Upon entry of an order of impoundment, or pursuant to an impoundment designation set forth in a statute, court rule, standing order, or case law, the clerk shall make a notation in the docket indicating what material has been impounded and the duration of its impoundment status. All impounded material shall be clearly marked, and kept separate and unavailable for public inspection. The impounded material shall be available to the court, the clerk and designated court personnel, the attorneys of record, the parties to the case, and other persons designated by the court, unless otherwise ordered by the court. Upon expiration or other termination of the order of impoundment, the material shall be returned to the public case record, unless other arrangements have been ordered, and the docket marked accordingly.
As amended April 24, 2015, effective October 1, 2015.
URIP Rule 9 prescribes the clerk's duties to maintain impounded material and to make such material unavailable for public inspection. See e.g., S.J.C. Rule 3:12, Canon 3(A)(6) ("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"). The duties imposed by this rule encompass information or material impounded by court order, as well as information or material designated as impounded by statute, court rule, standing order, or case law. Unless the court orders otherwise, access to impounded material is limited to the court, the clerk and authorized court personnel, the attorneys of record, the parties to the case, and persons named by the court. URIP Rule 9 also provides for the return of impounded material to the case record upon expiration of the impoundment order. Thus, a person who desires continuation of the impoundment order after the time set for its expiration shall seek an extension of the order by a motion pursuant to URIP Rule 10.
It is important that the existence of the case itself is not impounded. Certain statutes require specific proceedings or records to be impounded. When such a statute applies, or in the rare instance when a court orders the impoundment of a case in its entirety, the case shall retain its public docket number and its existence in the court's docket and indices, with pseudonyms used for each party. In contrast, when a case record is “sealed,” the public, the parties, and counsel of record are prevented from gaining access to the material; only appropriate court personnel can access sealed information, unless limited disclosure is otherwise ordered. See Pixley v. Commonwealth , 453 Mass. 827, 836 n.12 (2009).
When, as in most instances, only certain information in a case is required to be impounded, all other aspects of the case will remain public. Unless otherwise ordered, the case caption, docket number, names of parties, counsel of record, entries on the docket, and filings not otherwise designated as impounded, shall be public. A motion for impoundment, supporting affidavit, any opposition or other paper filed pursuant to these rules, and the court's order of impoundment, shall be public documents, unless otherwise ordered by the court. As such, the docket, the case number, and the reason for the order of impoundment, as well as any non-impounded materials, remain public while the impounded case records are kept separate and unavailable for public inspection.
Impounded materials shall be kept separate from other papers in the case. See Notes for URIP Rules 11 and 13. If the court facility has storage space available, the impounded materials should be stored in a location separate from any portion of the case record that remains available for public inspection. If a separate storage location is not available in a particular court facility, the impounded materials shall be conspicuously marked as impounded and handled in a manner that avoids their inadvertent dissemination to the public. For example, the impounded material can be stored in an envelope that is sealed, clearly marked “Impounded,” and placed conspicuously in the case record. The docket shall contain a notation as to the location of any impounded materials that the clerk's office is storing in a separate location from the public case record.