(a). Good Cause. An order of impoundment, whether ex parte or after notice, may be entered only upon a written finding of good cause.
(b). Specificity. An order of impoundment shall state specifically what material is to be impounded, and, where appropriate, may specify how impoundment is to be implemented. An order of impoundment shall include the date of issuance and shall specify the duration of the order with a date certain for expiration of the order. In its order, the court may allow persons other than those described in Rule 9 of these rules to have access to impounded material, and may order that appropriate redactions or notations be made in the docket and indices kept by the clerk.
(c). Narrow Tailoring. The court shall tailor the scope of the impoundment order so that it does not exceed the need for impoundment. The court may order that the movant or the filer of any material submit a redacted copy of the impounded document to the clerk for public inspection.
(d). Public Inspection. The order shall be entered on the docket, kept in the public file, and made available for public inspection. The order shall provide sufficient information for the public to identify the case caption, the case number, and to ascertain the grounds, duration, and scope of the impoundment. All information stating or disclosing the impounded material shall be omitted or redacted from the order prior to public inspection. A copy of the order shall be affixed to the envelope or other receptacle containing the court’s copy of the impounded materials.
As amended April 24, 2015, effective October 1, 2015.
URIP Rule 8 provides the procedures governing the issuance of an order of impoundment.
Definition of “Good Cause”
It is “[t]hrough the balancing process that a judge makes the determination of 'good cause.'” H.S. Gere & Sons, Inc. v. Frey , 400 Mass. 326, 329 (1987). To determine whether good cause is shown, 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 v. Clerk of the Superior Court for Criminal Business in Suffolk County , 462 Mass.76, 83 (2012); Boston Herald, Inc. v. Sharpe , 432 Mass. 593, 604-605 & 604 n.22 (2000); In re Globe Newspaper Co., Inc. , 461 Mass. 113, 120-121 (2011); Commonwealth v. George W. Prescott Pub. Co., LLC , 463 Mass. 258, 268 (2012). A party's constitutional rights, investigative secrecy, and the safety of a person or the public are also concerns. See, e.g., New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County , 462 Mass. 76, 86, 92, 93 (2012); Commonwealth v. Silva , 448 Mass. 701, 708 (2007). A legitimate expectation of privacy ordinarily is sufficient to constitute good cause. H.S. Gere & Sons, Inc. v. Frey , 400 Mass. 326, 330 (1987). But see George W. Prescott Pub. Co. v. Register of Probate for Norfolk County , 395 Mass. 274, 281 (1985) (expectation of privacy was insufficient to continue impoundment of financial statements of public figure who was alleged to have misused public funds). Allegations of potential embarrassment, or the fear of unjustified adverse publicity, are not sufficient to constitute good cause. George W. Prescott Pub. Co. v. Register of Probate for Norfolk County, 395 Mass. at 279.
Written Finding of Good Cause
In determining “good cause,” the court shall consider the factors and perform the balancing test set forth in URIP Rule 7(b). See also Republican Co. v. Appeals Court , 442 Mass. 218, 223 (2004) (“Impoundment is always the exception to the rule”); H.S. Gere & Sons, Inc. v. Frey , 400 Mass. 326, 332 (1987) (impoundment “will not be routinely granted”). URIP Rule 8 requires that a judge allowing impoundment shall enter written findings. Findings stated “on the record” in open court are insufficient. The order shall provide sufficient information for the public to identify the case caption, the case number, and to ascertain the grounds, duration, and scope of the impoundment. As such, the order shall include the date of issuance of the order, its duration, the particular information that is impounded, and the identity of any third persons who are permitted to view the impounded information.
If the court determines that good cause is shown, the court must tailor the scope of the impoundment order and limit it to the requirements of the case's particular facts and circumstances. New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County , 462 Mass. 76, 85, 91 (2012); Boston Herald, Inc., 432 Mass. at 604 – 605 & n.22. See also Adams v. Adams, 459 Mass. 361, 361 n.1 (2011) (impoundment order was not narrowly tailored so as not to exceed the need for impoundment, especially since a full trial on the merits had been concluded, documents had been introduced into evidence, and important legal issues had been raised and litigated on appeal with respect to that evidence); Republican Co. v. Appeals Court , 442 Mass. 218, 223 n.8 (2004) (burden falls on party seeking impoundment to demonstrate that the impoundment order is narrowly tailored).
The Supreme Judicial Court has observed that:
Judges enjoy . . . flexibility in crafting remedies appropriate to the parties' particular interests and needs. 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 Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County , 462 Mass. 76, 85-86 (2012) (citations and footnote omitted).
Impoundment should be no more extensive than necessary. Although it is often easier to impound more than is necessary, the court should be careful to impound only the portions of the record that require impoundment. An entire case record should not be impounded to protect the confidentiality of some documents. An entire filing should not be impounded to protect the confidentiality of an exhibit. When possible, redacted versions of impounded documents should be filed. The court should be skeptical of arguments that following proper procedures is too cumbersome.
Contents of Order
All court orders entered under these rules shall be open to the public. The court shall enter a written order either granting or denying the motion on a form substantially similar to the form provided in Section 4 file size 1MB of [the] Handbook. Any order granting in whole or in part a motion for impoundment shall state the following with as much specificity as possible, without revealing the specific information subject to the impoundment order:
(A) the case caption and case number;
(B) the nature of the case in which the order is being entered;
(C) that, after a hearing, the court finds that: (i) good cause exists based on 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, constitutional rights, and the reason for the impoundment; (ii) the degree, duration, and manner of impoundment ordered by the court are no broader than necessary to protect the interests set forth in subdivision (C)(i); and (iii) no less restrictive measures are available to protect the interests;
(D) the particular grounds for determining the information impounded;
(E) the particular information that is determined to be impounded (without disclosing it);
(F) the duration of the impoundment with a date certain for expiration of the order and, if the court has ordered that the ex parte order shall be extended under URIP Rule 3(b), the grounds therefor;
(G) whether any party's name is to be impounded, and, if so, the particular pseudonym or other term to be substituted for the party's name in the court's docket and index;
(H) identification of any third persons who are permitted to view the impounded information; and
(I) that the clerk is directed to make the order available for public inspection, with appropriate redactions if necessary to preserve the impounded information.
Interlocutory Order is Subject to Continuing Existence of Good Cause
Once the order of impoundment is entered, it remains an interlocutory order subject to the existence of “good cause.” The order carries no continuing presumption of validity and it may be subject to subsequent challenges. New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County , 462 Mass. 76, 84-85 (2012); Republican Co. v. Appeals Court , 223-224 (2004). “However . . . [judges should] separate frivolous, repetitive, or harassing motions from those that are not, and [ensure] that parties who have secured impoundment for a certain time will not during that term be required repeatedly to make their case absent a real possibility that the good cause that once supported impoundment has in some manner become less pressing. Such screening is a consummate function of trial judges.” Republican Co., 442 Mass. at 225-226