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
(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
(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
(d) Confidentiality
Versus
Privilege. There is a distinction between a duty of
confidentiality and an evidentiary privilege.
“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
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
“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
Pixley v.
Commonwealth, 453
(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
(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
(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
(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
(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
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,
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
“[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,
(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
(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
“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
“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).