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Guidelines on the Public's Right of Access to Judicial Proceedings and Records
Massachusetts Supreme Judicial Court
Section 3
  1. Uniform Rules on Impoundment Procedure:

    1. 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.

    2. 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)
  2. 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)
  3. Prompt Rulings Required: Motions challenging an impoundment order should be heard and ruled upon expeditiously. (48)
  4. 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)
  5. 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)
  6. Specific Records:
    1. Publicly Available (unless properly impounded or sealed):

      1. Alphabetical index of parties in pending criminal or civil cases.
      2. Alphabetical index of parties in closed criminal or civil cases. (51)
      3. Docket books.
      4. 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)
      5. Daily trial lists.
      6. 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)
      7. Written determinations of probable cause, including police reports considered by a clerk in making such determination. (54)
      8. Allowed applications for criminal complaint, including police reports set forth on such applications. (55)
      9. 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)
      10. Juvenile records of proceedings where the defendant is accused of having committed murder on or after July 27, 1996. (57)
      11. 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)
      12. Case files for proceedings to extend control of the Department of Youth Services over a person beyond the age of eighteen.
      13. Search warrants, applications for search warrants, and supporting affidavits, once the warrants and affidavits have been returned to the court. (59)
      14. 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)
      15. Exhibits. (61)
      16. Documents filed with the court in connection with a consent decree or settlement. (62)
      17. Discovery documents admitted into evidence or relied upon in connection with substantive motions. (63)
      18. Names and addresses of jurors in both the grand jury and trial jury venires. (64)
      19. Jury questionnaires used to supplement or in lieu of oral voir dire. (65)
      20. Names of trial jurors while a case is pending. (66)
      21. Names of trial jurors after mistrial or verdict. (67)
      22. 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)
      23. 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)

    2. Not Publicly Available:

      1. Cases and materials properly impounded or sealed. (70)
      2. Grand Jury records, including cases automatically sealed because of grand jury "no bill." (71)
      3. Dismissed first offense marijuana or Class E controlled substance cases. (72)
      4. Dismissed, "not guilty," or nolle prossed controlled substance cases. (73)
      5. 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)
      6. Confidential juror questionnaires included with summons. (75)
      7. Records relating to offenses for which the defendant has received a gubernatorial pardon. (76)
      8. Affidavits made in support of an application for a search warrant are not available until the warrant has been returned. (77)
      9. Plaintiff's current and former residential address, telephone number and workplace name, address and telephone number in abuse prevention cases. (78)
      10. Records of care and protection proceedings. (79)
      11. Financial statements required in Family Court and Probate Court actions where financial relief is requested. (80)
      12. 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)
      13. 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)

    3. Public Access Made Discretionary by Statute or Court Guidelines: (83)

      1. Mental health examination and commitment records, other than ordinary entries on the criminal docket. (84)
      2. Alcoholic commitment records, other than ordinary entries on the criminal docket. (85)
      3. Names of sexual assault victims. (86)
      4. 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)
      5. Records of abuse prevention cases where either party is a minor. (88)
      6. Records of adoption proceedings, including the index of such cases. (89)
      7. Cassette recordings of Probate Court and Family Court proceedings. (90)
      8. 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)
      9. 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)