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Massachusetts

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Updated by RCFP staff with special thanks to Rachel Davidson, Harvard Law School, Class of 2020.

Last updated April 2019

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

Massachusetts courts have recognized a First Amendment and common law right of access to criminal proceedings, and a common law right of access to civil proceedings. See, e.g., Kirk v. Commonwealth, 944 N.E.2d 135, 137 (Mass. 2011) (recognizing a longstanding right to attend civil trials under Massachusetts common law); Commonwealth v. Martin, 629 N.E.2d 297, 301 (Mass. 1994) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 603 (1982)) (recognizing First Amendment right of access to criminal trials); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”).

In addition, Massachusetts courts have recognized a broad right of access to civil and criminal court records under either the common law or the First Amendment. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989)); New England Internet Cafe, LLC v. Super. Ct., 966 N.E.2d 797, 803 (Mass. 2012) (“[M]ost judicial records—including transcripts, evidence, memoranda, court orders and, significantly, material relating to the issuance of search warrants (after the warrant is returned)—are presumptively public documents [under the common law].”) (citations and quotation omitted).

Because Massachusetts’s common law right of access covers a broad range of proceedings and records, courts often recognize a right of access based on the common law without reaching the First Amendment analysis. See, e.g., 966 N.E.2d at 808 n.13 (explaining that where there is a common law or statutory right of access, courts need not reach First Amendment analysis); Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155–56 & n.7 (Mass. 1995). When courts do reach the question of whether a First Amendment presumption of access applies, Massachusetts courts apply the Supreme Court’s “logic and experience test,” also called the “Press-Enterprise test.” See, e.g., Eagle-Tribune Pub. Co. v. Clerk-Magistrate, 863 N.E.2d 517, 523 (Mass. 2007) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986)). The test considers (1) “whether the place and process have historically been open to the press and general public,” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8.

Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure of the proceeding is appropriate: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings (factor four) “must be particularized and supported by the record.” Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155 (Mass. 1995) (citations omitted).

In Massachusetts, each court has its own rules, though some rules are uniform to the different levels. The majority of the Massachusetts Trial Court Rules are uniform to the entire system, with the specific courts adding additional rules. Trial Court Rule VIII encompasses the Uniform Rules on Impoundment Procedure, which govern the impoundment of otherwise public judicial records, and also specify the processes for individuals wishing to challenge or appeal impoundment orders. Supreme Judicial Court Rule 1:19 governs the recording and transmitting of proceedings in Massachusetts courts. The Rule establishes a presumption that news media may record and transmit court proceedings, subject to some limitations.

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B. Overcoming a presumption of openness

Proceedings. Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure is appropriate: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings “must be particularized and supported by the record.” Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155 (Mass. 1995) (citations omitted).

In Massachusetts, “[t]he right of public access applies equally to . . . [proceedings in] nontraditional settings.” Id. (citing Commonwealth v. DeBrosky, 297 N.E.2d 496 (Mass. 1973)) (holding that courts must consider the Waller factors before closing an arraignment in a hospital).

 Records.  “Case records are presumptively public documents unless required by statute, court rule, standing order, or case law to be withheld from public inspection.” Unif. R. Impound. P., Rule 1(a) (Committee Notes); see also New England Internet Cafe, LLC v. Clerk of Super. Ct., 966 N.E.2d 797, 803 (Mass. 2012) (citations and quotation omitted) (“[M]ost judicial records—including transcripts, evidence, memoranda, court orders and, significantly, material relating to the issuance of search warrants (after the warrant is returned)—are presumptively public documents.”).

Whether a right of access to a certain type of court record exists depends on the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court would likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise I, 464 U.S. 501, 513 (1984)).

 

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C. Procedural prerequisites to closure

Proceedings. Massachusetts follows the Press-Enterprise precedent and works on the assumption of openness. Closure will only be granted when there is an “overriding interest that is likely to be prejudiced,” and closure must be narrowed to protect the interest. Boston Herald, Inc. v. Super. Ct. Dept. of Trial Ct., 421 Mass. 502, 505–506 (1995) (citing Commonwealth v. Martin, 417 Mass. 187, 194 (1994)). The court must also consider alternatives to closure, and findings must be issued to support the decision.  Id. at 506. Even in nontraditional settings, like hospitals, judicial procedures to closure must meet the same standards as in the traditional courtroom, no matter how informal the proceeding. Id. at 506–507.

Records. The Uniform Rules on Impoundment Procedure (a subset of the Massachusetts Trial Court Rules, all listed under Trial Court Rule VIII) govern the impoundment of otherwise-public records in civil and criminal proceedings in Massachusetts courts, except for those in the Supreme Judicial Court, which are governed by S.J.C. Rule 1:15, § 1. See Unif. R. Impound. P., Rule 1(a); S.J.C. Rule 1:15, § 1(b) (Trial Court Rule VIII governs appeals courts, with some modifications specified in this section). Impounded records differ from sealed records in that the former are “open for inspection by the court, attorneys of record, and the parties, but not the public,” whereas “sealed” documents are typically only available to the court, unless the court specifically orders limited disclosure. Unif. R. Impound. P., Rule 1 (Committee Notes, “Scope and the Presumption of Public Access to Case Records” section) (citations omitted).

The Uniform Rules on Impoundment were significantly amended in 2015; consequently, many pre-2015 court decisions interpreting the Rules are now out of date. See, e.g., Chief Justice Paula M. Carey and Joseph Stanton, Amendments to the Uniform Rules of Impoundment Procedure, Boston Bar Journal (July 8, 2015) (describing the 2015 amendment).

“[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be ‘strictly construed in favor of the general principle of publicity’.” Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 (2004) (quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949)). An order of impoundment may only be entered upon a written finding of good cause and must be narrowly tailored to meet the asserted need. Unif. R. Impound. P., Rule 8. The “good cause” determination requires the judge to balance factors such as constitutional rights, public and personal safety, investigative secrecy, the extent of community interests, and privacy interests. See Unif. R. Impound. P., Rule 7 (Committee Notes, “Balancing Test” section) (collecting cases).

“Good cause” determinations vary depending on the type of record at issue. A legitimate expectation of privacy is typically, although not always, sufficient for good cause, while “[a]llegations of potential embarrassment, or the fear of unjustified adverse publicity” are insufficient. Unif. R. Impound. P., Rule 8 (Committee Notes, “Definition of ‘Good Cause’” section) (citing H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 330 (1987); George W. Prescott Pub. Co. v. Register of Probate, 395 Mass. 274, 279, 281 (1985)).

Judges may respond to impoundment requests with flexibility: “Among other options, a judge may release the materials to the public, or only to the moving party with or without a confidentiality order, or release the materials to either with redactions appropriate to protect the legitimate interests of the parties in investigative secrecy, privacy, property, or fair trial.” New England Internet Cafe, LLC v. Super. Ct., 966 N.E.2d 797, 805 (Mass. 2012) (citing Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 868 (Mass. 2000)).

When deciding whether to seal a record, or addressing a challenge to such a sealing, courts conduct a “good cause” analysis very similar to that applied in the case of impoundment. See, e.g., Commonwealth v. Pon, 14 N.E.3d 182, 197–99 (Mass. 2014).

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The media has a right to challenge court closures. Eagle-Tribune Pub. Co. v. Clerk-Magistrate, 448 Mass. 647, 651 (2007). The media have the same rights as the public, no more and no less. Id. at n.11 (citing Boston Herald, Inc. v. Super. Ct., 421 Mass. 502, 505 (1995)).

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B. Procedure for requesting access in criminal cases

Proceedings. Due to the general presumption of access, when proceedings have been closed, those who oppose have a right to be heard in Massachusetts. Members of the media have filed motions to intervene in order to challenge court closures.  See, e.g., Commonwealth v. Clark, 730 N.E.2d 872, 880 (Mass. 2000) (noting that trial court granted non-party media entities’ motion to intervene to seek reconsideration of trial judge’s order barring electronic media from trial).  However, a formal motion to intervene is not necessary, and a closure order may be appealed immediately. Globe Newspaper Co. v. Super. Ct., 379 Mass. 846, 865 (1981), judgment vacated on other grounds, 457 U.S. 596 (1982) (one “need not file a formal motion to intervene”). If denied access in the single justice hearing under Mass. Gen. Laws ch. 211 § 3, a member of the media may appeal the decision to the full court. Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002). However, that judgment will only be reversed with a finding of “clear error of law or [abuse of] discretion.” Id. (citing Dep’t of Mental Retardation v. Kendrew, 418 Mass. 50, 53 (1994)).

 Records. Once a record has been impounded, anyone (including nonparties, Unif. R. Impound. P., Rule 6) may challenge the impoundment order whenever they have a “nonfrivolous” reason for doing so. Republican Co. v. Appeals Ct., 812 N.E.2d 887, 893 (Mass. 2004). Nonparties seeking to oppose, modify, or terminate impoundment orders must follow procedures specified in Rule 6; for pending cases, this requires the filing of a motion, but for closed cases, this requires the filing of a new civil action. Unif. R. Impound. P., Rule 6.

In contrast to most types of court orders, an impoundment order carries no continuing presumption of validity. Republican Co., 812 N.E.2d at 893. Consequently, the party challenging the impoundment “does not bear the burden of demonstrating either that there has been a material change in circumstances or that whatever good cause may once have justified their impoundment no longer exists. The burden of demonstrating the existence of good cause always remains with the party urging their continued impoundment.” Id.

 

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C. Procedure for requesting access in civil matters

Proceedings. Nonparties may file a motion to intervene in order request access to proceedings. See, e.g., George W. Prescott Pub. Co. v. Stoughton Div., 701 N.E.2d 307, 308 (Mass. 1998).

Records. Once a record has been impounded, anyone (including nonparties, Unif. R. Impound. P., Rule 6) may challenge the impoundment order whenever they have a “nonfrivolous” reason for doing so. Republican Co. v. Appeals Ct., 812 N.E.2d 887, 893 (Mass. 2004).

In contrast to most types of court orders, an impoundment order carries no continuing presumption of validity. Id. Consequently, the party challenging the impoundment “does not bear the burden of demonstrating either that there has been a material change in circumstances or that whatever good cause may once have justified their impoundment no longer exists. The burden of demonstrating the existence of good cause always remains with the party urging their continued impoundment.” Id.

Nonparties seeking to oppose, modify, or terminate impoundment orders must follow procedures specified in the Impoundment Procedure Rule 6; for pending cases, this requires the filing of a motion, but for closed cases, this requires the filing of a new civil action. Unif. R. Impound. P., Rule 6.

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D. Obtaining review of initial court decisions

Proceedings. A closure order may be appealed immediately to a single justice of the Massachusetts Supreme Judicial Court pursuant to Mass. Gen. Laws. ch. 211, § 3. See, e.g., Globe Newspaper Co. v. Super. Ct., 379 Mass. 846, 865 (1981), judgment vacated on other grounds, 457 U.S. 596 (1982). If denied access in the single justice hearing, a member of the media may immediately appeal the decision to the full court. McMenimen v. Passatempo, 892 N.E.2d 287, 298 (Mass. 2008); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000), rev’d on other grounds, Jaynes v. Commonwealth, 436 Mass. 1010 (2002). However, that judgment will only be reversed with a finding of “clear error of law or [abuse of] discretion.” Sharpe, 432 Mass. at 602 (citing Dep’t of Mental Retardation v. Kendrew, 418 Mass. 50, 53 (1994)).

Records. In ongoing cases, a party (or interested nonparty) seeking review of an impoundment order must file a petition in the intermediate appellate court, known as the Appeals Court, within thirty days of the entry of the impoundment order. Unif. R. Impound. P., Rule 12(a). A single justice conducts the review. See Unif. R. Impound. P., Rule 12 (Committee Notes, “Procedure for Single Justice Review” section). The petitioner does not have a right to appeal the single appellate justice’s order to a full appellate panel; instead, “the only recourse for the litigant is to file a petition in the Supreme Judicial Court . . . seeking to invoke the court's general superintendence power under G. L. c. 211, § 3.” Id. (citing Boston Herald, Inc. v. Sharpe, 432 Mass. at 601-602).

In closed cases (where a judgment has already been entered), parties wishing to challenge an impoundment order must follow Massachusetts Rules of Appellate Procedure. Unif. R. Impound. P., Rule 12(b) and Committee Notes (citing Ottaway Newspapers, Inc. v. Appeals Ct., 372 Mass. 539, 551 (1977)). Appellant must file a notice of appeal in the trial court within thirty days of the judgment. Id. (Committee Notes) (citing Mass. R.A.P. 3 and 4). The appeal will be heard by a full panel of the appropriate court. Id. (Committee Notes).

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III. Access to criminal proceedings

A. In general

Massachusetts, following Supreme Court precedent, recognizes a general right of public access to criminal trials. See, e.g., Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 603 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).

When considering whether a constitutional presumption of access applies to particular criminal proceedings, Massachusetts courts apply the Supreme Court’s “logic and experience test” described above.

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B. Pretrial proceedings

Massachusetts, following Supreme Court precedent, has recognized a public right of access to different types of pretrial criminal hearings. See, e.g., Commonwealth v. Chism, 65 N.E.3d 1171, 1178 (Mass. 2017) (suppression hearing) (citing Waller, 467 U.S. at 48); Commonwealth v. Jones, 37 N.E.3d 589 (Mass. 2015) (rape shield hearing); Eagle-Tribune Pub. v. Clerk-Magistrate, 863 N.E.2d 517, 524–25 (Mass. 2007) (probable cause hearing); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (post-verdict hearing considering allegations of prejudicial influences on criminal jury); Commonwealth v. Hobbs, 434 N.E.2d 633, 637 (Mass. 1982) (suppression hearing).

The Massachusetts Supreme Judicial Court has found that a First Amendment right of access does not apply to show cause hearings that take place before any criminal prosecution has begun, though the court noted that there may be circumstances in which a public show cause hearing would be appropriate. See Eagle-Tribune Pub. v. Clerk-Magistrate, 863 N.E.2d 517, 524–26 (Mass. 2007). Courts may conduct open show cause hearings where they believe that the public interest outweighs the accused’s right of privacy. Id. (citing Standards of Judicial Practice, The Complaint Procedure, Standard 3:16). For instance, “[w]here an incident has already attracted public attention prior to a show cause hearing, the interest in shielding the participants from publicity is necessarily diminished, while the public’s legitimate interest in access is correspondingly stronger.” Id. at 527 (Mass. 2007).

In deciding whether there is a presumption of openness to a certain type of proceeding, Massachusetts courts consider the traditional “Press-Enterprise test.” See, e.g., Eagle-Tribune Pub. Co., 863 N.E.2d at 523 (citing Press–Enterprise II, 478 U.S. 1, 8 (1986)). The test considers (1) “whether the place and process have historically been open to the press and general public,” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8(citations omitted).

Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure is appropriate: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings (factor four) “must be particularized and supported by the record.” Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155 (Mass. 1995) (citations omitted).

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C. Criminal trials

Massachusetts, following Supreme Court precedent, recognizes a general right of public access to criminal trials. See, e.g., Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 603 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).

In Commonwealth v. Clark, 730 N.E.2d 872, 881–82 (Mass. 2000), the court held that the presence of electronic media in the courtroom did not impair the fairness of the defendant’s trial, even where witnesses and jurors were sequestered.

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D. Post-trial proceedings

There is a general presumption of openness to postverdict criminal proceedings. See Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985)) (“Although the Supreme Court has not ruled on the public’s right of access to postverdict proceedings, the principles expressed in the [caselaw] indicate that the public has a right of access to a hearing on a motion for a new trial and to any similar postconviction proceeding.”).

When considering whether a constitutional presumption of access applies to particular proceedings or records, Massachusetts courts apply the Press-Enterprise “logic and experience test” set forth above.

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E. Appellate proceedings

IV. Access to criminal court records

A. In general

First Amendment and common law rights of access extend to judicial records such as transcripts of proceedings, court briefs, and evidence. Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989)).

To the extent the Supreme Court and Massachusetts courts have not yet decided whether a right of access applies to a certain type of record, Massachusetts courts make this determination based on the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court would likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise. I, 464 U.S. 501, 513 (1984)).

Any person may obtain a copy of a recording of open proceedings in all divisions of the trial court known as the District Court Department and in the Boston Municipal Court Department, unless those records have been sealed or impounded. District Court Special Rule 211(A)(5)(a). There is no right of access to a court reporter’s unofficial recording of court proceedings where that recording was not made part of the official court record. Commonwealth v. Winfield, 985 N.E.2d 86, 90–92 (Mass. 2013).

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B. Arrest records

When an individual is arrested without a warrant, Massachusetts requires a judicial determination of probable cause within 24 hours of the arrest, known as a “Jenkins determination.” Jenkins v. Chief Justice, 619 N.E.2d 324, 328–329 (Mass. 1993). The judicial officer’s probable cause determination becomes part of the public record and is presumptively open to the public. Mass. R. Crim. P. 3.1(e) & (f); see also Mass. Trial Ct. R. XI.

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C. Dockets

Case files and dockets are generally public records. Massachusetts courts maintain a webpage with links and resources pertaining to dockets and court calendars. See also Boston College Law Library, Dockets and Court Filings Research (providing information about online docket access for all levels of Massachusetts courts).

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The Massachusetts Supreme Judicial Court has held that there is no right of access to a search warrant affidavit before the warrant and accompanying affidavit are returned (which occurs after an indictment or a criminal proceeding in which the affidavit is in issue). Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1267 (Mass. 1988). Once a warrant is returned, however, the warrant and the affidavit submitted to support the warrant become public records. Mass. Gen. Laws ch. 276, § 2B.

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E. Discovery materials

Like the Supreme Court, Massachusetts courts have stated on many occasions that there is no right of access to pre-trial discovery in civil matters, but Massachusetts courts have spoken less definitively about criminal discovery. Consequently, access to discovery materials can be more strictly limited than in other stages of proceedings.

For instance, a court may “grant discovery to a defendant on the condition that the material to be discovered be available only to counsel for the defendant.” Mass. R. Crim. P. 14(a)(6); see also id., Reporter’s Notes (“Protective orders are designed for the unusual case in which the granting of discovery will work to the injury of the person whose material is to be discovered or to the injury of some third person.”).

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F. Pretrial motions and records

Because “almost all pretrial proceedings are presumptively open,” Lee Levine, et al., Newsgathering and the Law § 3.01[1][a] (5th ed. 2018), the right of public access extends to most records associated with such pre-trial proceedings. Where the Supreme Court and Massachusetts courts have not yet determined whether a right of access to a certain type of record exists, Massachusetts courts make this determination by considering the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court will likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise I, 464 U.S. 501, 513 (1984)).

Even if evidence submitted for pretrial suppression hearings is ruled inadmissible at trial, it nevertheless becomes part of the public record. See Commonwealth v. Chism, 65 N.E.3d 1171, 1179 (Mass. 2017) (“A recording admitted in evidence as an exhibit at a motion to suppress hearing, and a transcript of that recording marked for identification, are judicial records.”) (citing New England Internet Café, LLC v. Clerk of Super. Ct., 462 Mass. 76, 82–83 (2012)).

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G. Trial records

The right of access to judicial records extends to trial records such as transcripts of proceedings, court briefs, and evidence. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir.1989)).

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H. Post-trial records

Because there is a general presumption of openness to postverdict proceedings, see Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985)), Massachusetts would likely recognize a similar right of access to corresponding records. Where the Supreme Court and Massachusetts courts have not yet determined whether a right of access to a certain type of record exists, Massachusetts courts make this determination by considering the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court will likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise I, 464 U.S. 501, 513 (1984)).

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I. Appellate records

J. Other criminal court records issues

The Criminal Offender Record Information Act (“CORI Act”) governs the centralized collection of, and access to, criminal record information in Massachusetts. See generally Mass. Gen. Laws ch. 6, §§ 167–178L (significantly amended in 2010 and 2014); Chris Skall, Journey Out of Neverland: CORI Reform, Commonwealth v. Peter Pon, and Massachusetts’s Emergence As A National Exemplar for Criminal Record Sealing, 57 B.C. L. Rev. 337 (2016).

Records from closed criminal proceedings that result in dismissal or an entry of nolle prosequi are subject to a common law—but not First Amendment—right of access and may be sealed where good cause justifies overriding the general principle of publicity. Commonwealth v. Pon, 14 N.E.3d 182, 196–97 (Mass. 2014). In these circumstances, the court will conduct a “good cause” balancing test to determine whether sealing the records is appropriate, and because only a common law presumption of access applies to such records, “the weight of the scales is more balanced [than when the First Amendment is implicated], and the burden on the defendant somewhat lessened.” Id. at 197–98.

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V. Access to civil proceedings

A. In general

There is a well-established common law right of access to civil trials and many pre- and post-trial proceedings. See, e.g., Globe Newspaper Co., Inc. v. Clerk, 14 Mass. L. Rptr. 315 (2002) (the public’s right to access civil proceedings is grounded in the same common law principles as that of criminal proceedings); Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155–56 & n.7 (Mass. 1995) (“The Supreme Court has not yet said whether the First Amendment protects public access to civil trials. However, free access to civil trials is well established under the common law.”); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”). Further, “in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.” Boston Herald, Inc., 658 N.E.2d at 155–56 & n.7 (citing Gannett Co. v. DePasquale, 443 U.S. 368, 386–387 & n.15, (1979)).

Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure is appropriate: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings (factor four) “must be particularized and supported by the record.” Boston Herald, Inc., 658 N.E.2d at 155.

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B. Pre-trial proceedings

Following the U.S. Supreme Court’s decision in Seattle Times Company v. Rhinehart, Massachusetts courts do not recognize a right of access to pre-trial discovery, “including deposition transcripts, exhibits, interrogatory responses and answers to document requests.” Harris-Lewis v. Mudge, 9 Mass. L. Rptr. 698 (Mass. Super. 1999); see also Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986) (there is no tradition of public access to discovery, and consequently there is no common law presumption of public access to discovery-related records); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 362 (Mass. 1990) (remarking in dicta that there is no right of access to depositions); Cronin v. Strayer, 467 N.E.2d 143, 149 (Mass. 1984) (“The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.”) (quoting Seattle Times Co., 467 U.S. at 36).

Massachusetts courts may, upon finding good cause, issue protective orders mandating that certain depositions be sealed or that “discovery be conducted with no one present except persons designated by the court” in order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” Mass. R. Civ. P. 26(c).

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C. Trials

There is a general presumption of open access to civil trials. See, e.g., Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 156 (Mass. 1995) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 386–387 & n.15 (1979)) (“The Supreme Court has not yet said whether the First Amendment protects public access to civil trials. However, free access to civil trials is well established under the common law.”); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”).

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D. Post-trial proceedings

The Supreme Court has not directly addressed this subject, but lower courts have extended the presumption of access to post-trial civil proceedings. In Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983), for example, the court recognized a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights.

Massachusetts courts recognize a general presumption of openness to post-verdict criminal proceedings. See Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985)) (“Although the Supreme Court has not ruled on the public’s right of access to postverdict proceedings, the principles expressed in the [caselaw] indicate that the public has a right of access to a hearing on a motion for a new trial and to any similar postconviction proceeding.”). Massachusetts courts have not yet weighed in on whether the same presumption of access applies to post-trial civil proceedings, but the same principles applied in the criminal context would likely favor access in the civil context. See id. (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”).

When considering whether a constitutional presumption of access applies to particular proceedings or records in the first instance, Massachusetts courts apply the Press-Enterprise “logic and experience” test set forth above.

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E. Appellate proceedings

VI. Access to civil records

A. In general

Following Supreme Court precedent, Massachusetts courts recognize “a well-established common-law right of access to the judicial records of civil proceedings.” Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 868 (Mass. 2000) (citing Nixon v. Warner Comm’cns, Inc., 435 U.S. 589, 597 (1978), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002); Ottaway Newspapers, Inc. v. Appeals Ct., 362 N.E.2d 1189, 1194 (Mass. 1977)).

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B. Dockets

Case files and dockets are generally public records. Massachusetts courts maintain a webpage with links and resources pertaining to dockets and court calendars. See also Boston College Law Library, Dockets and Court Filings Research (providing information about online docket access for all levels of Massachusetts courts).

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C. Discovery materials

Following the U.S. Supreme Court’s decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984), Massachusetts courts have not recognized a right of access to pre-trial discovery, “including deposition transcripts, exhibits, interrogatory responses and answers to document requests.” Harris-Lewis v. Mudge, 9 Mass. L. Rptr. 698 (Mass. Super. 1999); see also Unif. R. Impound. P., Rule 1 (Committee Notes: Discovery and Other Materials From a Non-Party); Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986) (there is no tradition of public access to discovery, and consequently there is no common law presumption of public access to discovery-related records); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 362 (Mass. 1990) (remarking in dicta that there is no right of access to depositions); Cronin v. Strayer, 467 N.E.2d 143, 149 (Mass. 1984) (“The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.”) (quoting Seattle Times Co., 467 U.S. at 36).

Massachusetts courts may, upon finding good cause, issue protective orders mandating that certain depositions be sealed or that “discovery be conducted with no one present except persons designated by the court” in order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” Mass. R. Civ. P. 26(c).

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D. Pre-trial motions and records

Massachusetts courts recognize “a well-established common-law right of access to the judicial records of civil proceedings.” Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 868 (Mass. 2000), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Ottaway Newspapers, Inc. v. Appeals Ct., 362 N.E.2d 1189, 1194 (Mass. 1977)). The right of access to judicial records extends to trial records such as transcripts of proceedings, court briefs, and evidence. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989)).

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E. Trial records

Because there is a public right of access to civil trials, see, e.g., Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155–56 & n.7 (Mass. 1995), there is a right of access to corresponding civil trial records. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir.1989) (the First Amendment right of access to judicial records extends to civil trial records such as transcripts of proceedings, court briefs, and evidence).

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F. Settlement records

Massachusetts’ highest court, the Supreme Judicial Court, has affirmed a denial of access to an impounded settlement agreement where that agreement involved discovery information that was “intensely personal,” and the parties were not public figures and had a reasonable expectation of privacy in the material. See H.S. Gere & Sons, Inc. v. Frey, 509 N.E.2d 271, 273–74 (Mass. 1987) (conducting impoundment analysis before the Uniform Rules on Impoundment Procedure went into effect, although considering similar factors). In Frey, the Supreme Judicial Court noted with approval that the trial court judge “did not rely on the fact that the parties had agreed that the case would remain impounded.” Id. at 273. See also Unif. R. Impound. P., Rule 7(b) (“Agreement of all parties, interested nonparties, or other persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause.”).

In Gleba v. Daimler Chrysler Corp., No. 98230, 2001 WL 1029678 (Mass. Super. Aug. 6, 2001), the trial court declined to impound records of a settlement between a car manufacturer and a plaintiff whose deceased spouse had died due to the car’s allegedly defective door latch.  The court reasoned that “such an impoundment order would serve as a secrecy mechanism that conceals information of harmful products or practices from the public and function[s] as a claim avoidance and claim management tool.”  Id. at *3.  Even though the parties had agreed to the proposed impoundment order, the court concluded that such an order would be “abusive to the Court and to the public. . . .” Id.

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G. Post-trial records

Like the U.S. Supreme Court, Massachusetts courts have not explicitly addressed the right of public access to all types of post-trial records. Generally, where the Supreme Court and Massachusetts courts have not yet decided whether there is a right of access to a certain type of record, Massachusetts courts will make this determination based on the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court would likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. at 8; Press–Enterprise I, 464 U.S. at 513).

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H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

The jury selection process is presumptively open in Massachusetts.  In order to close the courtroom during jury selection, the Waller factors must be met: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” Commonwealth v. Lopes, 89 Mass. App. Ct. 560, 562–63, 51 N.E.3d 496, 498 (2016) (quoting Martin, 417 Mass. at 194).

Congestion is an insufficient reason to close the courtroom where reasonable alternatives to closure exist (such as dividing the jury pool into multiple rooms or moving to a larger room). Lopes, 51 N.E.3d 496, 498–99 (Mass. Ct. App. 2016) (citing Presley v. Georgia, 558 U.S. 209, 214 (2010)). In order to close the courtroom for congestion purposes, the record must demonstrate that such reasonable alternatives were not available. Id.

Recording and live transmission of voir dire hearings is prohibited, as is “frontal or close-up photography of jurors and prospective jurors.” S.J.C. Rule 1:19(2)(b).

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B. Juror identities, questionnaires and other records

Absent a court order to the contrary, Massachusetts law requires courts to enter into the public record lists of grand jurors and trial jurors (including their names, addresses, and birth dates) no later than ten days prior to the jurors’ scheduled appearances. Mass. Gen. Laws. ch. 234A, § 67.

According to Massachusetts law, juror questionnaires are not public records and must be destroyed after completion of jury selection. Mass. Gen. Laws. ch. 234A, § 23. The court and the office of jury commissioner may inquire into potential juror’s criminal history records, but this information must be kept confidential and does not become part of the public record. Mass. Gen. Laws. ch. 234A, § 33.

 “The due process clause precludes the empanelment of an anonymous jury at a criminal trial unless anonymity is necessary to protect the jurors from harm or improper influence.” Commonwealth v. Fujita, 23 N.E.3d 882, 885 (Mass. 2015) (quoting Commonwealth v. Angiulo, 415 Mass. 502, 527 (1993)).

As with other judicial records, there is a strong presumption of public access to documents containing juror identities; this presumption may only be overcome by a finding of “good cause,” a context-specific balancing which considers such factors as “the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of the community interest, and the reason for the request.” Fujita, 23 N.E.3d 882, 888 (Mass. 2015) (quoting Republican Co., 442 Mass. at 222–223).

Risk of harm to, or improper influence upon, jurors may constitute sufficient good cause. See, e.g., id. at 885 (Mass. 2015) (quoting Angiulo, 415 Mass. at 527) (“The due process clause precludes the empanelment of an anonymous jury at a criminal trial unless anonymity is necessary to protect the jurors from harm or improper influence.”); Commonwealth v. Silva, 864 N.E.2d 1, 3, 6–8 (Mass. 2007) (finding that a legitimate concern for juror safety overrides the public’s right to juror information in the context of a murder trial in which a principal witness against the gang-affiliated defendant had been shot prior to scheduled testimony). By contrast, a “judge’s aversion to exposing jurors to press interviews and the personal preferences of the jurors” are insufficient for good cause purposes. Fujita, 23 N.E.3d at 885.

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C. Grand jury proceedings and records

Proceedings. Grand jury proceedings are secret in Massachusetts. WBZ-TV4 v. Dist. Atty., 408 Mass. 595, 599 (citing Commonwealth v. Harris, 231 Mass. 584, 586 (1919); Commonwealth v. Mead, 12 Gray 167, 170 (Mass. 1858)).

Records. While “not every document placed before a grand jury is automatically exempt from disclosure,” any information that is not otherwise public that is presented to the grand jury is presumed to be “matters occurring before the grand jury” and therefore impounded. Id. at 601. The WBZ-TV4 case implies that the grand jury secrecy rule may be overcome, but only with a showing of a compelling, constitutionally based interest. Id. at 599.

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D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

Proceedings against delinquent minors are closed to the public, unless the government proceeds by indictment (meaning that the government is prosecuting the minor as an adult). Mass. Gen. Laws. ch. 119, §§ 65, 54; see also News Grp. Boston, Inc. v. Commonwealth, 568 N.E.2d 600, 603 (Mass. 1991).

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B. Dependency

Child welfare proceedings, except for those involving court orders to not resuscitate or to withdraw life support from a child in the custody of Department of Children and Families, are closed to the public. Mass. Gen. Laws ch. 119, § 38; accord In re Care & Prot. of Sharlene, 840 N.E.2d 918, 930 (Mass. 2006).

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C. Other proceedings involving minors

Records from abuse or harassment prevention proceedings (under General Laws c. 209A or c. 258E) involving minors are presumptively withheld from the public, except by order of the court. Mass. Gen. Laws ch. 209A, § 8; 258E, § 10. The Uniform Rules on Impoundment Procedure govern motions to release such materials.

 

Although Massachusetts law bars the general public from trials involving sex offenses with minors (Mass. Gen. Laws ch. 278, § 16A), the Supreme Court held this mandatory closure to be unconstitutional. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 610-11 & n.27 (1982). Instead, courts must make closure determinations on a case-by-case basis. Id. at 608; Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994).

 

When considering closure, Massachusetts courts apply the Supreme Court’s Waller factors: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” Martin, 629 N.E.2d at 302 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). Within this framework, courts have considered, as a relevant factor, the prevention of psychological harm and trauma to the minor.  Id. at 302. In addition, “the judge shall consider the age, maturity, and desires of the complainant, the nature of the alleged crime, and the interests of the complainant’s parents and relatives.” Id. (quoting Globe Newspaper Co., 457 U.S. at 608).

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D. Prohibitions on photographing or identifying juveniles

Massachusetts court rules prohibit photography of minors in the courtroom without the consent of the judge. S.J.C. Rule 1:19(2)(c).  However, any prior restraints prohibiting reporting on information lawfully obtained by the media are presumptively unconstitutional. George W. Prescott Pub. Co. v. Stoughton Div., 701 N.E.2d 307, 309 (Mass. 1998) (court order limiting press reporting on public proceedings involving juvenile witnesses was an unlawful prior restraint; there is an “especially high burden of justification” for limiting press reporting where proceedings and records are open to the public).

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E. Minor testimony in non-juvenile courts

See George W. Prescott Pub. Co. v. Stoughton Div., 701 N.E.2d 307, 309 (Mass. 1998) (court order limiting reporting on public proceedings involving juvenile witnesses was an unlawful prior restraint; there is an “especially high burden of justification” for limiting press reporting where proceedings and records are open to the public).

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

Supplemental Probate and Family Court Rule 201 governs the court’s recording of proceedings and access to those recordings.

Massachusetts probate and family courts have impoundment rules that are similar to other Massachusetts trial courts. See generally Sean M. Dunphy, Impoundment, Probate Law and Practice, § 2.9 (21 Mass. Practice Series, 2d ed.) (overview of impoundment in Massachusetts probate courts).

Probate and family courts largely adhere to the Uniform Rules on Impoundment Procedure, with some exceptions and some additional rules. See, e.g., Probate and Family Court Standing Order 1-15 (“Application of Rule 13(b) of the Uniform Rules of Impoundment Procedure to the Probate and Family Court”); Probate and Family Court Standing Order 1-09 (“Impoundment of personal medical information”); Probate and Family Court Standing Order 3-08 (“Impoundment of qualified domestic relations orders”); Probate and Family Court Standing Order 2-08 (“Impoundment of guardian ad litem reports”). In determining whether impoundment is appropriate, probate and family courts conduct “good cause” balancing tests as other Massachusetts courts do. See Sean M. Dunphy, Impoundment, Probate Law and Practice, § 2.9 n.1 (21 Mass. Practice Series, 2d ed.) (collecting cases).

“[E]xcept as expressly provided, judicial records of G.L. c. 209A [domestic abuse prevention] proceedings are presumptively open.” Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 870 (Mass. 2000), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002).

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C. Competency and commitment proceedings

Civil commitment proceedings are presumptively open to the public.  To determine whether the need for closure is “sufficiently compelling,” the court applies the Supreme Court’s Waller factors: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” Kirk v. Commonwealth, 944 N.E.2d 135, 140 (Mass. 2011).

With respect to the first factor, the Supreme Judicial Court has recognized that public disclosure of medical information may adversely affect a patient’s therapeutic treatment, while stressing that the party seeking closure has the burden of demonstrating the likelihood of such prejudice. See id. at 74.

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D. Attorney and judicial discipline

Supreme Judicial Court Rule 4.01 provides procedural rules on bar discipline, which the Rules of the Board of Bar Overseers supplement and interpret. Section 3.22 of the Rules of the Board of Bar Overseers governs protective orders and public access to disciplinary proceedings.

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E. Immigration proceedings

Not applicable.

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F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

In Massachusetts courts, “any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.” Care & Protection of Edith, 659 N.E.2d 1174, 1177 (Mass. 1996).

The Supreme Judicial Court has held that an order prohibiting the father of children subject to a “care and protection petition” from discussing the proceedings with the media was an unconstitutional prior restraint, noting that the government had not advanced a sufficiently compelling interest. See id. at 1175–77.

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D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

Employment Agreements. See Carr v. Entercom Boston, LLC, 22 Mass. L. Rptr. 628, 2007 WL 2110722 (Mass. Super. Ct. 2007) (denying impoundment request regarding an employment agreement, citing lack of good cause and practical concerns).

Trade secrets. Under the Uniform Rules on Impoundment, a court may allow a motion for impoundment upon a written finding of good cause (bypassing the hearing requirement) “when (1) the reason for the impoundment is to protect trade secrets or other confidential research, development, or business information, (2) the motion is by agreement or unopposed, (3) no party or other person has requested a hearing, and (4) the information does not involve an alleged or potential public hazard or risk to public safety.” Unif. R. Impound. P., Rule 7(e); see also id. (Committee Notes – “Trade Secret Exception” section).

Investigative secrecy. The need for investigative secrecy may constitute a sufficient basis for good cause to impound records. See, e.g., Unif. R. Impound. P., Rule 7 (Committee Notes, “Criminal Proceedings” section); New England Internet Cafe, LLC v. Clerk of Super. Ct., 966 N.E.2d 797, 805 (Mass. 2012) (noting investigative secrecy to be a legitimate interest in impoundment decisions).

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B. Cameras and other technology in the courtroom

Supreme Judicial Court Rule 1:19 governs the recording and transmitting of proceedings in Massachusetts courts. The Rule establishes a presumption that news media may record and transmit court proceedings, subject to some limitations. S.J.C. Rule 1:19(2) (“A judge shall permit photographing or electronic recording or transmitting of courtroom proceedings open to the public by the news media for news gathering purposes and dissemination of information to the public, subject to the limitations of this rule.”).

Generally, a judge may limit media access “if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence.” S.J.C. Rule 1:19(2)(a).

Specifically, the following types of recordings are not permitted under any circumstances: photography or electronic recording of voir dire hearings; close-up photography of jurors and potential jurors; electronic recording of bench and side-bar conferences; electronic recording of conferences between counsel or between counsel and client. S.J.C. Rule 1:19(2)(b); see also Commonwealth v. Winfield, 985 N.E.2d 86, 92 n.3 (Mass. 2013).

In order to obtain authorization to record or transmit proceedings, representatives of news media organizations (or individuals not affiliated with media organizations, but who regularly perform media-like functions listed in the rule) must register with the Public Information Officer of the Supreme Judicial Court. S.J.C. Rule 1:19(2).

If a party seeks to prevent media coverage of a proceeding that would otherwise be open to the public, the party must deliver electronic notice of their motion “during regular business hours to the Bureau Chief or News Editor of the Associated Press, Boston, using the email address of apboston@ap.org.” S.J.C. Rule 1:19(g).

Massachusetts courts maintain a Courtroom Media Access page with resources for the news media.

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C. Tips for covering courts in the jurisdiction

Massachusetts courts maintain a webpage with links and resources pertaining to dockets and court calendars. See also Boston College Law Library, Dockets and Court Filings Research (providing information about online docket access for all levels of Massachusetts courts).

Massachusetts courts maintain a Courtroom Media Access page with resources and contact information for the news media. The Supreme Judicial Court has a Judiciary-Media Committee which meets quarterly to discuss media access and issues in the judicial system.

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