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Guidelines
on the Public's Right of Access to Judicial
Proceedings and Records |
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Massachusetts
Supreme Judicial Court
Section 3 |
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III.
JUDICIAL RECORDS
- Uniform
Rules on Impoundment Procedure:
- Scope:
The Uniform Rules explicitly
govern impoundment
(36) of records in civil
proceedings in every Department
of the Trial Court. Although
the Rules do not explicitly
govern impoundment in criminal
and juvenile proceedings,
their application to criminal
(37) and certain juvenile
(38) proceedings has been
approved by the Supreme Judicial
Court.
- Key
Provisions: A request
for impoundment must be made
by a written motion accompanied
by affidavit. Ex
parte relief may be
granted only upon a showing
that immediate and irreparable
injury may result. If any
order of impoundment is granted
without notice, the matter
shall be set down for hearing
at the earliest possible time,
and in any event, within ten
days. The court may order
notice be given to interested
third persons, such as the
media. An interested third
person may oppose impoundment.
An order of impoundment may
be entered by the court only
after hearing and for good
cause shown.
(39) In determining good
cause, the court shall consider
all relevant factors including,
but not limited to, the nature
of the parties and the controversy,
the type of information and
the privacy interests involved,
the extent of community interest,
and the reason(s) for the
request. Agreement of all
parties or interested third
persons in favor of impoundment
is not, in itself, sufficient
to constitute good cause.
(40) An order of impoundment,
whether ex
parte or after notice,
may be made only upon written
findings and must specify
the duration of the order.
(41) A party or interested
third person may move to modify
or terminate an order of impoundment.
An order impounding or refusing
to impound material is subject
to review by a single justice
of the appellate court.
(42) Before a party appeals
to a single justice, the party
should seek written findings
from the trial judge.
(43)
- First
Amendment Qualified Right of Access:
In addition to the common law
presumption of access to judicial
records,
(44) the First Amendment may
provide an independent qualified
right of access to judicial records.
(45) This right has been premised
on the theory that without access
to the documents underlying a
judicial proceeding, the public
often would not have a full understanding
of the proceeding and, as a result,
would not be in a position to
serve as an effective check on
the system, an underlying reason
for the First Amendment right
of access to judicial proceedings.
(46) Limitations on the First
Amendment right of access will
be upheld where a court determines,
based upon adequate findings,
that an overriding interest, narrowly
tailored to the circumstances,
overcomes the presumptive First
Amendment right.
(47)
- Prompt
Rulings Required: Motions
challenging an impoundment order
should be heard and ruled upon
expeditiously.
(48)
- Code
of Professional Responsibility
for Clerks of the Courts of the
Commonwealth: Canon 3(A)(6)
requires each Clerk-Magistrate
to facilitate public access to
court records that, by law or
court rule, are available to the
public.
(49)
- Photocopies:
Access to records includes not
only being able to review and
make notes about judicial documents,
but also being permitted to obtain
photocopies at normal rates.
(50)
- Specific
Records:
-
Publicly Available (unless
properly impounded or sealed):
- Alphabetical
index of parties in pending
criminal or civil cases.
- Alphabetical
index of parties in closed
criminal or civil cases.
(51)
- Docket
books.
- Case
files, including those
of criminal cases in which
a defendant has been acquitted,
a finding of no probable
cause has been made by
the court, or the action
has been dismissed or
nolle prossed.
(52)
- Daily
trial lists.
- Judge's
required statement of
reasons for not imposing
a committed sentence of
an offense under G.L.
c. 265 (which comprises
crimes against the person
such as murder, rape,
armed robbery, and assault).
(53)
- Written
determinations of probable
cause, including police
reports considered by
a clerk in making such
determination.
(54)
- Allowed
applications for criminal
complaint, including police
reports set forth on such
applications.
(55)
- Juvenile
records of proceedings
against youthful offenders
conducted pursuant to
an indictment. Youthful
offenders are juveniles
subject to sentence under
certain enumerated circumstances
for having committed,
between the ages of fourteen
and seventeen, a offense
that would be punishable
by imprisonment if they
were adults. Privileged
or confidential communications
contained in such records
are not publicly available. (56)
- Juvenile
records of proceedings
where the defendant is
accused of having committed
murder on or after July
27, 1996.
(57)
- Parts
of records of proceedings
against sex offenders,
including juvenile offenders,
but only if the information
is needed for the inquirer's
own protection or for
the protection of a child
under age 18 or another
person for whom the inquirer
has responsibility, care,
or custody.
(58)
- Case
files for proceedings
to extend control of the
Department of Youth Services
over a person beyond the
age of eighteen.
- Search
warrants, applications
for search warrants, and
supporting affidavits,
once the warrants and
affidavits have been returned
to the court.
(59)
- Records
of abuse prevention cases
(c. 209A) -- other than
the plaintiff's current
and former residential
address, telephone number
and workplace name, address
and telephone number --
in which neither party
is a minor.
(60)
- Exhibits.
(61)
- Documents
filed with the court in
connection with a consent
decree or settlement.
(62)
- Discovery
documents admitted into
evidence or relied upon
in connection with substantive
motions.
(63)
- Names
and addresses of jurors
in both the grand jury
and trial jury venires.
(64)
- Jury
questionnaires used to
supplement or in lieu
of oral voir dire.
(65)
- Names
of trial jurors while
a case is pending.
(66)
- Names
of trial jurors after
mistrial or verdict.
(67)
- All
papers filed in connection
with actions to establish
paternity or in which
the paternity of a child
is an issue, as well as
docket entries and record
books for such actions,
are unavailable for public
inspection only if the
judge of the court where
the records are kept,
for good cause shown,
so orders, or if the person
alleged to be the father
is adjudicated not to
be the father of the child.
(68)
- The
report and transcript
from an inquest, where
the district attorney
certifies that no prosecution
is proposed, an indictment
is sought but not returned,
prosecution for the death
has completed, or the
Superior Court determines
that no criminal trial
is likely.
(69)
- Not
Publicly Available:
- Cases
and materials properly
impounded or sealed.
(70)
- Grand
Jury records, including
cases automatically sealed
because of grand jury
"no bill."
(71)
- Dismissed
first offense marijuana
or Class E controlled
substance cases.
(72)
- Dismissed,
"not guilty,"
or nolle prossed controlled
substance cases.
(73)
- The
Commissioner of Probation
is required to seal certain
old records of criminal
court appearances and
dispositions, if requested
by the person having such
records and if certain
conditions are met.
(74)
- Confidential
juror questionnaires included
with summons.
(75)
- Records
relating to offenses for
which the defendant has
received a gubernatorial
pardon.
(76)
- Affidavits
made in support of an
application for a search
warrant are not available
until the warrant has
been returned.
(77)
- Plaintiff's
current and former residential
address, telephone number
and workplace name, address
and telephone number in
abuse prevention cases.
(78)
- Records
of care and protection
proceedings.
(79)
- Financial
statements required in
Family Court and Probate
Court actions where financial
relief is requested.
(80)
- Inquest
documents, where the district
attorney has not certified
that no proposition is
proposed, an indictment
has not been sought without
a return, prosecution
for the death has not
completed, and the Superior
Court has not determined
that no criminal trial
is likely.
(81)
- In
separate support and divorce
proceedings, "[w]henever
adultery, any specific
criminal act with a third
person or allegations
derogatory to the character
or reputation of a third
person" are charged
in a pleading, the name
of the person charged
with committing adultery
with one of the parties
shall not be included
in the pleading. Any affidavit
alleging the name of the
person charged shall be
sealed and shall not be
released to nonparties
save by order of the court.
(82)
- Public
Access Made Discretionary
by Statute or Court Guidelines:
(83)
- Mental
health examination and
commitment records, other
than ordinary entries
on the criminal docket.
(84)
- Alcoholic
commitment records, other
than ordinary entries
on the criminal docket.
(85)
- Names
of sexual assault victims.
(86)
- After
the issuance of an order
by the Superior Court
making public the report
and transcript of an inquest,
inquest documents other
than the report and transcript,
along with audio recordings
of inquest proceedings.
(87)
- Records
of abuse prevention cases
where either party is
a minor.
(88)
- Records
of adoption proceedings,
including the index of
such cases.
(89)
- Cassette
recordings of Probate
Court and Family Court
proceedings.
(90)
- A
justice of the Juvenile
Court has the discretion
to choose whether to release
to the public juvenile
court records other than
records (1) of "youthful
offender" proceedings
conducted pursuant to
an indictment
and (2) of proceedings
where the defendant is
accused of having committed
murder on or after July
27, 1996. In the absence
of an order releasing
the records, the records
shall be withheld from
public inspection.
(91)
- Pending
or denied applications
for criminal complaints
are presumptively sealed
unless the clerk-magistrate
or a judge concludes that
the legitimate interest
of the public outweighs
the privacy interest of
the accused.
(92)
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