Massachusetts records act doesn't trump protective order

Documents deemed confidential by court order cannot be disclosed under the Massachusetts public records law, even though no exemption to the law specifically states such records are exempt, the state high court found in Lieberman v. Attorney General, a companion to the case Commonwealth v. Fremont Investment & Loan.

The plaintiff, Samuel Lieberman, filed a public records request in May 2009 to access business records collected during an investigation into allegations that mortgage lender Fremont Investment & Loan engaged in "unfair and deceptive practices." The requested records had been placed under a protective order by the judge presiding over the enforcement action against the company, allowing 5.5 million pages to be labeled as confidential. The Massachusetts attorney general's office did not challenge the designations by Fremont or the eventual order.

After Lieberman's records request was denied due to the protective order, he sued to intervene in the case against Fremont in order to challenge the protective order, arguing that many of the documents were improperly categorized as confidential. Lieberman's motion to intervene was also denied.

The records Lieberman requested normally would be disclosed upon request because the Massachusetts public records law only exempts business records and trade secret documents that are voluntarily submitted to a state agency, including the attorney general's office. Fremont's records were provided to the attorney general "as required by law," which means the exemption does not apply. Lieberman argued that, because the law does not specifically exempt records that have been put under protective order and the records protected in this case are not subject to any other exemption, the records should be released. The court disagreed.

The ability to issue a protective order is an inherent power of the judiciary, the court held. To find that the public records law invalidated or infringed on that power "would raise serious constitutional questions about the validity of th[e] law." The Supreme Judicial Court previously held that it must construe laws in the light most favorable to finding them constitutional. Doing so in this case requires that "we conclude that the public records judge did not err in dismissing Lieberman's claim" in the lower court, the court held.

Although the public records law is silent on the issue of a court's authority to issue protective orders and how that affects otherwise public records, the court held that it does not imply that such authority is subordinate to the public records law. While Lieberman's understanding of the business records and trade secrets exemption was "sound," the court held that the legislature did not "endeavor to effect such a significant change to a longstanding and fundamental power of the judiciary" when it remained silent on the issue of protective orders. Therefore, the records could not be obtained as long as the order is in effect, even though the records would be subject to a disclosure had the judge not issued the protective order.

While the high court upheld the denial of Lieberman's public records request, it vacated the lower court's ruling on Lieberman's motion to intervene, finding that there might be "changed circumstances that may render certain materials no longer validly covered by the [protective] order." The court held that Lieberman should be given an opportunity to argue about whether he should be allowed to join in order to challenge the protective order, while maintaining that the request is a permissive intervention and that their ruling "does not require that a motion . . . be granted in every case in which a party moves to intervene to challenge a protective order."