(a) Purpose. These rules are intended to provide public access to court records and information while protecting the security and privacy of litigants and non-litigants. 

(b) Scope. These rules govern access to the court records of the Trial Court. These rules apply to all court records, regardless of the physical form, method of recording, or method of storage, subject to these rules and the technological capacity of the Trial Court to make such a court record available. Administrative records of the Trial Court are not within the scope of these rules. 

(c) General Policy. Publicly available court records in the custody of a Clerk and located in a courthouse shall be available to any member of the public for inspection and/or copying during the regular business hours of the court, consistent with these rules. Electronic court records may be made available in part or in their entirety at the courthouse consistent with Rule 2, as compiled data consistent with Rule 3, or by remote access consistent with Rule 5

(d) Types of access. Access to court records may be courthouse access or remote access. Courthouse access includes requests to the Clerk at the counter and access through a computer kiosk. Remote access includes both an internet-based portal for the public and an Internet-based Attorney’s Portal for registered Massachusetts attorneys. 

(e) Definitions. 

“Access” means the ability to inspect and obtain a copy of a court record. 

“Administrative record” means any record pertaining to the management, supervision, or administration of the Trial Court, including any court department, committee, or board appointed by or under the direction of the Trial Court or any department thereof, the Office of the Commissioner of Probation, Office of the Jury Commissioner, or the office of any Clerk. 

“Bulk data” means electronic court records as originally entered in Trial Court case management database(s), not aggregated or compiled by computerized searches intended to retrieve specific data elements. 

“Compiled data” means electronic court records that have been generated by computerized searches of Trial Court case management database(s) resulting in the compilation of specific data elements. 

“Clerk” means a Clerk, Clerk-Magistrate, Register of Probate, Recorder of the Land Court, and their assistants or designees. 

“Court” means any department of the Trial Court. 

“Court record” means all or any portion of court papers, documents, exhibits, orders, recordings, dockets, and other records that are made, entered, filed, and/or maintained by the Clerk in connection with a case or proceeding. 

“Docket” means the paper or electronic list of case information maintained by the Clerk that contains the case caption, case number, and a chronological entry identifying the date and title of each paper, order, or judgment filed in a case, and the scheduling and occurrence of events in the case. 

“Electronic court record” means the whole or partial information content of court records, stored in an electronic database. This shall include an audio or video recording, analog or digital, of a proceeding, to the extent permitted by these rules and subject to the Trial Court’s technological capacities. 

“Prohibited from public disclosure” means any court record, or portion thereof, to which public access is restricted pursuant to any Federal or state statute, court rule, standing order, case law, or court order. 

“Public” or “member of the public” means any person and any business or non-profit entity, association, or government entity, or organization, including the media, who seeks access to a court record. The term “public” does not include (1) Judicial Branch staff, acting in their official capacities; (2) authorized persons or entities, private or governmental, who assist the court in providing court services; (3) public agencies or law enforcement departments whose access to court records is defined by statute, court rule, standing order, case law, or court order; and (4) the parties to a case, their lawyers, victims as authorized by G.L. c. 258B, § 3 , or their authorized representatives requiring access to the court record in a specific case. 

“Publicly available court record” means any court record that is not prohibited from public disclosure. 

“Remote access” means accessing court records through electronic means from outside a courthouse. 

Approved July 20, 2016, effective November 1, 2016

Notes 

Rule 1(a), Purpose. These rules are intended to provide public access to designated publicly available court records and information, while protecting the security and privacy of litigants and non-litigants. 

Rule 1(b), Scope. These rules govern access by the public to the court records maintained by a Clerk in a court, whether the court record is maintained in paper or electronic form. 

These rules apply only to access to court records by the public. The rules do not limit access to court records by a party to an action or proceeding, by the attorney or authorized representative of such party, by Judicial Branch staff or those entities which assist the Judicial Branch in providing services, or any other persons or entities entitled to access by Federal or state law, statute or rule, unless otherwise required by law or court order. 

Rule 1(c), General Policy. Court records in the custody of a Clerk shall be available for public access during normal business hours consistent with these rules, unless otherwise prohibited by law or court order. A judge has the authority to impound an otherwise public court record. See Trial Court Rule VIII, Uniform Rules on Impoundment Procedure (as amended effective October 1, 2015).

Massachusetts has long recognized that the public has a common law right of access to certain court records. New England Internet Café, LLC v. Clerk of the Super. Ct. for Criminal Bus. in Suffolk Cnty. , 462 Mass. 76, 82-83 (2012), citing Republican Co. v. Appeals Ct. , 442 Mass. 218, 222 (2004). See also Massachusetts Body of Liberties, art. 48 (1641) (“Every inhabitant of the Country shall have free liberty to search and review any rolls, records or registers of any Court or office”). Therefore, most court records are presumptively public documents, unless required to be withheld from public inspection by statute, court rule, standing order, case law, or court order. New England Internet Café, LLC, 462 Mass. at 83, citing Republican Co., 442 Mass. at 222-223. See also Boston Herald, Inc., 432 Mass. at 608; Newspapers of New England, 403 Mass. at 631-632, 637. This right of public access has been described as the “general principle of publicity,” applicable to court records and court proceedings. Ottaway Newspapers, Inc. v. Appeals Ct. , 372 Mass. 539, 546 (1977). The general principle of publicity is enhanced by a qualified First Amendment right of access in criminal proceedings. See Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Ct. Dep’t , 403 Mass. 628, 635 (1988) (stating that there is “a two-part test for determining whether a First Amendment right of access applies to any particular proceeding. First, the proceeding must have an historic tradition of openness, and second the public’s access must play ‘a significant positive role in the functioning of the particular process in question.’”). The Supreme Judicial Court recognizes the qualified right of public access to court records in criminal proceedings. See Boston Herald, Inc. v. Sharpe , 432 Mass. 593, 606–08 (2000) (“balancing the public’s right to inspect documents against a defendant's rights guaranteed by the Sixth Amendment to a fair trial.”). 

However, while the public has a right to obtain a copy of a court record, subject to the procedures described in Rule 2, the presumption of public access is not absolute. Commonwealth v. Winfield , 464 Mass. 672, 674 (2013). See also Commonwealth v. Pon , 469 Mass. 296, 312 (2014) (“Although this common-law presumption [of public access to judicial records] is of paramount importance, like its constitutional counterpart, it is not absolute”) (alterations added); Nixon v. Warner Communications, Inc. , 435 U.S. 589, 597 (1978) (“It is uncontested … that the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.”). The public’s qualified right of access includes the right to view or “inspect” a non-impounded record free of charge during the court’s regular business hours. A limitation of this right exists in the court’s “inherent equitable power to impound its files in a case and to deny public inspection of them when justice so requires.” George W. Prescott Pub. Co. v. Reg. of Probate for Norfolk Cnty. , 395 Mass. 274, 277 (1985), quoting Sanford v. Boston Herald-Traveler Corp. , 318 Mass. 156, 158 (1945). Such a restriction on public access to records requires a showing of good cause. "[A] judge must balance the rights of the parties based on the particular facts of each case and take into account 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 for the request." New England Internet Café, LLC, 462 Mass. at 83 (citations omitted). 

Clerk’s Responsibilities. Pursuant to S.J.C. Rule 3:12, Canon 3(A)(6), the “Clerk-Magistrate shall facilitate public access to court records that, by law or court rule, are available to the public and shall take appropriate steps to safeguard the security and confidentiality of court records that are not open to the public.” A Clerk "shall have responsibility for the internal administration of his office, including personnel, staff services and record keeping." State Bd. of Retirement v. Bulger , 446 Mass. 169, 176 (2006), quoting G.L. c. 218, § 8 . Clerk-magistrates maintain "all records, books and papers" filed in "their respective offices," G.L. c. 218, § 12 , and must make available public documents on request and protect impounded documents. In re Powers , 465 Mass. 63, 67 (2013). Essential to these duties is the Clerk’s responsibility for the integrity of court records by protecting such records from any unauthorized alteration, mutilation, or theft. 

Record Retention. The retention and eventual destruction of court records in the Trial Court are governed by Supreme Judicial Court Rule 1:11. The Massachusetts public records statute, G.L. c. 66, § 10 , and its Federal counterpart, the Freedom of Information Act, 5 U.S.C. §§ 551 and 552 , do not apply to records of the Judicial branch. See G.L. c. 4, § 7, Twenty-sixth ;  G.L. c. 66, § 10 ; Kettenbach v. Board of Bar Overseers , 448 Mass. 1019, 1020 (2007); Lambert v. Executive Dir. of the Judicial Nominating Council , 425 Mass. 406, 409 (1997); New Bedford Standard-Times Pub. Co. v. Clerk of the Third Dist. Ct. of Bristol , 377 Mass. 404, 407 (1979); Ottaway Newspapers, Inc. v. Appeals Ct. , 372 Mass. 539, 545-546 (1977); Sanford v. Boston Herald-Traveler Corp. ,  318 Mass. 156, 157 (1945); Peckham v. Boston Herald, Inc. , 48 Mass. App. Ct. 282, 286 n.6 (1999). See also G.L. c. 66A, § 1 (Fair Information Practices Act limited to executive branch agencies and legislatively-created authorities); 801 Code Mass. Regs. § 3.01(3) pdf format of 801 CMR 3
(“Freedom of Information” regulations [801 Code Mass. Regs. § 3.00 et seq.] limited to executive branch agencies); 950 Code Mass. Regs. § 32.03 pdf format of 950 CMR 32
(2015) (public records regulations inapplicable to judicial branch). 

Rule 1(d), Types of Access. The Trial Court offers several different methods of access to publicly available court records. The traditional and most common method is through a request at the counter of a Clerk’s office for the assistance of court personnel in obtaining a case file. Because many court records are now maintained in electronic case management databases, all courts also maintain in the Clerk’s office a public computer kiosk at which members of the public may search and access court information. These types of access are governed by Rule 2. In addition, remote access through the Internet is available in two forms. The first is a Public Internet Portal through which members of the public may search and access electronic records. The second is the so-called Attorney Portal, which allows registered Massachusetts attorneys access to information and calendar events. These types of access are governed by Rule 5. Finally, in circumstances described in Rule 3, the Court Administrator may provide data compiled from the electronic case management databases. 

Rule 1(e), Definitions. Rule 1(e) contains the definition of terms used in the rules. “Administrative record” as defined in Rule 1(e) includes any information maintained by the Trial Court that is not a court record. This definition includes records kept by the Trial Court that are not filed in relation to the litigation or resolution of a specific case or proceeding (e.g., court e-mail, inter-office memoranda, personnel information, travel vouchers, etc.); administrative and management reports of the Trial Court; and information gathered, maintained, or stored by a governmental agency or other entity to which the court has access but which is not part of the court record. 

“Court record” means all or any portion of court papers, documents, exhibits, orders, recordings, dockets, and other records that are made, entered, filed, and/or maintained by the Clerk in connection with a case or proceeding. The definition of a “court record” includes an audio recording or official transcript of a proceeding, and any electronic duplicate or original court record.  Commonwealth v. Winfield , 464 Mass. 672, 678-679 (2013), and cases cited therein; Commonwealth v. Silva , 448 Mass. 701, 706 n.8 (2007), quoting Boston Herald, Inc. v. Superior Court Dep’t of the Trial Court , 421 Mass. 502, 505 (1995). A “court record” also includes a list identifying the names of jurors who have been empaneled and rendered a verdict in a criminal case. Commonwealth v. Fujita , 470 Mass. 484, 486 (2015). “Court record” does not include court papers, documents, exhibits, orders, dockets, and other records that are not filed with the court or otherwise created in connection with the case file. Commonwealth v. Winfield, 464 Mass. at 679. Discovery documents, interrogatories, backup room recordings, and other documents and recordings not filed with the court are not part of the “court record.” 

Court records do not include judicial work product related to the deliberative process, including confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases. See Matter of the Enforcement of a Subpoena , 463 Mass. 162, 174-175, 178 (2012) (recognizing absolute judicial privilege protects confidential communications among judges and court staff). 

As used in these rules, “court records” is the equivalent of “judicial record” as that term is used in the case law. See, e.g., Commonwealth v. Fujita , 470 Mass. 484, 487 (2015); Republican Co. v. Appeals Court , 442 Mass. 218, 222 (2004). These Rules, however, use the term “court record” instead of “judicial record” in order to be consistent with other Rules of the Trial Court and the notes thereto. See, e.g., Trial Court Rule IX, Rule 2; Notes to Mass. R. Civ. P. and Mass. R. Dom. Rel. 12, 19, 41, 60, 63, 64; Notes to Mass. R. Crim. P. 4, 8, 12. 

Prior Trial Court Administrative Orders. To the extent any preexisting administrative order of the Trial Court or the Chief Justice of the Trial Court are inconsistent with these rules, the rules control and govern future procedures and access to court records.

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