Immanuel v. Comptroller of the Treasury

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1520
September Term, 2014
HENRY IMMANUEL
v.
COMPTROLLER OF THE TREASURY
Eyler, Deborah S.,
Woodward,
Berger,
JJ.
Opinion by Woodward, J.
Filed: November 25, 2015
On November 3, 2011, Henry Immanuel, appellant, sent a Maryland Public
Information Act (MPIA) request to the Comptroller of the Treasury, appellee.
Immanuel requested a list of the top 5,000 “unclaimed property accounts . . . that
have been with your agency for 24 months or more . . . formatted from largest
account values to smallest account values.” The Comptroller denied Immanuel’s
MPIA request on the grounds that the information requested contained individual
financial information, which is prohibited from disclosure under the MPIA. See
Md. Code (2014), § 4-336(b) of the General Provisions Article (“GP”).
On May 4, 2012, Immanuel filed a petition for judicial review of the
Comptroller’s denial in the Circuit Court for Wicomico County. By order dated
July 13, 2012, the court directed the Comptroller to comply with Immanuel’s
MPIA request. Immanuel also filed a motion to seal the case record on the
grounds that the record contained his trade secrets, which the court granted. The
Comptroller filed an appeal to this Court, which reversed and remanded the case in
a published opinion, Comptroller of Treasury v. Immanuel, 216 Md. App. 259(2014) (“Immanuel I”). In Immanuel I, we concluded that “Immanuel should
emerge on remand with a list of claims that tracks the Comptroller’s disclosure
obligations under the Abandoned Property Act.” Id. at 275.
On remand, on July 21, 2014, the circuit court ordered Immanuel to submit
a modified MPIA request, limited to accounts received by the Comptroller within
365 days with a value of $100 or greater, without any sorting by value or other
financial information. In addition, the court vacated its order to seal.
On appeal, Immanuel presents two questions for our review, which we have
slightly rephrased:
1. Did the circuit court err or abuse its discretion by not
following this Court’s mandate on remand?
2. Did the circuit court err by vacating its order to seal?
We answer both questions in the negative and, accordingly, affirm the
judgment of the circuit court.
BACKGROUND
The background for this case is set forth in Immanuel I:
In his role as legal custodian of millions of dollars’
worth of unclaimed property, the Comptroller enters and
stores in a database information regarding the property he is
holding and who might be entitled to claim it. As the
Comptroller receives each piece of abandoned property, his
staff logs data about the property, its value, and the likely
owner into the Comptroller’s database. The Comptroller is
required by the Abandoned Property Act to publish
annually, in local newspapers, the names and last known
addresses of those individuals who appear to be the owners
of property valued at $100 or more, although the published
list does not disclose either the nature of unclaimed items of
property or their value.
[ ] Immanuel is a “tracer,” someone who locates the
owners of unclaimed property held by the Comptroller and,
for a fee, assists those people in obtaining their property.
On November 3, 2011, [ ] Immanuel sent a letter to the
Comptroller requesting “a printout of all unclaimed property
accounts” that had been unclaimed for two years or longer.
In addition to requesting publicly available information—
specifically, the names and last-known addresses of those
entitled to the property—he asked the Comptroller to format
the list “from largest account values to smallest account
values” and to provide him “with the listing of the top 5,000
accounts after this formatting is done.” In his request, [ ]
2
Immanuel acknowledged that the Public Information Act
prohibited him from receiving “information concerning the
specific value of each account or a description of the
property,” and he asked that, once the list was sorted, the
specific values be removed. Although the Comptroller, with
the help of his information technology (“IT”) department,
has the ability to perform [ ] Immanuel’s request, the
Comptroller denied it.
Since 1978, [ ] Immanuel has submitted requests
asking for lists of names and addresses sorted by value. The
Comptroller granted those requests until 1992. That year,
however, the Attorney General issued an opinion stating that
the Public Information Act prohibited the Comptroller from
disclosing the monetary value of individual items of
unclaimed property to members of the public. [ ] Immanuel,
nonetheless, made five other requests in the years since, all
five of which, including the one at issue, the Comptroller
denied.
[On May 4, 2012,] Immanuel filed a petition seeking
judicial review of the Comptroller’s most recent denial in
the Circuit Court for Wicomico County. The court held a
hearing [on June 7, 2012,] and took testimony from [ ]
Immanuel and Eric Eichler, the Assistant Manager of the
Comptroller’s Unclaimed Property Unit. According to [ ]
Eichler, the Comptroller’s IT staff logs information about
each piece of unclaimed property into a database as the
Comptroller receives it. From there, the IT staff can extract
and sort data from the database, and does so for non-agency
requesters with enough regularity that he maintains (and
publishes on a “form letter”) a schedule of fees. [ ] Eichler
acknowledged that the Comptroller maintains “a list
available for the public if they need to, but it’s not sorted by
dollar value.” He also testified that the Comptroller extracts
and produces lists from this database in batches of 10,000
records in the normal course, for which it charges $500, and
that the Comptroller’s fee schedule includes at least some
forms of sorting. (“Q. But if my client were willing to pay
for the [dollar-value] sort, doesn’t this fee schedule cover
that potential? A. Yes, depending on what the sort is, I
assume.”)
3
At the conclusion of the hearing, the circuit court
declared that “[t]aking the additional step of formatting the
list before redacting the financial information does nothing
to reveal prohibited information.” Then, observing that
“disclosure of public records is favored” in Maryland, the
court granted [ ] Immanuel the relief he sought and ordered
the Comptroller to provide him with the information in the
format he had requested.
Id. at 263-65 (footnotes omitted).
The circuit court issued an Opinion and Order on July 13, 2012, ordering
the Comptroller to “comply with [Immanuel’s MPIA] request and provide the
unclaimed property records in the manner requested therein.” On July 23, 2012,
Immanuel filed a Motion to Seal or Otherwise Limit Inspection of a Case Record
(Rule 16-1009(a)(1)(A)) (“Motion to Seal”) on the grounds that the record
contained his trade secrets. On August 9, 2012, the court granted Immanuel’s
motion to seal the case record (“order to seal”). Also on August 9, 2012, the
Comptroller filed his notice of appeal of the court’s July 13, 2012 Opinion and
Order.
On April 18, 2013, Immanuel filed a Motion to Seal the Record with this
Court. We granted Immanuel’s Motion to Seal the Record on May 9, 2013.
On January 29, 2014, this Court decided Immanuel I. We stated therein:
[W]e hold that, in light of the Abandoned Property Act, the
request seeks information that the Comptroller is required to
disclose. That said, we also hold that a list sorted by dollar
value would reveal additional individual financial
information [that] Immanuel is not entitled to have, and we
find that his request may be overbroad in one other way as
well. So although [ ] Immanuel is entitled to the bulk of the
information he has requested, we reverse the judgment of
4
the circuit court and remand for further proceedings for
the limited purpose of determining the precise scope and
format of the list the Comptroller must produce.
216 Md. App. at 262-63 (emphasis added).
On February 5, 2014, Immanuel filed a second MPIA request with the
Comptroller, asking “that the top 100 accounts be made available to [him], include
all data that is available to [him] that will not be considered private or
confidential.”
On February 5, 2014, Immanuel filed a Motion to Seal the Opinion with
this Court, requesting that we change the designation of Immanuel I to unreported.
Also, on February 20, 2014, Immanuel filed a Motion to Redact the Opinion with
this Court, requesting that we redact the opinion of Immanuel I and change its
designation to unreported. On February 28, 2014, the Comptroller filed with this
Court a motion for partial reconsideration and opposition to Immanuel’s motions
to seal and redact the opinion. The Comptroller noted in its motion that
Immanuel’s February 5, 2014 MPIA request
demonstrates [that] the Court’s decision could be read to
permit requesters to obtain comparative financial
information about unclaimed property owners and to
effectively allow these requesters to create their own
ranking of claims by value—a type of information that this
Court explicitly held was exempt from disclosure. The
Comptroller therefore respectfully requests that the Court
reconsider its decision and hold that [ ] Immanuel is not
entitled to a list of any “top number” of claims.
On March 5, 2014, this Court denied Immanuel’s motions to seal and redact
Immanuel I. On March 27, 2014, we denied the Comptroller’s motion for partial
5
reconsideration, because “[t]he issues raised by the Comptroller in the Motion for
Partial Reconsideration must be considered, in the first instance, by the circuit
court and upon an appropriate record.”
On July 11, 2014, the Comptroller filed a Memorandum of Law on Remand
with the circuit court. Immanuel filed his own memorandum on July 17, 2014.
On July 21, 2014, the court held a hearing pursuant to our remand order. After the
hearing and on the same day, the court issued an Order (1) directing Immanuel to
submit a “modified” MPIA request, limited to accounts received by the
Comptroller within 365 days with a value of $100 or greater, without any sorting
by value or other financial information, and (2) ordering the Comptroller to
comply with such request. In addition, the court denied Immanuel’s oral request
to continue to seal the case and vacated its earlier order to seal. On August 18,
2014, Immanuel filed a timely notice of appeal.
STANDARD OF REVIEW
Maryland Rule 8-604(d)(1) provides that, “[u]pon remand, the lower court
shall conduct any further proceedings necessary to determine the action in
accordance with the opinion and order of the appellate court.” Rule 8-606(e)
states that, upon receiving the appellate court’s mandate, “the lower court shall
proceed in accordance with its terms.”
This Court has stated the following regarding a trial court’s obligations
following the issuance of an appellate opinion:
While the Maryland cases and rules describe generally
6
the importance of the court’s mandate and the procedures to be
followed by the trial court—i.e., “in accordance with the tenor
and direction thereof”—they have not clearly described exactly
what comprises the complete “order” or “judgment” of the court.
As we construe these rules, and the cases discussing them, it is
apparent that, in Maryland, the opinion, at the very least, may be
an integral part of the appellate court’s order or mandate when
that order or mandate provides for a remand for proceedings
consistent with the opinion. Moreover, when it is apparent from
the opinion itself that a simplified “order” or mandate, e.g.,
“Judgment Reversed,” is ambiguous, then the opinion may be
referred to and considered an integral part of that mandate.
There may be, as we discuss infra, many types of unitary
judgments or mandates, as opposed to multiple, severable parts
of judgments, in which such a “Judgment Reversed” order or
mandate would not be ambiguous and there would be no need to
refer to the opinion. Generally, however, any direction in an
order or mandate that proceedings on remand are to be
consistent with the opinion would necessarily require the
opinion to be considered as an integral part of the judgment.
This position is consistent with the law of mandates as stated by
most, but not all, of the few foreign jurisdictions that have
squarely addressed the issue.
Harrison v. Harrison, 109 Md. App. 652, 665-66 (emphasis added), cert. denied,
343 Md. 564 (1996).
DISCUSSION
In Immanuel I, we concluded our opinion by stating:
[W]e reverse the judgment below and remand for further
proceedings for the limited purpose of allowing the circuit
court to determine the precise boundaries of the
production the Comptroller must make to [ ] Immanuel.
In practical terms, [ ] Immanuel should emerge on
remand with a list of claims that tracks the
Comptroller’s disclosure obligations under the
Abandoned Property Act, but that is not sorted by dollar
value.
216 Md. App. at 275 (emphasis added).
7
Our mandate then read:
JUDGMENT OF THE CIRCUIT COURT FOR
WICOMICO COUNTY REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. COSTS TO BE
DIVIDED EQUALLY BETWEEN THE PARTIES.
Id.
Following a hearing, the circuit court issued the following order on July 21,
2014:
ORDERED, that [Immanuel] submit a modified
request for information to the [Comptroller] that is limited to
information received by the [Comptroller] within 365 days
prior to the date of this Order, said information to be limited
to an alphabetical list of the names and last known addresses
of individuals owning property with a value of one hundred
dollars or more; said information shall not include a list of
claims sorted in order of value or other financial
information;
It is further ORDERED that the [Comptroller]
comply with any subsequent request for information made
by [Immanuel] that is consistent with this Order, in the
format requested by [Immanuel], subject to costs
customarily charged by the [Comptroller]; and it is further
ORDERED that [Immanuel’s] request for attorney’s
fees is denied; [Immanuel’s] oral request to seal this case is
denied; and this court’s earlier order to seal this case is
vacated.
I. Circuit Court’s Order on Remand
Immanuel argues that the circuit court erred by not following this Court’s
mandate on remand. First, Immanuel contends that the court erred by ignoring
“the instructions given to it by this Court and ordered [him] to submit a new
8
modified request for information and thereby start the entire [M]PIA request all
over.” Immanuel contends that Immanuel I did not alter the circuit court’s original
judgment ordering the Comptroller to comply with his MPIA request within thirty
days, and that the court should have ordered the Comptroller to submit an
alphabetized list of the top 5,000 claims, without any information regarding the
monetary value of such claims, to Immanuel within thirty days. Next, Immanuel
argues that the circuit court’s order “went beyond the purpose of the remand” by
requiring that his new request be limited to all accounts over $100 received by the
Comptroller within 365 days prior to the date of the order, because (1) the circuit
court “did not specifically order the Comptroller to provide the list of [the top]
5,000 accounts,” and (2) the 365-day requirement “only applies to the
Comptroller’s publication of recently obtained abandoned property,” and “ignores
the legislative requirement that [Immanuel’s] fee agreement would be
unenforceable if 24 months (730 days) had not passed since the property was
delivered to the Comptroller’s Office.”
The Comptroller responds that the circuit court complied with this Court’s
remand instructions by entering an order that tracked the requirements of the
Abandoned Property Act. The Comptroller argues that the circuit court’s decision
to require Immanuel to submit a modified request was an appropriate exercise of
the discretion accorded it by this Court to “determine the appropriate scope and
mechanics of the Comptroller’s production.” See Immanuel I, 216 Md. App. at
263. According to the Comptroller, “this issue will soon become moot, as the
9
Comptroller will, in the near future, be producing to [ ] Immanuel the information
described in the circuit court’s order without waiting for [ ] Immanuel to submit a
modified request.”
Next, the Comptroller argues that Immanuel continues to seek a value-
based list of claims to which he is not entitled, because the Abandoned Property
Act only allows for disclosure of property valued at $100 or more, not “other
value-based differential of claims.” According to the Comptroller, “a list of the
most valuable 5,000 claims necessarily provides additional individual financial
information about the size of those 5,000 claims relative to” claims that would
appear on the larger list of property valued at $100 or more. Furthermore, the
Comptroller contends that,
if [ ] Immanuel were to succeed in requesting a list of the
5,000 most valuable claims, it is unclear what would stop
him from subsequently submitting iterative requests for the
4,900 most valuable claims, the 4,800 most valuable claims,
and on down until he had a tiered list providing essentially
the same information this Court has already said he is not
entitled to receive about the relative value of claims.
According to the Comptroller, such contention is not “idle speculation,” because
Immanuel has already made a second MPIA request for a list of the top 100
claims.
As an initial matter, we agree with the Comptroller that Immanuel’s claim
of error relating to the trial court’s order requiring a new MPIA request is moot,
because the Comptroller agreed to disclose the information specified in the circuit
court’s order without a new MPIA request. At oral argument before this Court,
10
the Comptroller’s counsel disclosed that, on the day before oral argument, he
e-mailed to Immanuel’s counsel a list of all claims of unclaimed property in its
possession, with no restriction by time. This list contained approximately 900,000
claims.
As for Immanuel’s contention that the circuit court’s order went beyond the
purpose of the remand, we hold that the circuit court did not err or abuse the
discretion that we delegated to it. In Immanuel I, instead of specifying exactly
which information Immanuel was entitled to receive from the Comptroller, we
delegated this authority to the circuit court “to determine the precise boundaries of
the production the Comptroller must make.” 216 Md. App. at 275. Rather than
stating that the Comptroller should disclose a list of the top 5,000 claims from the
past twenty-four months or older, as Immanuel had requested, we stated that
“Immanuel should emerge on remand with a list of claims that tracks the
Comptroller’s disclosure obligations under the Abandoned Property Act.” Id.
(emphasis added).
The Abandoned Property Act requires the Comptroller to disclose (1) all
claims valued at $100 or greater, not merely the top 5,000 claims; (2) limits the list
of claims to those received within 365 days, not twenty-four months or more; and
(3) requires the Comptroller to list such claims in alphabetical order of the owners’
names, without disclosing any financial information. See Md. Code (2013), § 17-
311 of the Commercial Law (III) Article (“CL”). Because the circuit court
ordered the Comptroller to disclose to Immanuel
11
information received by the [Comptroller] within 365 days
prior to the date of this Order, said information to be limited
to an alphabetical list of the names and last known addresses
of individuals owning property with a value of one hundred
dollars or more; said information shall not include a list of
claims sorted in order of value or other financial
information[,]
its order properly tracks the Comptroller’s disclosure obligations under the
Abandoned Property Act, and thus complies with our instructions to that court.
See Immanuel I, 216 Md. App. at 275.
On remand, the circuit court received memoranda of law from both parties
and held a hearing. The new information obtained by the court included
Immanuel’s new MPIA request to the Comptroller for the “top 100” most valuable
claims. We agree with the Comptroller’s contention that (1) not only does a list of
the top 5,000 claims reveal additional individual financial information, namely
that such 5,000 claims are more valuable than all other claims valued over $100
that the Comptroller is required to disclose; but (2) if we ordered the Comptroller
to disclose the top 5,000 claims, Immanuel would be able to bypass our express
prohibition against value-ranked claims by subsequent MPIA requests like the one
that he has already submitted. See Immanuel I, 216 Md. App. at 274 (stating that a
value-ordered list “discloses incremental financial information about the claim
beyond the information the Abandoned Property Act requires the Comptroller to
disclose”). Simply put, the only individual financial information that the
Abandoned Property Act requires the Comptroller to disclose is that the public list
12
contains claims valued at over $100 and received within the last 365 days.1 See
CL § 17-311.
At oral argument before this Court, the Comptroller’s counsel stated that,
although the circuit court’s order was proper because it tracked the Comptroller’s
disclosure obligations under the Abandoned Property Act, the Comptroller does
not object to releasing a list of claims older than 365 days in response to an MPIA
request. In fact, as stated above, the Comptroller released to Immanuel’s counsel a
list of every single claim valued at over $100 that it had on file, a total of over
900,000 claims. The Comptroller stated that it would not object to MPIA requests
for claims limited by time (e.g., all claims received in within the last five years),
but it would continue to object to MPIA requests for claims ranked or identified by
value (e.g., the top 500 most valuable claims or all claims over one million
dollars). We agree with the Comptroller that a list of any specific number of
claims ranked or identified by value is barred from disclosure by the MPIA, as
limited by the Abandoned Property Act, because releasing such information would
1
Although Immanuel is correct that the Abandoned Property Act requires
him to wait two years before assisting in the recovery of abandoned property, such
requirement concerns Immanuel’s own obligations under the Act, not the
“Comptroller’s disclosure obligations” under the Act. See Md. Code (2013),
§ 17-325 of the Commercial Law (III) Article (“All agreements to pay
compensation to recover or assist in the recovery of property made within 24
months of the date the property is paid or delivered to the abandoned property
office are unenforceable.”); see also Comptroller of Treasury v. Immanuel, 216
Md. App. 259, 275 (2014) (“Immanuel should emerge on remand with a list of
claims that tracks the Comptroller’s disclosure obligations under the Abandoned
Property Act.”).
13
reveal the relative value of such claims in comparison with other claims in the
Comptroller’s possession, which would constitute disclosure of individual
financial information. See GP § 4-336(b); CL § 17-311; see also Immanuel I, 216
Md. App. at 267-68. Nothing in our decision, however, precludes the Comptroller
from releasing information on claims older than 365 days or within a specified
time frame.
We note that, to the extent that our holding today revises or modifies our
prior holding in Immanuel I, such modification is proper, because, in denying the
Comptroller’s motion for partial reconsideration of Immanuel I, we stated that the
issues raised in the Comptroller’s motion need to “be considered, in the first
instance, by the circuit court and upon an appropriate record.” In other words, we
did not determine that the Comptroller’s position in the motion was meritless;
rather, we decided that the circuit court was the proper court to consider such
position upon a more complete record. The circuit court did just that, and we
agree with its decision.
II. Circuit Court’s Order to Unseal the Record
Immanuel argues that the circuit court erred by vacating its order to seal.
Immanuel contends that, because the Comptroller never challenged the sealing of
the court records in its original appeal, the order to seal is a final judgment. As a
result, according to Immanuel, such order cannot be revised absent a finding of
fraud, mistake, or irregularity, none of which was made by the court. In addition,
Immanuel notes that he “was given no notice that the court might vacate its
14
previous order,” especially considering that Immanuel I did not include the sealing
of the record as one of the issues to be addressed on remand. Finally, Immanuel
argues that, when this Court granted his Motion to Seal on May 9, 2013, the
“sealing of the record of the case thereby became the law of the case,” which was
binding on the circuit court. According to Immanuel, this Court’s decision to
publish Immanuel I “did not render [his] right to keep his trade secrets private
moot.” We disagree and shall explain.
Both civil and criminal trials are presumptively open to the public, as the
Court of Appeals has recognized “a common law right to inspect and copy judicial
records and documents.” Balt. Sun Co. v. Mayor & City Council of Balt., 359 Md.
653, 661 (2000) (citations and internal quotation marks omitted). This common
law rule means that court proceedings are presumed open unless a statute, rule, or
appellate court decision provides otherwise. Id. at 662.
Maryland Rule 16-1009, Court Order Denying or Permitting Inspection of
Case Record, provides:
(a) Motion. (1) A party to an action in which a case record
is filed, including a person who has been permitted to
intervene as a party, and a person who is the subject of or is
specifically identified in a case record may file a motion:
(A) to seal or otherwise limit inspection of a
case record filed in that action that is not
otherwise shielded from inspection under the
Rules in this Chapter or Title 20; or
(B) to permit inspection of a case record filed
in that action that is not otherwise subject to
15
inspection under the Rules in this Chapter or
Title 20.
(2) The motion shall be filed with the court in which the
case record is filed and shall be served on:
(A) all parties to the action in which the case
record is filed; and
(B) each identifiable person who is the subject
of the case record.
***
(d) Final Order. (1) After an opportunity for a full
adversary hearing, the court shall enter a final order:
(A) precluding or limiting inspection of a case
record that is not otherwise shielded from
inspection under the Rules in this Chapter;
(B) permitting inspection, under such
conditions and limitations as the court finds
necessary, of a case record that is not
otherwise subject to inspection under the
Rules in this Chapter; or
(C) denying the motion.
(2) A final order shall include findings regarding the
interest sought to be protected by the order.
(3) A final order that precludes or limits inspection of a
case record shall be as narrow as practicable in scope
and duration to effectuate the interest sought to be
protected by the order.
(4) In determining whether to permit or deny inspection,
the court shall consider:
(A) if the motion seeks to preclude or limit
inspection of a case record that is otherwise
subject to inspection under the Rules in this
16
Chapter, whether a special and compelling
reason exists to preclude or limit inspection
of the particular case record; and
(B) if the motion seeks to permit inspection of
a case record that is otherwise not subject to
inspection under the Rules in this Chapter,
whether a special and compelling reason exists
to permit inspection.
(C) if the motion seeks to permit inspection of
a case record that has been previously sealed
by court order under subsection (d)(1)(A) of
this Rule and the movant was not a party to the
case when the order was entered, whether the
order satisfies the standards set forth in
subsections (d)(2), (3), and (4)(A) of this Rule.
(5) Unless the time is extended by the court on motion of a
party and for good cause, the court shall enter a final order
within 30 days after a hearing was held or waived.
(Emphasis added); see State v. WBAL-TV, 187 Md. App. 135, 156 (“Rules
16-1001, et seq., clearly reflect the common law presumption of the openness of
court records that, as a general rule, can only be overcome by a “special and
compelling reason.” (citations omitted)), cert. denied, 410 Md. 701 (2009); see
also Sumpter v. Sumpter, 427 Md. 668, 682-83 (2012) (remanding the case
because “[t]he limited record before [the Court] does not illuminate sufficiently
the full contours of the Circuit Court policy or rule, its origin, the balancing of the
interests sought to be protected by it against competing interests, whether less
restrictive alternatives were considered and why they were rejected, and any
special or compelling reasons to prohibit the parties’ attorneys from receiving a
copy of the custody investigation report”).
17
In the case sub judice, Immanuel stated the following in his Motion to Seal,
which used a court-issued, standard form:
The information that should not be disclosed is (and you
must be specific):
All information concerning the formula and method of
[Immanuel’s] Public Information Request to the Unclaimed
Property Unit of the Comptroller’s Office.
The reason(s) the information should not be disclosed is
(and you must be specific):
That it would be a disclosure of [Immanuel’s] trade secret,
as defined by CL § 11-1201(e).
The court order granting Immanuel’s motion appeared on the same form as
the motion, but did not contain (1) any findings regarding the interest sought to be
protected from inspection, as required by Rule 16-1009(d)(2); (2) whether a
special or compelling reason existed to justify the restricted access, as required by
Rule 16-1009(d)(4)(A); or (3) whether any less restrictive alternatives existed to
justify the restricted access, as required by Rule 16-1009(d)(3). See Sumpter, 427
Md. at 682-83. Thus it appears that the trial court issued its order to seal without
making the necessary findings under Rule 16-1009. Moreover, Immanuel never
produced any evidence of trade secrets.2
2
Courts are mandated by statute to “preserve the secrecy of an alleged trade
secret by reasonable means,” such as by sealing a court record. Md. Code (1975,
2013 Repl. Vol.), § 11-1205 of the Commercial Law (II) Article. A trade secret is
defined as
(continued . . .)
18
Assuming, arguendo, that the order to seal was proper under Rule 16-1009,
appellant claims that the circuit court erred in vacating such order, because it was
a final judgment. Under Rule 2-535, after thirty days after entry of a final
judgment, a court may only “exercise revisory power and control over the
judgment in case of fraud, mistake, or irregularity.”
We conclude that the order to seal was not a final judgment pursuant to
Rule 2-535. See Waterkeeper Alliance, Inc. v. Md. Dep’t of Agric., 439 Md. 262,
277 (2014) (noting that “Rule 2-535 is applicable only to final judgments”). The
______________________
(continued . . .)
information, including a formula, pattern, compilation,
program, device, method, technique, or process, that:
(1) Derives independent economic value,
actual or potential, from not being generally
known to, and not being readily ascertainable
by proper means by, other persons who can
obtain economic value from its disclosure or
use; and
(2) Is the subject of efforts that are reasonable
under the circumstances to maintain its
secrecy.
Id. § 11-1201(e).
Immanuel referenced Section 11-1201(e) in his Motion to Seal; however,
this provision, like Rule 16-1009, required Immanuel to prove that the information
contained in the record constituted a trade secret, which he never did. See Trandes
Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 662 & n.6 (4th Cir. 1993) (noting that
Trandes Corporation “may very well possess unique information in its formulas
and in the structure and organization of its programs, but it failed to prove that fact
at trial”).
19
Court of Appeals stated in Waterkeeper Alliance that “non-final orders are subject
to revision . . . without regard to Rule 2-535.” Id. (alteration in original) (citations
and internal quotation marks omitted).
An order will constitute a final judgment if the
following conditions are satisfied: (1) it must be intended by
the court as an unqualified, final disposition of the matter in
controversy; (2) it must adjudicate or complete the
adjudication of all claims against all parties; and (3) the
clerk must make a proper record of it on the docket. In
other words, for an order to qualify as a final judgment, it
must adjudicate each and every claim and be reflected in a
docket entry.
Id. at 278-79 (citations and internal quotation marks omitted).
In the case sub judice, the order to seal did not adjudicate or complete the
adjudication of all claims against all parties, because it did not adjudicate
Immanuel’s MPIA claim—that claim was adjudicated by the court’s July 13, 2012
Opinion and Order. As a result, the order to seal was not a final judgment, and
thus was subject to revision by the circuit court without regard to Rule 2-535. See
Waterkeeper Alliance, 439 Md. at 278-79.
Contrary to his contention, Immanuel was on notice that the circuit court
would be reviewing its order to seal, because Immanuel himself brought up the
order at the remand hearing. At the hearing, the following colloquy occurred:
[IMMANUEL’S COUNSEL]: And the last point I
wanted to make was,
originally when we were
here two years ago I had
requested that the records
of this matter be sealed
and this Court did grant
20
that request based upon
my client’s trade secrets.
THE COURT: Oh, really? Did I? I don’t
remember that.
[IMMANUEL’S COUNSEL]: Although the Court of
Special Appeals
published it, I think, you
know, reporters, other
people would have less
ability to understand the
argument by reading a
published opinion as
opposed to, you know,
actually we were looking
at the members who were
present in this courtroom.
And we would still
request that it continue to
be sealed.
THE COURT: I don’t even remember
doing that.
[IMMANUEL’S COUNSEL]: And there was no
opposition from the State
when we requested that.
THE COURT: Well, I’m not sure, is it a
second really? I’m just
curious. I mean, your
client is not the only
person in the world who
does this, apparently.
According to [the
Comptroller’s counsel].
[IMMANUEL’S COUNSEL]: The State has put my
client—your business is
called what . . . the Court
of Special Appeals
used . . . Tracers. The
State of Maryland has put
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tracers out of business in
this state. And my client,
there used to be a lot of
competition for these
accounts, and then when
the Attorney General’s
office came up with their
opinion, it basically put
them out of business.
THE COURT: Okay. Well, I’m going to
have to read the thing
again. . . .
(Emphasis added).
The above colloquy makes clear not only that Immanuel raised the order to
seal with the circuit court, but also that the court questioned the need for the
sealing of the record. Thus the court signaled that there was a potential issue with
continuing to seal the record in this case, and appellant had the opportunity to, and
did, argue such issue.
Finally, the law of the case doctrine does not preclude the vacating of the
order to seal. In Kline v. Kline, we explained such doctrine as follows:
The law of the case doctrine provides that once a
decision is established as the controlling legal rule of
decision between the same parties in the same case it
continues to be the law of the case. Specifically, a ruling by
an appellate court upon a question becomes the law of the
case and is binding on the courts and litigants in further
proceedings in the same matter.
93 Md. App. 696, 700 (1992) (citation omitted). We disagree with Immanuel that
this Court’s May 9, 2013 order sealing the case in the previous appeal is the law of
the case, because, after we issued that order, we not only published Immanuel I,
22
but also denied Immanuel’s subsequent motions to seal and redact the published
opinion. See 216 Md. App. at 259.
In sum, we hold that the trial court did not err or abuse its discretion in
vacating its earlier order to seal, because (1) there is a presumption for open public
records; (2) the order to seal did not contain the requisite findings under Rule 16-
1009(d); (3) the order to seal was a non-final order subject to revision; (4)
Immanuel was on notice that sealing the record may no longer be appropriate; and
(5) this Court decided to publish Immanuel I.
JUDGMENT OF THE CIRCUIT
COURT FOR WICOMICO COUNTY
AFFIRMED; APPELLANT TO PAY
COSTS.
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