INTRODUCTORY NOTE

(a) General Duty to Give Evidence. A privilege is an exception to the general duty of a witness to offer evidence. Commonwealth v. Corsetti, 387 Mass. 1, 5, 438 N.E.2d 805, 808 (1982).

(b) Interpretation of Privileges. “Testimonial privileges are exceptions to the general duty imposed on all people to testify, and therefore must be strictly construed” (quotations and citations omitted). Commonwealth v. Oliveira, 438 Mass. 325, 330, 780 N.E.2d 453, 457 (2002). See also Matter of a Grand Jury Subpoena, 430 Mass. 590, 593–594, 597–599, 722 N.E.2d 450, 453, 455–456 (2000); Commonwealth v. Corsetti, 387 Mass. 1, 5, 438 N.E.2d 805, 808 (1982). In criminal cases, even statutory privileges may be pierced when nec­essary to preserve a defendant’s constitutional rights. See Commonwealth v. Dwyer, 448 Mass. 122, 144, 859 N.E.2d 400, 417 (2006).

(c) Most Privileges Are Not Self-Executing. Most privileges require “some action by the patient or client . . . to ‘exercise’ the privilege.” Commonwealth v. Oliveira, 438 Mass. 325, 331, 780 N.E.2d 453, 458 (2002) (psychotherapist-‌patient privilege). See Commonwealth v. Pelosi, 441 Mass. 257, 261, 805 N.E.2d 1, 6 (2004) (social worker–client privilege); District Attorney for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633–634, 481 N.E.2d 1128, 1131 (1985) (attorney-client privilege); Commonwealth v. Brennan, 386 Mass. 772, 780, 438 N.E.2d 60, 65 (1982) (privilege against self-‌incrimination). The Legislature can create a privilege that is automatic and that does not require any action on the part of the holder of the privilege. See Commonwealth v. Oliveira, 438 Mass. at 331 n.7, 780 N.E.2d at 458 n.7 (“the sexual assault counsellor-‌victim privilege created by G. L. c. 233, § 20J . . . does not suggest that the victim need do anything to ‘exercise’ the privilege contained therein, or to ‘refuse’ to disclose the communications, or to ‘prevent’ the counsellor from disclosing the communications.”). See also Borman v. Borman, 378 Mass. 775, 787, 393 N.E.2d 847, 856 (1979) (Code of Professional Responsibility applicable to lawyers is self-executing). In the case of a privilege that is not self-executing, it may be appropriate for the proponent of the privilege to temporarily assert the privilege pending notice to the party which holds the privilege. See Commonwealth v. Oliveira, 438 Mass. at 332 n.8, 780 N.E.2d at 459 n.8.

(d) Confidentiality Versus Privilege. There is a distinction between a duty of confidentiality and an evidentiary privilege. See Commonwealth v. Vega, 449 Mass. 227, 229 n.7, 866 N.E.2d 892, 894 n.7 (2007), citing Commonwealth v. Brandwein, 435 Mass. 623, 628 n.7, 760 N.E.2d 724, 729 n.7 (2002). A duty of confidentiality obligates one, such as a professional, to keep certain information, often about a client or patient, confidential. It also may impose an obligation on a State agency. See G. L. c. 66A, §§ 1, 2.

“A provider’s obligation to keep matters confidential may stem from a statute imposing such an obligation (oftentimes with a host of exceptions to that obligation), or may arise as a matter of professional ethics.” Commonwealth v. Oliveira, 438 Mass. 325, 335, 780 N.E.2d 453, 461 (2002). When a duty of confidentiality is set forth in a statute, there may or may not be an accompanying evidentiary privilege. See Commonwealth v. Vega, 449 Mass. at 233–‌234, 866 N.E.2d at 896–897 (holding that G. L. c. 112, § 172, imposes a duty of confidentiality and creates an evidentiary privilege). Sometimes, the duty of confidentiality and the corresponding evidentiary privilege are set forth in separate statutes. See, e.g., G. L. c. 112, §§ 135A and 135B (social workers), and G. L. c. 112, § 129A, and G. L. c. 233, § 20B (psychologists and psychotherapists). In other cases, the duty of confidentiality and a privilege exist in the same statute. See Commonwealth v. Vega, 449 Mass. at 232, 866 N.E.2d at 896, citing G. L. c. 233, § 20J (sexual assault counselors) and G. L. c. 233, § 20K (domestic violence counselors).

In some circumstances, when a provider breaches a duty of confidentiality, the absence of an accompanying evidentiary privilege may permit a party in litigation to gain access to the information or to offer it in evidence. See Com­monwealth v. Brandwein, 435 Mass. at 628–629, 760 N.E.2d at 728–729 (access to information improperly disclosed by a nurse in violation of her pro­fessional duty of confidentiality was not otherwise covered by an evidentiary privilege); Commonwealth v. Senior, 433 Mass. 453, 457 n.5, 744 N.E.2d 614, 618 n.5 (2001) (noting the distinction between the confidentiality of medical and hospital records under G. L. c. 111, § 70, and the absence of a physician-‌patient privilege).

(e) Impounding Versus Sealing. In Pixley v. Commonwealth, 453 Mass. 827, 906 N.E.2d 320 (2009), the Supreme Judicial Court addressed the difference between impounding and sealing:

“The terms ‘impounded’ and ‘sealed’ are closely related and often used interchangeably, but are meaningfully different. Under the Uniform Rules o[n] Impoundment Procedure 1708 (LexisNexis 2008), which governs impoundment in civil proceedings and guides practice in criminal matters as well, ‘impoundment’ means ‘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.’ Rule 1 of the Uniform Rules o[n] Impoundment Procedure. Consequently, an order of impoundment prevents the public, but not the par­ties, from gaining access to impounded material, unless other­wise ordered by the court. A document is normally ordered ‘sealed’ when it is intended that only the court have access to the document, unless the court specifically orders limited disclosure. Therefore, we directed in Commonwealth v. Martin, [423 Mass. 496, 505, 668 N.E.2d 825, 832 (1996),] that the record of the in camera hearing ‘should be kept, under seal.’ Similarly, we ordered that privileged psychological or coun­seling records of an alleged victim of a sexual assault be ‘retained in court under seal,’ but permitted defense counsel to have access pursuant to a strict protective order. Commonwealth v. Dwyer, 448 Mass. 122, 146, 859 N.E.2d 400, 419 (2006).”

Pixley v. Commonwealth, 453 Mass. at 836 n.12, 906 N.E.2d at 328 n.12. Martin hearings are discussed in the note to Section 511(b), Privilege Against Self-Incrimination: Privilege of a Witness. The Lampron-Dwyer protocol is sum­mar­ized in Section 1108, Access to Third-Party Records Prior to Trial in Crim­inal Cases (Lampron-Dwyer Protocol).

(f) Examples of Relationships in Which There May Be a Duty to Treat Information as Confidential Even Though There Is No Testimonial Privilege. Examples include the following:

(1) Patient Medical Information. There is no doctor-patient privilege recognized under Massachusetts law. Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 522–523 n.22, 467 N.E.2d 126, 136–137 n.22 (1984). See also Commonwealth v. Senior, 433 Mass. 453, 456–457, 744 N.E.2d 614, 617 (2001); Tower v. Hirschhorn, 397 Mass. 581, 588, 492 N.E.2d 728, 733 (1986). However, physicians have a duty not to make out-of-court disclosures of med­ical information about the patient without the patient’s consent, Alberts v. Devine, 395 Mass. 59, 67–68, 479 N.E.2d 113, 119, cert. denied sub nom., Carroll v. Alberts, 474 U.S. 1013 (1985), unless disclosure is necessary to meet a serious danger to the patient or others. Id. A breach of doctor-patient confidentiality does not require exclusion of the evidence, Commonwealth v. Senior, 433 Mass. at 457 n.5, 744 N.E.2d at 618 n.5, citing Schwartz v. Goldstein, 400 Mass. 152, 153, 508 N.E.2d 97, 99 (1987), but may subject the offending doctor to an action for damages. Alberts v. Devine, 395 Mass. at 65–‌69, 479 N.E.2d at 118–120.

(2) Student Records. “There is no privilege which would prevent the introduction of relevant school records in evidence at a trial.” Commonwealth v. Beauchemin, 410 Mass. 181, 185, 571 N.E.2d 395, 398 (1991). However, the Legislature has recognized that privacy interests are at stake. School records pertaining to specific individuals are not subject to disclosure under our public records law if disclosure “may constitute an unwarranted invasion of personal privacy.” G. L. c. 4, § 7, Twenty-sixth (c). See also G. L. c. 66, § 10. Access to student records is also restricted under regulations promulgated by the State board of education pursuant to G. L. c. 71, § 34D. See Commonwealth v. Buccella, 434 Mass. 473, 477, 751 N.E.2d 373, 378 (2001) (third persons may access “student records” only with written consent from student or student’s parents unless an exception promulgated by regulation applies).

(3) Special Needs Student Records. Records of the clinical history and evaluations of students with special needs created or maintained in accordance with G. L. c. 71B “shall be confidential.” G. L. c. 71B, § 3.

(4) News Sources and Nonpublished Information. Before ordering a reporter to divulge a source and the information gathered, a judge must “consider the effect of compelled disclosure on values underlying the First Amend­ment and art. 16.” Petition for Promulgation of Rules Regarding the Protection of Confidential News Sources & Other Unpublished Info., 395 Mass. 164, 171, 479 N.E.2d 154, 158 (1985). Accordingly, a judge must balance the public in­ter­est in the use of every person’s evidence against the public interest in pro­tecting the free flow of information. Matter of a John Doe Grand Jury Investigation, 410 Mass. 596, 599, 574 N.E.2d 373, 375 (1991). See also Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 403 n.33, 822 N.E.2d 667, 696 n.33 (2005).

(5) Certain Documents, Records, and Reports. A nonexhaustive list of confidentiality statutes includes the following:

G. L. c. 4, § 6, Twenty-sixth (documents and records);

G. L. c. 6, § 167 et seq. (Criminal Offender Record Information [C.O.R.I.]);

G. L. c. 41, § 97D (reports of rape and sexual assault);

G. L. c. 66A, §§ 1, 2 (personal data held by Commonwealth agencies);

G. L. c. 111, §§ 70, 70E (hospital records);

G. L. c. 111, § 70F (HIV test results);

G. L. c. 111, § 70G (genetic testing);

G. L. c. 111B, § 11 (alcohol treatment);

G. L. c. 111E, § 18 (drug treatment);

G. L. c. 112, § 129A (psychologist-patient communications);

G. L. c. 119, § 51E (Department of Children and Families records);

G. L. c. 119, §§ 60–60A (juvenile records);

G. L. c. 123, §§ 36–36A (Department of Mental Health records);

G. L. c. 123B, § 17 (Department of Developmental Services records);

G. L. c. 127, § 29 (Department of Correction records);

G. L. c. 127, § 130 (parole board); and

G. L. c. 148, § 32 (fire insurance).

There are also numerous regulations (Code Mass. Regs.) which contain confidentiality requirements.

(6) Applicability of Federal Law. The Constitution of the United States or an act of Congress may govern the applicability of a privilege in Massachusetts State courts. See, e.g., 23 U.S.C. § 409 (protecting from disclosure in discovery or at trial and in Federal or State court proceedings information “compiled or collected” in connection with certain Federal highway safety programs); Pierce County v. Guillen, 537 U.S. 129, 146–148 (2003) (23 U.S.C. § 409 is a valid exercise of congressional power under the commerce clause and is binding on the States). Accord Boyd v. National R.R. Passenger Corp., 62 Mass. App. Ct. 783, 795–797, 821 N.E.2d 95, 105–106 (2005). Access to records also may be restricted by Federal law. See, e.g., Commonwealth v. Nathaniel N., 54 Mass. App. Ct. 200, 206, 764 N.E.2d 883, 888 (2002); Health Insurance Portability and Accountability Act (of 1996) (HIPAA), Pub. L. No. 104-‌191 (codified as amended at 42 U.S.C. § 1171 et seq.).

(g) Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases. Whenever a party in a criminal case seeks production of any records (privileged or nonprivileged) from nonparties prior to trial, Mass. R. Crim. P. 17(a)(2) must be satisfied. Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72, 76 (2004). See also Commonwealth v. Odgren, 455 Mass. 171, 187, 915 N.E.2d 215, 227 (2009). When Mass. R. Crim. P. 17(a)(2) has been satisfied and a nonparty has produced records to the court, the protocol set forth in Commonwealth v. Dwyer, 448 Mass. 122, 139–147, 859 N.E.2d 400, 414–420 (2006), governs review or disclosure of presumptively privileged records by defense counsel. To reference the forms promulgated by the Supreme Judicial Court, see http://www.mass.gov/‌courts/‌formsandguidelines/dwyerforms.html.

Cross-Reference: Section 1108, Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol).

(h) Nonevidentiary Privileges. There are certain so-called privileges which concern nonevidentiary areas. Basically, they are defenses to suit and include the following:

(1) Immunity from Liability (Litigation Privilege). Written or oral com­munications made by a party, witness, or attorney prior to, in the institution of, or during and as a part of a judicial proceeding involving said party, witness, or attorney are absolutely privileged even if uttered maliciously or in bad faith. See Correllas v. Viveiros, 410 Mass. 314, 319–321, 572 N.E.2d 7, 10–12 (1991); Sriberg v. Raymond, 370 Mass. 105, 108, 345 N.E.2d 882, 883 (1976); Mezullo v. Maletz, 331 Mass. 233, 236, 118 N.E.2d 356, 358 (1954). The absolute privilege applies to statements made in a letter by an employee to a former employer explaining that the reason for his or her resignation was sexual harassment and indicating an intention to pursue the matter with the Equal Em­ploy­ment Opportunity Commission (EEOC) and the Massachusetts Com­mission Against Discrimination (MCAD). Further, the absolute privilege extends to similar statements made in a subsequent filing with the EEOC. Visnick v. Caulfield, 73 Mass. App. Ct. 809, 812–813, 901 N.E.2d 1261, 1263–1264 (2009). The absolute privilege is based on the view that “it is more important that witnesses be free from the fear of civil liability for what they say than that a person who has been defamed by their testimony have a remedy.” Aborn v. Lipson, 357 Mass. 71, 72, 256 N.E.2d 442, 443 (1970). Accord Hoar v. Wood, 44 Mass. 193, 196–198 (1841) (same point with reference to statements by an attorney at trial). Contrast Kobrin v. Gastfriend, 443 Mass. 327, 342 n.17, 821 N.E.2d 60, 71 n.17 (2005) (Anti-SLAPP statute, G. L. c. 231, § 59H, supercedes the common-‌law immunity against allegedly defamatory statements made by an expert witness called by the board of registration in medicine to testify against a medical doctor in a disciplinary proceeding).

A privilege attaches “[w]here a communication to a prospective defendant relates to a proceeding which is contemplated in good faith and which is under serious consideration.” Sriberg v. Raymond, 370 Mass. at 109, 345 N.E.2d at 884.

“[A]n attorney’s statements are privileged where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in con­ferences and other communications preliminary to litigation. The litigation privilege recognized in our cases, however, would not appear to encompass the defendant attorneys’ con­duct in counselling and assisting their clients in business matters generally.” (Citations, quotation, and footnote omitted.)

Kurker v. Hill, 44 Mass. App. Ct. 184, 192, 689 N.E.2d 833, 838–839 (1998).

(2) Legislative Deliberation Privilege. Conduct or speech by a member of the Legislature in the course of exercising the member’s duties as a legislator is absolutely privileged and cannot be the basis of any criminal or civil prosecution. See Article 21 of the Massachusetts Declaration of Rights (“[t]he freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever”). This provision also establishes a privilege applicable to “the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office.” Coffin v. Coffin, 4 Mass. 1, 27 (1808).

(3) Fair Report Privilege. The fair report privilege is a common-law rule that protects from liability the republisher of a newsworthy account of one person’s defamation of another so long as it is fair and accurate. See Howell v. Enterprise Publ. Co., LLC, 455 Mass. 641, 650–651, 920 N.E.2d 1, 13 (2010), and cases cited.

“The privilege recognizes that (1) the public has a right to know of official government actions that affect the public interest, (2) the only practical way many citizens can learn of these actions is through a report by the news media, and (3) the only way news outlets would be willing to make such a report is if they are free from liability, provided that their report was fair and accurate.”

ELM Med. Lab, Inc. v. RKO Gen., Inc., 403 Mass. 779, 782, 532 N.E.2d 675, 678 (1989).

“The privilege is not absolute” and “may be ‘be vitiated by misconduct on the newspapers’ part, but that misconduct must amount to more than negligent, or even knowing, republication of an inaccurate official statement. To defeat the privilege, a plaintiff must either show that the publisher does not give a fair and accurate report of the official statement [or action], or malice.’” Howell v. Enterprise Publ. Co., LLC, 455 Mass. at 651 n.8, 920 N.E.2d at 13 n.8, quoting Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003). Newspapers are on “solid ground” when they report on “formal (as opposed to informal) governmental (as opposed to private) proceedings and actions.” Howell v. Enterprise Publ. Co., LLC, 455 Mass. at 655–656, 920 N.E.2d at 17. In such cases, “the privilege extends to reports of official actions based on information provided by nonofficial third-party sources.” Id. at 658, 920 N.E.2d at 18.

“If, however, the source is an unofficial or anonymous one, a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into unprivileged territory” (footnote omitted).

Id. at 659, 920 N.E.2d at 19. “Whether a report was fair and accurate is a matter of law to be determined by a judge unless there is a basis for divergent views” (citation omitted). Id. at 661, 920 N.E.2d at 21.