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District Court Standards of Judicial Practice: The Complaint Procedure: Complaint records and public access

Standards 5:00 through 5:05 of the District Court Standards of Judicial Practice: The Complaint Procedure.
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5:00 General rule regarding public access

Based on common law and constitutional grounds, criminal complaints and most other court records are presumptively open to the public even though the Commonwealth’s general public access statutes do not apply to court records.

Commentary

For a comprehensive view of this issue, see the current version of A Guide to Public Access, Sealing & Expungement of District Court Records published by the Administrative Office of the District Court and the Guidelines on the Public’s Right of Access to Judicial Proceedings and Records (March, 2000) developed by the Supreme Judicial Court’s Judiciary/Media Steering Committee.

5:01 Applications for complaints: record requirements

A standard application for complaint form and statement of facts must be filed for each complaint sought. 

The magistrate making the probable cause determination must insure there is a record of the facts presented. The record may consist of any combination of written statements and written notes or electronic recordings of oral testimony. Such records should be attached to the application form. 

In the case of an electronic recording, the magistrate should note on the application form the necessary retrieval information for the recording. (For a digital recording, this is the date and the start and end times. For a tape recording, this is the tape or cassette number and the start and end index numbers.) 

If a complaint is authorized, the application form and any attachments must be filed in the criminal case file. 

If a complaint is denied, the application form and any attachments must be kept separate from any criminal records and destroyed after one year. 

If a show cause hearing was electronically recorded, the recording must be preserved for one year. When an electronic recording is the only record of facts establishing probable cause for a criminal complaint, the recording should be retained for 2½ years, unless the case is disposed earlier.

Commentary

General Laws c. 218, § 35 directs the clerk-magistrate to file a denied application for complaint separately from any criminal complaints and to “destroy such application one year after the date such application was filed, unless a justice of such court or the chief justice of the district courts shall for good cause order that such application be retained on file for a further period of time.” (The statute provides that this does not apply to applications for complaint for multiple unpaid parking tickets under G.L. c. 90, § 20C.) 

District Court Special Rule 211(A)(4) requires that electronic recordings of a magistrate’s show cause hearing be preserved for one year, and the recordings of a judge’s show cause hearing for 2½ years. If the recording of a magistrate’s hearing provides the only record of the facts establishing probable cause, as required by Mass. R. Crim. P. 3(g), it should be preserved for 2½ years, unless the case is disposed earlier, since it may be relevant in determining a motion to dismiss the complaint during the ensuing criminal case. See also Standard 3:16.

5:02 Applications for complaints: public access

A criminal proceeding does not commence in the District Court until a complaint has been authorized. An application for complaint is merely a preliminary procedure to determine if criminal proceedings should commence. 

If an application for complaint has been filed but no determination has yet been made, it is merely an accusation as to which no judicial officer has yet found probable cause. Public dissemination of inaccurate information in such an application could unfairly stain the reputation of the accused. Pending applications, therefore, are presumptively unavailable to the public unless a magistrate or judge concludes that the legitimate interest of the public outweighs any privacy interests of the accused. 

Denied applications, and any electronic record of the show cause hearing, are also unavailable to the public unless a magistrate or judge makes a determination that the legitimate interest of the public outweighs any privacy interests of the accused. 

When a request for such access is made, the appropriate considerations are similar to those in determining whether to permit the public to attend a show cause hearing. See Standard 3:15. 

When a complaint has been denied, because of the accused’s privacy interests, the complainant should be permitted to obtain a copy of any electronic record of the show cause hearing only for a legitimate purpose, including related civil litigation. 

After a complaint is issued, the application, together with any record of the facts presented to the magistrate, including any recordings, becomes part of the criminal case file and is publicly available unless impounded by a judge. The accused has the right to view and obtain a copy of any application and supporting documents filed against him or her and a recording of any testimony recorded at a show cause hearing.

Commentary

District Court criminal proceedings do not commence until a complaint is authorized. See Mass. R. Crim. P. 3(a). 

There is no First Amendment or common law right of access to proceedings to determine whether to authorize or deny a criminal complaint, and historically such proceedings have not been open to the public. Eagle-Tribune Pub. Co. v. Clerk-Magistrate of Lawrence Div. of Dist. Court Dep’t, 448 Mass. 647, 863 N.E.2d 517 (2007). Therefore the general requirements regarding public access to criminal court records and proceedings do not apply to applications for complaint. 

The withholding of pending and denied applications is for the benefit of the accused. The accused is entitled to access to such records, and if the accused wishes to permit public access to such records, normally it should be allowed. 

If an application is made for a complaint after an arrest and the magistrate declines to authorize a complaint for lack of probable cause, public access to the application should be handled in the same manner as other denied applications. See Standard 2:04.

5:03 Criminal case files: record requirements

A criminal case file consists of the docket sheet, the complaint signed by the named complainant, the application for complaint and attached papers, appearances of counsel, motions and other papers filed by the parties, decisions or orders by a judge, and often copies of forms required by statute or court rule. It may also include documentary exhibits introduced into evidence if they were retained in the court’s custody and transcripts or appellate decisions if the case was appealed. 

By statute, the clerk-magistrate has the care and custody of the court’s records and must keep a record of all its proceedings. G.L. c. 218, § 12. Criminal case files should be complete and stored in a systematic manner that ensures their reliability and integrity and also allows for their timely and efficient retrieval both for the court’s use and to respond to requests for public access. 

Clerk-magistrates may, as appropriate, remind police departments and other parties that submit reports to the court that by law such reports, once filed, are usually accessible to the public. Since the clerk-magistrate has no authority to remove or redact information that by law is publicly accessible in court files, such parties may be encouraged to redact superfluous sensitive or highly personal information from such reports before they are filed. 

Clerk’s office personnel must be certain that any documents or information that has been impounded by a judge or that is categorically unavailable to the public by statute or court rule is either filed separately or removed from the case file prior to any public examination of the case file.

Commentary 

When permissible under the rules that govern public access to court records, Clerk’s office personnel should attempt to protect the privacy interests of parties involved in criminal cases. See Standard 5:04. Of particular concern should be maintaining privacy with respect to the names of sexual assault victims (see G.L. c. 265, § 24C), mental health, medical and criminal history records, and personal information that could be utilized for identity theft (e.g. social security numbers). 

The criminal case file should include all public documents about the case including reasons for bail forms, bail recognizances, detention orders, pretrial conference reports, certificates of discovery compliance, tender of plea forms, probation orders, findings on probation violations, and any documentary exhibits retained in court custody. The file should identify where any other case-related materials are located. 

District Court Special Rule 211 requires that the electronic recordings of most criminal matters presided over by a judge must be retained for at least 2½ years. Any electronic recording of facts upon which a magistrate relied in authorizing a criminal complaint should also be retained for at least 2½ years, since such recordings may be relevant in determining a motion to dismiss the complaint during the ensuing criminal case. 

Supreme Judicial Court Rule 1:11 governs the disposal of old court papers and permits destruction of most criminal records (other than docket sheets) five years after the conclusion of the case.

5:04 Criminal case files: public access

Once a complaint is issued, the application and any supporting information, such as police reports or recordings of oral testimony, are part of the criminal case file. With some exceptions, the contents of criminal case files, whether the case is pending or closed, are available for public inspection. 

The magistrate’s duty to facilitate such access is balanced by a duty to protect the security of the records under his or her control. The right of public access is subject to reasonable time and place limits. 

Among the items in criminal case files that are not available for public inspection are the following: 

Commentary

Commentary The Code of Professional Responsibility for Clerks of Courts requires that each clerkmagistrate shall “facilitate public access to court records that, by law, are available to the public and shall take appropriate steps to safeguard the security and confidentiality to court records that are not open to the public.” S.J.C. Rule 3:12, Canon 3(A)(6). 

The names and addresses of alleged victims are generally publicly accessible when included in a publicly-accessible filing. However, G.L. c. 265, § 24C provides that the names of alleged victims of six specified sexual offenses “shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted.” Note that the remainder of any police report or other statement of fact relied upon by the magistrate to determine probable cause is a public record, as the statute authorizes withholding only the name of the alleged victim. 

Since the purpose of the statute is to protect the identity of the victim of a sexual assault, it is desirable that criminal case files do not directly or indirectly disclose that identity. Police officers and other complainants should be encouraged to redact from their statement of facts any identifying information about the victim (e.g., the victim’s address or the parent’s address in the case of a minor victim). In appropriate situations, a magistrate may inform the complainant that he or she may ask a judge to impound non-essential personal or identifying information that has not been redacted from such filings, pursuant to Trial Court Rule VIII, the Uniform Rules on Impoundment Procedure. 

It is preferable to rely only upon written reports in satisfying Mass. R. Crim. P. 3(g) in cases involving sexual offenses, since it may be nearly impossible to redact an alleged victim’s name from an electronic recording of oral testimony.

5:05 Impoundment of criminal complaints

Consistent with controlling law, a judge has authority to impound or redact court records which contain sensitive information. An impoundment order may be granted with notice, or ex parte in a clearly meritorious case. A request for impoundment may be made prior to the material being filed. 

Commentary 

For the procedure on impoundment, see Trial Court Rule VIII, Uniform Rules on Impoundment Procedure. See also Republican Co. v. Appeals Court, 442 Mass. at 225 n.11 & 227 n.14, 812 N.E.2d at 893 n.11 & 895 n.14 (2002) (Uniform Rules are to be followed “as closely as possible” in criminal as well as civil cases); Globe Newspaper Co. v. Commonwealth, 407 Mass. 879, 556 N.E.2d 356 (1990); Gere v. Frey, 400 Mass. 326, 509 N.E.2d 271 (1987); Ottaway Newspaper Co. v. Appeals Court, 372 Mass. 539, 362 N.E.2d 1189 (1977). 

“[There is a right] for victims and witnesses, to be informed [by the District Attorney’s office] of the right to request confidentiality in the criminal justice system. Upon the court’s approval of such request, no law enforcement agency, prosecutor, defense counsel, or parole, probation or corrections official may disclose or state in open court, except among themselves, the residential address, telephone number, or place of employment or school of the victim, a victim’s family member, or a witness, except as otherwise ordered by the court. The court may enter such other orders or conditions to maintain limited disclosure of the information as it deems appropriate to protect the privacy and safety of victims, victims’ family members and witnesses.”

G.L. c. 258B, § 3(h). 

The Clerk’s office does not have the right to withhold information in a criminal case file from public access unless it is unavailable to the public by statute or court rule or has been impounded by a judge. If a magistrate is concerned that sensitive information is about to be filed in a case, the magistrate should first determine whether there is a need for the information to be in the file. If not, the magistrate may suggest to the filing party that such information be redacted prior to filing. If it appears that the information is needed but should not be publicly available, the magistrate might suggest that the filing party speak with the District Attorney’s office about seeking an impoundment order.

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