on these findings, the court 600. Declaring that Judicial Watch The court of appeals also concluded that under the used the PIA in an attempt to analyzed the PIA to determine what circumstances ofthis case, a "Vaughn circumvent grand jury secrecy, the explanation, ifany, the asp had to index" cannot be ordered by a court court expounded its concern that supply for denial ofthe PIA request. to determine whether requested allowing such a practice would Id at 134, 737 A.2d at 600-01. information is immune from a PIA undermine the grand jUI)' process. Id According to the court, section 10- request. The court then held that the "PIA does 618(f)(1) does not require that an Although the public's interest in not trump or override the traditional enumerated agency provide an having free access to information rule ofgrandjury secrecy," and that explanation for denial unless a "person gathered by its government is far­ the trial court erred in hearing and in interest," as defined in section 10- reaching, it is not absolute. In certain deciding the case, in light ofMaryland 611 (e), is involved in the request. Id realms ofgovernment activity, secrecy Rule 4-642. Id at 136, 737 A.2d 601-02. Even if a is of more value to society than The court went on to provide person in interest is involved, the court disclosure. Such is the case in grand instructions to be utilized ifthe Circuit concluded that under Faulkv. State's jUI)' proceedings. This concept could Court for Baltimore County decided Attorney, 299 Md. 493,474 A.2d have been no better illustrated than to transfer the matter to Howard 880 (1984), the agency need only under the facts at hand. The Court of County. Id The court explained that provide a "generic" determination that Appeals of Maryland has struck the the applicable standard for a court disclosure would interfere with a proper balance in this case between deciding grand jUI)' disclosure issues pending criminal investigation. Id at the public's right to know and the is whether there is a strong showing 137, 737 A.2d at 602. government's need to keep certain of particularized need for the Furthermore, the court held that information confidential. information. Id. In defining an enumerated agency under section "particularized need," the court of 10-618 was presumed to have appeals analyzed In re Criminal compiled records for a law Investigation, 316 Md. 66, 557 enforcement or prosecutorial A.2d 235 (1933), which states that: purpose. Id at 140,737 A.2dat604. "( 1) the material sought must be Even though the asp is not an necessary to avoid possible injustice; enumerated agency, the court stated (2) the need for disclosure must that it should receive the benefit ofthe outweigh the need for secrecy; and presumption because it was acting at 30.1 U.
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