362 [79 Op. Att’y

PUBLIC INFORMATION ACT

COURTS AND JUDGES ) STATUS OF RECORDS RELATED TO

JUDICIAL EVALUATIONS

May 9, 1994

Mr. George B. Riggin, Jr.

State Court Administrator

Administrative Office of the Courts

You have requested our opinion whether certain records related

to the evaluation of judges would be subject to public inspection

under the Maryland Public Information Act. For the reasons stated

below, we conclude that these materials would not be open to public

inspection. 

I

Judicial Evaluation Program

On May 9, 1991, the Subcommittee on Judicial Evaluations of

the Judicial Administration Section Council of the Maryland State

Bar Association issued its final report regarding a pilot program for

the evaluation of judges. The subcommittee concluded that the pilot

program had been a success and recommended that an on-going

program of judicial evaluations be instituted. 

Your letter indicates that Chief Judge Murphy has decided to

accept this recommendation and initiate such a program. Under the

plan, one-fourth of all of the judges in the State would be evaluated

annually, so that all judges will have been evaluated once over a

four-year cycle. You explain that “[d]ata for a judge’s evaluation

will be obtained from questionnaires provided to attorneys who have

actually appeared before that judge in a contested proceeding. A

project manager or service bureau, under contract with the

Administrative Office of the Courts, will send the questionnaires,

receive the responses, and enter the data ...” into a computer. After

the data are assembled, an evaluation will be prepared for each

judge. “That evaluation will be furnished only to the judge who is

the subject of the evaluation and to Chief Judge Murphy, and, in

Chief Judge Murphy’s discretion, to his designee, for the purpose of
Gen. 362] 363

having the designee review the evaluation with the judge evaluated.

The designee may be the administrative judge of the court, district,

or circuit of the particular judge evaluated, or a retired or senior

judge.” 

The questionnaire used in the pilot program for circuit court

judges, for example, asked for an assessment of the judge’s

performance on 32 factors, including “knowledge of relevant

substantive law,” “ability to identify and analyze relevant issues,”

“courtesy to participants,” and “absence of bias and prejudice ....”

For each of these characteristics, the attorney would check a block

for a rating ranging from “excellent” to “poor.” The questionnaire

also had space for open-ended comments. 

The purpose of the evaluation project, you state in your letter,

“is to improve the quality of judicial performance by enabling

individual judges to see how they are perceived. The evaluation will

also enable each judge to compare how that judge was evaluated on

various aspects of judicial performance with a composite or profile

of that judge’s peers. When a cycle through the entire judiciary is

repeated, a judge will also be able to compare that judge’s current

evaluation with the prior one.” 

As State Court Administrator, you will be the custodian of the

completed questionnaires, the data assembled from them, and the

evaluation reports themselves. You ask whether you would be able

to maintain these records in confidence. If not, then the program

will be difficult or impossible to conduct. 

II

Application of Public Information Act

The starting point in analyzing any issue under the Public

Information Act is the general entitlement of members of the public

to government records: “Except as otherwise provided by law, a

custodian shall permit a person or governmental unit to inspect any

public record at any reasonable time.” §10-613(a) of the State

Government (“SG”) Article, Maryland Code. See also SG §10-612.

The Public Information Act itself contains a number of

provisions that “otherwise provid[e] by law” ) that is, provisions

that either authorize or require the custodian of records to deny
364 [79 Op. Att’y

public inspection. One of these is the exemption for “personnel

records,” SG §10-616(i): 

(1) Subject to paragraph (2) of this

subsection, a custodian shall deny inspection

of a personnel record of an individual,

including an application, performance rating,

or scholastic achievement information. 

(2) A custodian shall permit inspection

by:

(i) the person in interest; or 

(ii) an elected or appointed official

who supervises the work of the individual.

The primary focus of this exemption is undoubtedly traditional

personnel files of government employees. See, e.g., 65 Opinions of

the Attorney General 365 (1980); 60 Opinions of the Attorney

General 559 (1975). But the protection afforded by the exemption

is broader: “The obvious purpose of this [exception] is to preserve

the privacy of personal information about a public employee that is

accumulated during his or her employment.” 65 Opinions of the

Attorney General at 367. So, for example, in an opinion to you last

year, we concluded that SG §10-616(i) prohibited the disclosure of

certain records of complaints against employees in a clerk’s office.

78 Opinions of the Attorney General 291 (1993).

As elected or appointed public officials, judges may not be

“employees” in the conventional sense, but they are surely

“individuals” about whom personal information of the kind

commonly found in a “personnel record” is maintained. Indeed, the

evaluation program is designed to yield something close to a

“performance rating” ) an element of a “personnel record” explicitly

identified in SG §10-616(i). The point of the exercise is to enable

each judge to ascertain areas of strong and weak performance,

especially by comparison to a composite of the evaluations of other

judges. 

Hence, we conclude that the responses of lawyers on the

questionnaires, which provide the raw data for the performance

evaluation; the compiled data for each judge; and the evaluation

reports themselves for each judge are exempt from disclosure under
Gen. 362] 365

 In light of this conclusion, we need not consider the extent to 1

which any of this information constitutes “an interagency or intra-agency

letter or memorandum that would not be available by law to a private party

in litigation with the unit.” SG §10-618(b). We also note that if the Court

of Appeals were to adopt a rule establishing the confidentiality of the

performance evaluation materials, that rule would itself preclude public

inspection under the Public Information Act. See SG §10-615(1). The

Court has adopted such a rule with respect to the materials of the

Commission on Judicial Disabilities. See Rule 1227e. 

 While a judge is not supervised in the conduct of matters that 2

come before the judge, the Chief Judge of the Court of Appeals is

“responsible for the administration of the courts of the State.” Rule

1200a1. Moreover, “[e]ach circuit administrative judge shall be generally

responsible for the administration of the several courts within his judicial

circuit, pursuant to these Rules and subject to the direction of the Chief

Judge of the Court of Appeals.” Rule 1200c2(a). Thus, the limited

disclosure of individual evaluations that your letter discusses would be

permissible.

SG §10-616(i). Only the judge who is the subject of the evaluation 1

and a judge “who supervises the work of the individual” are

permitted access to these records. However, members of the public 2

will be entitled to composite data and other information that does not

identify particular judges. 

III

Conclusion

In summary, it is our opinion that materials related to the

performance evaluation of individual judges are not subject to

disclosure under the Public Information Act. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice