Section 1. Purpose and Scope. This rule is intended to prevent the unnecessary inclusion of certain personal identifying information in publicly accessible documents filed with or issued by the Courts, in order to reduce the possibility of using such documents for identity theft, the unwarranted invasion of privacy, or other improper purposes. The rule applies to publicly accessible documents filed in civil and criminal cases; documents offered in evidence at any trial or hearing; and any order, decision, or other document issued by a court that will be publicly accessible. The rule does not prevent a document’s filer from requesting more or less protection of personal identifying information than this rule requires. The rule does not limit a court's authority to enter specific orders in particular cases, and it does not relieve a filer of any greater obligations imposed by the law or a court. Further, the rule does not prohibit any Department of the Trial Court, or any appellate court, from adopting a rule or standing order providing additional protections for personal identifying information covered by this rule, or protecting additional categories of personal identifying information. The rule applies only to filings made after its effective date.
Section 2. Definitions. As used in this rule, the following terms shall have the following meanings:
“Clerk” shall mean a Clerk, Clerk-Magistrate, Register of Probate, the Recorder of the Land Court, and their assistants.
“Court” shall mean all Departments of the Trial Court; the Appeals Court; and the Supreme Judicial Court.
“Document” shall mean any material filed in a court, in paper or electronic form.
“Filer” shall mean any person or entity, including a corporation or government entity, that files documents in a court, and is not limited to parties.
“Personal identifying information” shall mean a social security number, taxpayer identification number, driver’s license number, state-issued identification card number, or passport number, a parent's birth surname if identified as such, a financial account number, or a credit or debit card number.
“Redacted” shall mean a filing that either does not include complete personal identifying information or has portions of such information whited or blacked out so they are not readable.
Section 3. Personal Identifying Information: Requirement of Limited Disclosure. When filing a document in court that will be publicly accessible, a filer may not, unless otherwise allowed by this rule, include personal identifying information, except when the filer redacts it as follows:
(a) Government-Issued Identification Numbers. If a social security number, taxpayer identification number, driver’s license number, state-issued identification card number, or passport number must be included, all but the last four digits of that number shall be redacted.
(b) Parent’s Birth Surname, if Identified as Such. If the birth surname of a person’s parent, identified as such, must be included, all but the first initial of the birth surname shall be redacted.
(c) Financial Account Numbers and Credit Card Numbers. If a financial account number or credit or debit card number must be included, all but the last four digits of the number shall be redacted.
Section 4. Methods of Redaction. Documents shall be redacted as set forth below.
(a) Documents Drafted for Filing in Court. In the case of a document drafted for filing in court, the omitted information shall be replaced by three “x” characters or, where appropriate, by the phrase “beginning with” or “ending in.”
(b) All Other Documents. In all documents that were not drafted for filing in court, such as copies of pre-existing exhibits, the filer shall partially redact all personal identifying information as required by this rule. All redactions shall be made in a way that prevents the redacted information from being read or made visible. Any document redacted in this way shall be clearly marked to show the name of the filer making the redaction and the date on which it was made. The location of each redaction in the document must be visible. The filer shall keep an unredacted copy of the document while the case is pending, including during any related appeal, and furnish it (i) to the court promptly upon request, and (ii) to any party promptly upon that party’s request, or if such a request is refused, the court may order production upon the requesting party’s motion showing good cause and affirming that the information will be secured in a manner sufficient to avoid misuse or disclosure to third parties.
Section 5. General Exceptions. Unless the court orders otherwise, unredacted personal identifying information may be included in documents filed with the court if any of the following exceptions applies:
(a) A law, court rule, standing order, court-issued form, or an order issued in the proceeding specifically requires including the personal identifying information in the document.
(b) The document including the personal identifying information is a transcript of the court proceeding, filed directly by a court reporter or transcriber, or is the official record of another court proceeding, filed by that court.
(c) The document including the personal identifying information is a record of administrative adjudicatory or quasi-adjudicatory proceedings, filed by the administrative agency, and the applicable department of the Trial Court or other court has adopted its own rule or standing order governing redaction of personal identifying information in such records.
(d) The document including the personal identifying information is produced directly to or in the court by a nonparty in response to a subpoena, summons or other court order, and is not publicly accessible. Any party that intends to offer such a document in evidence shall make a copy of it, redact the copy as required by this rule, and offer the redacted copy.
(e) The document includes a financial account number that is necessary to identify an account that is the subject of a forfeiture proceeding, in which case the number need not be redacted.
Section 6. Exceptions in Criminal and Youthful Offender Cases. In criminal and youthful offender cases, unless the court orders otherwise, the following documents need not be redacted when filed originally, but shall be redacted when attached by an attorney as exhibits unless the original filing is in the same court file:
(a) a court filing that is related to a criminal matter or investigation and that is prepared before the filing of a criminal case or is not filed as part of any docketed criminal case;
(b) an arrest or search warrant; or
(c) a charging document, including an application for a criminal complaint, and supporting documents filed in support of any charging document.
Section 7. Responsibility for Redaction. The filer is responsible for redacting personal identifying information. The clerk will not review each filed document for compliance.
Section 8. Noncompliance.
(a) In the event of a filer’s noncompliance with this rule, the court, on its own initiative or on motion of a party or the person whose personal identifying information is at issue, may require corrective action. Corrective action may include, but is not limited to: (i) striking and returning to the filer any noncompliant document, with or without an order that a properly-redacted copy be filed in its place; (ii) requiring the filer to file a redacted version of the document and move to impound the unredacted version; (iii) forfeiting any protection under this rule for the filer’s own personal identifying information, if the information has become public or if other parties or persons would be unduly prejudiced by treating the information as protected, or if the filer’s noncompliance is either willful or repeated; (iv) entering orders to ensure the filer’s future compliance or to protect the interests under this rule of other parties and persons; and (v) imposing monetary sanctions, if the filer’s noncompliance is either willful or repeated.
(b) The filer shall have the burden to prove any claim that the noncompliance was inadvertent. The filing of a document that contains the filer’s personal identifying information does not by itself make this rule inapplicable to that information. If a filer files a document that includes another person’s personal identifying information, that person or any other interested person may still move for an order impounding the document or requiring that it be returned to the filer and that a properly-redacted copy be filed in its place. A filer may waive the applicability of this rule to the filer’s own personal identifying information, but only by an express statement of waiver filed in writing or made in open court.
Section 9. Applicability to Court Orders and Other Court-Issued Documents. In any order, decision, or other document issued by the court that will be publicly accessible, the court shall avoid including a complete version of any personal identifying information covered by this rule, unless including it (a) is specifically required by law, court rule, standing order, or court-issued form or (b) is necessary to serve the document’s purpose.
Section 10. Appellate Court Filings. In addition to the other requirements of this rule, filers in the Supreme Judicial Court, the Appeals Court, or the Appellate Divisions of the District and Boston Municipal Courts shall comply with the following requirements:
(a) Brief. If a filer includes any complete personal identifying information in a publicly accessible brief, the filer shall at the same time file one additional, unbound copy of the brief, with that personal identifying information redacted according to this rule, clearly marked “Limited Personal Identifying Information” on the cover and without including any addendum or appendix.
(b) Record Appendix. If a document to be included in the record appendix was redacted when filed in or issued by the trial court, the same version of the document shall be included in the record appendix. If a document to be included in the record appendix was not redacted when filed in or issued by the trial court, even where complete personal identifying information was included under an exception in Section 5 or 6, the party that wants to include the document in the record appendix shall redact it as required by Section 3, unless the party obtains leave of the appellate court to include the document in unredacted form.
Added July 20, 2016, effective November 1, 2016
Commentary of the Standing Advisory Committee on the Rules of Civil and Appellate Procedure on S.J.C. Rule 1:24
This Commentary was drafted by the Supreme Judicial Court’s Standing Advisory Committee on the Rules of Civil and Appellate Procedure, which recommended the adoption of this Rule. The Court’s Standing Advisory Committee on the Rules of Criminal Procedure furnished helpful input on Section 6 and the Commentary thereto. The Commentary does not constitute part of the Rule and has not been formally adopted by the Court but is provided as an aid to understanding and applying the Rule.
This rule applies to paper documents, as well as to electronic documents that are now or may in the future be filed with or issued by all Departments of the Trial Court; the Appeals Court; and the Supreme Judicial Court. The rule does not govern the separate question whether various court documents should be made publicly available on the Internet.
The reference in Section 1 to “greater obligations imposed by the law or court” is intended to include statutes and rules that require, or authorize a court to require, impoundment or confidentiality, however labeled. See, e.g., G.L. c. 265, § 24C (requiring that court records containing rape victims’ names be “withheld from the public”); G.L. c. 6, § 178M (on judicial review of Sex Offender Registry Board decisions, records to be kept “confidential and . . . impounded”); G.L. c. 209A, § 8 (requiring that certain personal information filed in connection with requests for abuse prevention orders be “withheld from public inspection except by order of the court”); Mass. R. App. P. 16(m) (governing “references to impounded material”). Litigants should also be aware that other court rules, such as the forthcoming Uniform Rules on Access to Court Records (Trial Court Rule XIV), may impose limits on whether or how certain personal information may be included in court filings.
The term “filer” as used in Section 2 and throughout this rule includes any person or governmental or other entity making a filing (including, e.g., persons applying for criminal complaints, police officers applying for search warrants, putative interveners, and amici curiae) regardless of their status as parties.
In the definition of “Personal identifying information,” the term “financial account numbers” includes, but is not limited to, insurance policies, and account numbers and loan numbers assigned by financial service providers.
Section 3 refers to “filing” documents in court. Exhibits offered at evidentiary hearings, although not “filed” as that term is used in Mass. R. Civ. P. 5 or Mass. R. Crim. P. 32, are subject to this rule. Prior to trial or other evidentiary hearing, the parties should discuss how to handle exhibits in compliance with this rule, as well as any issues of waiver of the rule’s protection pursuant to Section 8.
In the case of documents drafted for filing in court as described in Section 4(a) (e.g., motions, memoranda, and affidavits, as opposed to pre-existing exhibits), this rule does not require the filer to prepare a second version with complete personal identifiers. Nothing in this rule limits the court’s power to order that such complete information be supplied to other parties or non-parties.
The provision in Section 4(b) requiring the filer to mark redactions creates a record that helps protect against claims of improper alteration of documents. Particularly in documents with multiple redactions, the required notation of each redaction need be no more than an asterisk or similar mark, together with a single statement, on or accompanying the document, explaining that redactions so marked were made by the filer on a specified date.
The exception in Section 5(a) does not permit inclusion of complete personal identifying information in a filing merely because such information may be useful to include in an order to be issued in the proceeding as requested by the filing. Alternatives are often available.
Thus, a motion for an order to a third party to produce records, such as a person’s hospital records under G.L. c. 233, § 79 , or a person’s criminal offender record information (CORI), shall not include the person’s unredacted personal identifying information. The motion and any resulting order may instead include redacted information, and the moving party may then, at the time the order is served on the entity required to respond to it, provide any unredacted information the entity requires in order to respond.
Similarly, a filer shall not include bank or other asset account numbers in court filings in connection with court orders that serve to secure assets to satisfy a judgment. If complete account numbers are necessary, the filer (usually the plaintiff) may provide this information separately, along with any other unredacted personal identifying information necessary to identify an account holder, to those who may need it to carry out the order.
Likewise, a bank responding to a trustee summons shall not include the entire account number in the trustee’s answer. Section 1 and Section 9 recognize that courts and filers retain flexibility to deal with such situations without unnecessarily making personal identifying information publicly accessible.
The exception in Section 5(b) for transcripts is included to avoid undue burden on the court reporter or transcriber. Section 5(b) also creates an exception for the official record of another court proceeding, filed by that court, e.g., in a certiorari action under G.L. c. 249, § 4 , for review of a District Court or Boston Municipal Court decision. Ordinarily the documents in that record will already have been redacted in accordance with this Rule, either by the parties at the time of filing or by the court at the time of issuance. This provision of Section 5(b) makes clear that the court need not independently review all of those documents to ensure that they were properly redacted.
The exception in Section 5(c) recognizes that departments of the Trial Court or the appellate courts may adopt their own rules or standing orders governing redaction of personal identifying information in the official record of an administrative adjudicatory proceeding filed by the administrative agency. This provision is included to afford flexibility to the courts in dealing with the particular redaction problems raised by the filing of these often voluminous records. The term “adjudicatory proceedings” refers to proceedings that are judicially reviewed primarily or exclusively on the agency record, under G.L. c. 30A or other law such as G.L. c. 249, § 4 . The qualifier “adjudicatory” is used because the reasons for different treatment of the records of such proceedings are less likely to apply to documents concerning other, less formal administrative proceedings.
The exception in Section 5(d) is intended to cover documents produced by a non-party pursuant to Mass. R. Civ. P. 45(b), Mass. R. Crim. P. 17(a)(2), Superior Court Rule 13 and G.L. c. 233, § 79 (hospital records), and similar court rules or laws. It is intended to be consistent with the Dwyer protocol applicable to defendants’ motions for Rule 17(a)(2) summonses. See Commonwealth v. Dwyer , 448 Mass. 122, 147-50 (2006). The exception recognizes that requiring the non-party to redact, particularly where some or all of the records may never become available to the public, would be unduly burdensome.
This section is based, with some Massachusetts-specific alterations, on Fed. R. Crim. P. 49.1(b)(7)-(9). This section addresses special considerations related to charging documents and documents created by police or other investigative entities prior to the initiation of a criminal case. Requiring redaction of such documents would impose a substantial burden on these law enforcement agencies, which necessarily must document the personal identifying information relied upon for investigative purposes. Moreover, requiring redaction of these documents would deprive clerks initiating a new criminal case or issuing an arrest warrant of the information necessary to properly identify the defendant and enter the case or warrant into, and search for existing information about the defendant already contained in, databases such as MassCourts and the warrant management system. This is necessary to ensure, among other things, that information about prior cases or warrants involving that defendant is available to the court in the pending matter, and that information about the pending matter is available to the court in any future cases involving that defendant.
Unlike the federal rule, however, Section 6 does ordinarily require redaction when one of these documents is filed by an attorney as an exhibit in another case. Thus, an attorney might need to file a search warrant, District Court charging document, or police report attached to an application for a criminal complaint, as an attachment to a motion to dismiss or suppress, or an opposition thereto, in a related Superior Court case. In that circumstance, there would be no burden on the investigative agency or need for the Superior Court clerk to have access to that information. The attorney, therefore, would be required to redact the document of personal identifying information. If that document, however, already appeared in the same court file (for example, an application for complaint attached to a District Court motion to dismiss), there would be no point in redacting the document when filed as an exhibit, and an attorney would not need to do so.
In any event, the court may make other orders regarding the redaction of documents in a criminal case file, if a different practice is warranted in a particular case.
This section makes clear that clerks are not responsible for reviewing every filed document for compliance, but it does not preclude clerks from reviewing selected documents for compliance— for example, at the time a member of the public asks to see a case file.
In determining issues concerning corrective action, the court has the discretion to consider all relevant circumstances, including but not limited to whether the violation of this rule was willful or repeated, whether it has caused or is likely to cause harm to privacy interests or financial interests, and the nature and amount of information improperly filed in unredacted form.
The exception in Section 9 for inclusion of complete personal identifying information where “necessary to serve the document's purpose” is included because some types of court documents, although directed to parties or non-parties that require specific identifying information, are included in the court file, where they are publicly accessible as a matter of law. Although the inclusion of personal identifying information should be minimized when drafting such documents, it must be recognized that sometimes, unredacted information will be necessary to serve the purpose of the document.
Section 10(b)’s provision governing documents not redacted when filed in or issued by the trial court is included because the rationales underlying the exceptions in Sections 5 and 6 ordinarily would not apply, and would not serve any useful purpose if applied, to documents presented to the appellate court in the record appendix. If inclusion of an unredacted document is warranted, Section 10(b) allows the party to do so if leave of the appellate court is obtained.