Immanuel v. Comptroller

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, [ ] 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.”)

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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

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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

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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

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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).

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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

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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

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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,

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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

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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

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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.”).

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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

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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

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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

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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”).

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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 . . .)

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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 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).