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In lawsuit over police transparency, groups ask for ... more transparency

A union for Montgomery County police officers asked a judge to seal legal briefs in a lawsuit blocking the release of an officer’s disciplinary files

Public Safety Headquarters, where the Montgomery County Police Department's 1st District is based, in Gaithersburg, Md. (Craig Hudson for The Washington Post)

Montgomery County officials and the local police union planned to keep confidential their arguments in a lawsuit blocking the release of an officer’s disciplinary files. Union lawyers, with the county’s consent, asked a judge to seal legal briefs and hide the officer’s name — requests that the court granted.

But several organizations that advocate for transparency have asked the judge to reconsider that decision in a case widely seen as an early test of Anton’s Law, passed by Maryland lawmakers last year to ensure public access to complaints of police misconduct. They’ve also asked for permission to intervene and make their own arguments in the case.

Alexa Renehan, whose request for an officer’s disciplinary records sparked the litigation, gave a statement this week calling it “abhorrent” that “Montgomery County leaders have determined that keeping police misconduct shrouded in secrecy is more important than the public’s right to know.”

“The documents Ms. Renehan requested … were exactly the types of files that Anton’s Law was designed to make public,” said a motion filed on her behalf Friday by lawyers for the Vanderbilt Law School’s First Amendment Clinic and the Baltimore Action Legal Team.

A separate motion filed last week by the Reporters Committee for Freedom of the Press (RCFP) and The Washington Post said the documents Renehan requested “are of keen interest to the press and public.”

“It absolutely should not be litigated behind closed doors, with sealed briefings and closed proceedings,” Katie Townsend, the RCFP’s deputy executive director and legal director, said in an email Tuesday.

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Early this year, Fraternal Order of Police Lodge 35 secured an agreement with County Executive Marc Elrich (D) allowing the union time to inspect internal-affairs files of officers and object to their release before a member of the public can see them.

Renehan, who practiced family law in Montgomery County for more than a decade, first requested the disciplinary records of county police officer John J. Gloss in January. More than a decade earlier, she had complained to the department about Gloss after a traffic stop she felt he handled inappropriately.

After negotiating down an estimated $63,030 fee for the records in April, Renehan waited. She was still waiting this summer, long after the county’s legal deadline to release the records. In July, a day before the county pledged to turn them over, Gloss and Lodge 35, which the county had given time to review the records, sued the county to stop their disclosure.

Renehan is not a party to the case, but her lawyers hope to change that. They said that the county and the union do not appear very adversarial, citing Elrich’s agreement allowing the union time to review the records and block their release.

Under the agreement, the county must provide the union copies of any internal-affairs records prepared for release, and the union has 10 business days to review them. If the union files an action in court during that time to prevent release, the county agrees to keep the file confidential pending a ruling.

“This collaborative agreement undermines any assertion that the parties to this case, including [the county], could adequately represent Ms. Renehan’s interests because the parties are in a cooperative relationship pursuant to this contract,” Renehan’s motion to intervene said.

Acting Montgomery County attorney John P. Markovs said in an email Tuesday that the county does not comment on pending litigation. He has previously commented that “all litigation is adversarial.” Lodge 35’s president, Lee Holland, did not respond to an email Tuesday.

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Court filings in the case refer to Gloss anonymously as “Officer John Doe” per a protective order signed by Montgomery County Circuit Court Associate Judge Bibi M. Berry. The order was proposed in a motion, put forward by the union and agreed to by the county, that said it was necessary to protect his privacy.

The protective order also requires the county and the union to submit their arguments in the case under seal and conduct any hearings “in a manner that protects the identity of the officer and the contents of the disputed materials.”

The motion to intervene made by the RCFP and The Post says the judge’s order “withholds essentially all information from the press and public about the facts and legal arguments” driving the litigation.

The motion said that, because The Post already reported Gloss’s name in connection with the case, the pseudonym does not effectively protect his privacy. The filing notes that the union’s argument for the order relies heavily on a court precedent allowing a plaintiff with AIDS to use a pseudonym to avoid disclosing his medical records.

“Not only is that case distinguishable on its facts, but also it concerned only pseudonymity — not a Protective Order requiring the wholesale sealing of all legal memoranda and, likely, the closure of court proceedings,” the RCFP and The Post’s motion said.

The filing goes on to say that the judge “erred in failing to follow any of the procedural prerequisites to closure, such as holding a hearing or making on-the-record findings explaining why it found closure was justified and less restrictive alternatives were inadequate.”

Molly Gannon Conway, a spokeswoman for The Post, declined to comment.

The online docket for the case shows that the union filed arguments under seal on Sept. 14. The county has 30 days from that filing to submit a sealed response. The docket does not yet show any scheduled hearings.