A judge deemed some arguments by a Montgomery County police union attempting to block public access to court filings “not very strong,” but did not rule on the issue Wednesday 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.
The Fraternal Order of Police Lodge 35 has sought to keep filings confidential in its lawsuit to prevent the release of an officer’s disciplinary files. The FOP’s lawsuit against Montgomery County argues that Anton’s Law is unconstitutional, and that public disclosure of the records would violate the officer’s rights.
The case has drawn scrutiny from transparency advocates who say the original records request — made by a woman concerned about an officer who pulled her over — exemplifies the spirit of the law named for Anton Black, a teen who died in 2018 after an encounter with police in Greensboro, Md. The bill passed as part of a historic package of accountability measures.
At issue during Wednesday’s hearing was not release of the disciplinary files, but whether arguments in the case should be closed to the media and public, and whether to allow the woman who requested the records and advocacy groups to be parties to the case.
FOP lawyers in August obtained a protective order, with the county’s consent, sealing legal filings in the case, leading The Washington Post and the Reporters Committee for Freedom of the Press to seek to intervene to obtain public access to the court filings and hearings. Judges routinely permit such limited-purpose interventions.
“If the court needed to see the records to make the decision, we set forth a process and procedure for that to occur, and had there not been the intervention, we probably would have a ruling from the court,” Anthony Conti, a lawyer for the FOP and the officer said during Wednesday’s hearing.
Montgomery County Circuit Court Associate Judge Karla N. Smith appeared ready to allow the intervention, but said she was weighing the protective order, which Conti argued was necessary to prevent exposing the records at issue.
Katie Townsend, the RCFP’s deputy executive director and legal director, said during the hearing that the protective order should never have been allowed. Any decision on a litigant’s wish to seal some portion of a civil proceeding should be preceded by a publicly docketed hearing where opposing arguments can be heard and weighed.
“Public records cases where the question on the merits is whether or not … records should be disclosed or withheld are litigated all the time,” Townsend said. “And I can tell you, your honor, I litigate a lot of them, and they’re done so in public with public briefings, with public hearings.”
A lawyer for the Maryland Coalition for Justice and Police Accountability, which is seeking to intervene to make arguments in the case and obtain the records at issue, agreed. Any sealing of filings, attorney Mary Borja said, should be with “the least restrictive means,” rather than conducting the entire case inside a “black box.”
Anton’s Law, which followed police transparency laws in New York, Illinois and other places, has ushered in uncertain times for unions and officers concerned about what complaints or missteps could stain their reputations. But it also begins a process of accountability that activists have long called for, and that many experts say ultimately is good for both the public’s perception of policing and for officers themselves.
The woman who originally requested the records, Alexa Renehan, is also seeking to intervene, with legal help from the Vanderbilt Law School’s First Amendment Clinic and the Baltimore Action Legal Team. Renehan 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.
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.
Court filings in the case refer to Gloss anonymously as “Officer John Doe” per the protective order signed by Montgomery County Circuit Court Associate Judge Bibi M. Berry.
Gloss and the FOP have argued that disclosure of his disciplinary records would violate the 14th Amendment’s prohibition against government depriving “any person of life, liberty, or property, without due process of law.”
“Police officers have a particular, cognizable privacy and liberty interest in not being publicly identified or having their personnel files or disciplinary records made publicly available,” the FOP’s amended complaint says. “Even if their names are redacted, police officers still risk an invasion of their privacy when such records are published because they can often be identified through other, disclosed information and identifying details.”
Police disciplinary records are easily available in many states, including Florida, Ohio and Wisconsin, allowing watchdog groups, journalists and others to identify officers with troubling records and assess whether departments are adequately policing their own. New York a few years ago repealed its law shielding disciplinary records from disclosure, and New York City police made public a searchable database of records that had been secret for decades. Several unions fought vigorously to prevent the disclosure, but a federal appeals court rejected their arguments.