Impoundment is governed by a labyrinth of statutes, court rules, standing orders, and court orders, which make it difficult for the practitioner and the courts to identify, properly file, and withhold from public inspection the information that must be withheld. To confuse matters further, these authorities use different terms and phrases to designate the material that must be withheld, including "impounded," "withheld from public inspection," "not available for public inspection," "confidential," and "sealed." Parties and the courts must be vigilant if they wish to preserve the confidentiality of impounded material while a case is on appeal. Briefs and appendices filed in the appellate courts are stored in electronic form and material in public cases is available on the Internet and through commercial databases. Thus, it is critical that parties adhere to their responsibilities to ensure the nondisclosure of protected information.
Although the terms "sealed" and "impounded" are closely related, and frequently used interchangeably, they are meaningfully different. The Uniform Rules on Impoundment Procedure, Massachusetts Trial Court Rules VIII, define "impoundment" to "mean the act of keeping some or all of the papers, documents, or exhibits, or portions thereof, in a case separate and unavailable for public inspection. It shall also be deemed to include the act of keeping dockets, indices, and other records unavailable for public inspection." Put more simply, "impoundment" prevents the public, but not the parties, from gaining access to the material. By contrast, "sealing" prevents not only the public, but the parties and their counsel from gaining access to the material; only appropriate court personnel can access sealed information, unless limited disclosure is otherwise ordered. Regardless of the terminology used, parties must be aware of and comply with the applicable rules regarding the proper filing of the information in any appeal.
Appellate level impoundment procedures are governed by Rule 1:15 of the Rules of the Supreme Judicial Court ("S.J.C. Rule 1:15 ") and the Massachusetts Rules of Appellate Procedure . The rules apply regardless of whether the appeal is made to a single justice or to the full court or panel. All information impounded in the trial court will remain impounded in the appellate courts, unless otherwise ordered, provided the parties follow the required procedures. It is important to stress that the clerks of the appellate courts are under no duty to review the contents of filings for the purpose of identifying impounded information. Therefore, parties must comply with Rules 16(d) , 16(m) , 18(a) , and 18(g) of the Massachusetts Rules of Appellate Procedure if they wish to keep the information confidential. These rules require that:
- the parties refrain from disclosing impounded material, unless necessary.
- the disclosing party, when disclosure is necessary, file and serve a written notice of the disclosure or filing of such information.
- the cover of briefs, record appendices, and other filings containing impounded material clearly indicate its inclusion (e.g., "Impounded" or "Contains references to impounded material").
- in cases where only certain portions of the record need to be impounded, parties file a separate record appendix volume containing only that material, its cover labeled as containing impounded material.
- the parties use a pseudonym or initials if a party's name is confidential or impounded; in practice, a pseudonym or initials can be used, including for family members and relatives whose familial relationship would otherwise reveal the protected name.
- a copy of any order of impoundment be included in the record appendix.
- the parties not disclose impounded material at oral argument unless necessary and, in such instances, notify the clerk in advance and, in appropriate cases, make such disclosures in a manner which protects the confidential information.
Some Practical Tips
As noted at the start of this article, there are many statutes, rules, and standing orders that govern whether particular types of material or information need to be impounded. It is beyond the scope of this article to set out all of those various authorities, and parties must conduct their own research to determine what materials in any particular case might need to be impounded. That said, the Appeal Court's website, is a useful initial resource to consult. It contains a list of information subject to impoundment , with reference to the applicable statutes, court rules, and standing orders. The list is not an exhaustive compilation, and the precise scope of each topic is stated in the applicable source.
Unlike trial court practice, it is rarely necessary to file a motion to impound in the appellate courts. As noted above, if the information sought to be impounded was earlier impounded in the trial court, it will remain impounded in the appellate court if counsel follows the proper procedures. Thus, no motion is necessary in the appellate court. However, when a party seeks to impound material on appeal that was not impounded below, then a "motion to impound" must be filed, accompanied by an affidavit showing good cause for the impoundment. Note that it makes little sense to seek to impound material in the appellate court record that is public in the trial court's record. In those circumstances, a motion to impound should first be made in the trial court.
A trial court order impounding or refusing to impound material is subject to review by a single justice of the Appeals Court. To seek review, the appealing party must file an entry fee, a petition for review, memorandum of law, certificate of service, and copies of the relevant documents filed in the trial court. Where the trial court has denied a motion to impound material, the appealing party may file a motion to file the subject information under seal, or file a motion requesting to file the information when so ordered by the single justice. If the single justice later denies the petition, the material will be public unless otherwise ordered.
In certain instances, the protection of material as privileged or confidential can be waived and the material may be properly introduced as evidence in a trial court proceeding. See Mass. G. Evid. sec. 523 . On appeal, such information is no longer protected and categorized as impounded.
When a party files impounded material without complying with the applicable rules and filing procedures, any counsel to the case may file a motion to strike the document.
Protecting Personal Identifying Data
In addition to the rules governing impoundment, lawyers must be aware of S.J.C. Rule 1:24 regarding protection of personal identifying data. The rule requires all attorneys and persons who file any document in a court of the Commonwealth to refrain from using personal identifying data elements in documents they file with the court. Personal identifying data elements include: social security numbers; taxpayer identification numbers; credit card or other financial account numbers; driver's license numbers, state-issued identification card or passport numbers; and a mother's maiden name. These items should be limited in their use, and when they are included, the numbers should be limited to the last four digits and only the first initial of the maiden name should be used. The rule contains exemptions, including for instance, when the information in the document is specifically required by law, court rule, standing order, court form, or court order; the filer reasonably believes that the complete information is needed to resolve an issue before the court or to establish the identity of a person before the court; or the document is the official record of an agency adjudicatory proceeding or another court proceeding. However, the filer should exercise particular caution before including, based on a belief of necessity, any complete data element in an appellate court filing. If a filer includes any complete data element in a "public" filing in an appellate court, the filer should simultaneously file one additional, unbound copy of the filing, with such data element redacted or complete data omitted according to the guidelines, clearly marked "Limited Personal Identifying Data" on the cover and without including any addendum or appendix.
A Closing Thought
Maintaining the confidentiality of information designated as such by the Legislature and courts is of utmost importance to the citizens of the Commonwealth, particularly as filings in all courts become available on the Internet and via commercial databases. Parties are obligated to identify and adhere to the applicable rules and procedures when filing such information in the appellate courts. It is hoped that this introduction will provide a helpful roadmap for parties when preparing their filings.
This Guide is based on an article that appeared in the 2012 winter edition of the Boston Bar Journal and is reprinted with its permission. The Appeals Court, which administers this web site as a public service, provides no legal assistance or advice and assumes no liability for the use of the information provided herein.