|Updates:||As amended April 24, 2015, effective October 1, 2015|
Uniform Rules on Impoundment Procedure
Trial Court Rules Uniform Rules on Impoundment Procedure Rule 1: Applicability and definitions
Trial Court Law Libraries
The Uniform Rules on Impoundment Procedure (URIP) govern impoundment of otherwise public case records that are filed in civil and criminal proceedings in each Department of the Trial Court. Case records are presumed to be open to the public, unless they are impounded or sealed as a matter of law, or impounded by a court order. These rules are inapplicable to case records that are required to be impounded by statute, court rule, standing order, or case law, except as otherwise provided in Rules 9, 11, and 13. These rules shall not be construed to deprive a person of any rights or remedies regarding impoundment that are otherwise available under law.
As used herein:
(1) “Case” shall include any matter that has been entered in any Department of the Trial Court. Each case shall always have a case caption and an assigned case number visible on the court’s docket and index, even if a pseudonym must be used for a party whose identity is impounded.
(2) “Case Caption” shall mean the official title of the case. For example, Commonwealth v. Smith, Jones v. Jones, or Impounded Plaintiff v. Jones.
(3) “Case record” shall mean all or any portion of court papers, documents, exhibits, orders, and other records, including an audio recording or official transcript of a proceeding, that are made, entered, or filed and maintained by the clerk in connection with a transaction of court business.
(4) “Case law” shall mean appellate decisions that are binding precedent for a Massachusetts court.
(5) “Clerk” shall mean Clerk, Clerk-Magistrate, Register of Probate, Recorder of the Land Court, their assistants, and designated court personnel.
(6) “Court” shall mean a judge or justice.
(7) “Docket” shall mean the paper or electronic list of case information maintained by the clerk that contains the case caption, case number, and a chronological entry identifying the date and title of each paper, document, exhibit, order, or judgment filed in a case, and the scheduling and occurrence of events in the case.
(8) “Final Disposition” shall mean, in a civil or criminal proceeding, when (i) a final judgment, sentence, decree, or order of dismissal has entered as to all claims, counts, and parties, (ii) any timely post-judgment motions have been disposed, and (iii) any appeal has been concluded and the rescript entered.
(9) “Impoundment” shall mean the act of keeping some or all of the case record separate and unavailable for public inspection. Impounded records are not accessible to anyone other than the court, clerk, authorized court personnel, attorneys of record, and the parties to the case, unless otherwise ordered. Any order of impoundment shall not restrict the clerk, as keeper of the records, from accessing information sufficient to file the impounded documents and carry out the clerk's duties required under URIP Rule 9. “Impounded” information includes material that a statute, court rule, standing order, case law, or court order designates must be withheld as “impounded,” “withheld from public inspection,” “not available for public inspection,” “segregated,” or “confidential,” though these terms are not exhaustive. “Sealed” records are distinct from “impounded” records, in that sealed records are available to the court only, unless otherwise ordered.
(10) “Index” or “indices” shall mean the clerk's list of cases, whether maintained alphabetically or chronologically.
(11) “Interested nonparty” shall mean a person who is not or was not a party to the underlying matter in which an impoundment issue has arisen, but who nevertheless expresses to the court (through a motion, an appearance limited to impoundment, filing, or otherwise) an interest in the impoundment proceeding, or who has been named by the court as a person who shall receive notice.
(12) “Party” shall mean a person who is a litigant in the civil or criminal matter in which the impoundment proceeding has arisen.
(13) “Person” shall mean any natural person or any business, legal, or government entity.
(14) “Public record” or “public case record” shall mean a record that is accessible to any and all persons.
(c) Impoundment and discovery
(1) Where impoundment is sought in connection with discovery, these rules shall be applied in a manner consistent with any applicable provisions of Rule 26(c) of the Massachusetts Rules of Civil Procedure, Rule 26(c) of the Massachusetts Rules of Domestic Relations Procedure, or Rule 14(a)(6) of the Massachusetts Rules of Criminal Procedure.
(2) In civil and criminal proceedings, material received by the clerk directly from a third person or nonparty in response to a subpoena, summons, or court order for discovery purposes is not available for public inspection until either a party files the material as an attachment to a pleading or motion, introduces the material as evidence, or the court so orders. The clerk shall make a notation on the docket indicating that impounded materials were filed in response to court order or discovery request.
Scope and the Presumption of Public Access to Case Records
Massachusetts has long recognized a common-law right of access to case records. New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 82-83 (2012), citing Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004). Case records are presumptively public documents, unless required by statute, court rule, standing order, or case law to be withheld from public inspection. Id. at 83, citing Republican Co., 442 Mass. at 222-223. See also Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 631-632, 637 (1988). The URIP prescribe the procedures by which the court may impound or refuse to impound material, or may modify or terminate an existing impoundment order. The URIP are applicable in all civil and criminal proceedings to requests regarding the impoundment of information or documents that otherwise constitute a public case record. URIP Rule 1 permits the court to impound some or all of the papers filed in a case, including documents, exhibits, a party's name in a docket or index, or portions thereof. The URIP do not apply to information that a statute, court rule, standing order, or case law designates as impounded, except where relief is sought pursuant to Rule 11, or where a filer is required to file a notice of the filing of impounded information pursuant to Rule 13.
“[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be 'strictly construed in favor of the general principle of publicity.'” Republican Co. v. Appeals Court, 442 Mass. 218, 223 (2004), quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949). “Impounded” information is open for inspection by the court, attorneys of record, and the parties, but not the public. By contrast, “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.” See Pixley v. Commonwealth, 453 Mass. 827, 836 n.12 (2009).
The 2015 amendments to the URIP deleted the language in URIP Rule 1 that permitted a court to impound the existence of a case from the court's docket or index. Under the amended URIP, while the identity of a party's name may be impounded, the existence of a case may not be impounded. At a minimum, each case shall appear in the court's docket and index, using the parties' names if not impounded, or, if impounded, some pseudonym or a generic case title to protect the parties' identities. For example, in a case where both parties' identities are impounded, the case may appear in the docket or index using an anonymous case caption, such as Impounded Plaintiff v. Impounded Defendant.
Discovery and Other Materials From a Non-Party.
In civil and criminal proceedings, some materials are submitted to the clerk directly from a third person or non-party in response to a subpoena, summons, or court order. These materials can include discovery materials and potential exhibits that are not filed as an attachment to a pleading or motion, or are not yet introduced in evidence. These records are not available for public inspection until a party introduces them into the record. For instance, in criminal cases, parties seeking discovery from nonparties must first satisfy Mass. R. Crim. P. 17(a)(2). Once Rule 17(a)(2) is satisfied and the nonparty produces records, "[t]he clerk shall maintain the records in a location separate from the court file . . . . [the records] shall not be made available for public inspection unless and until any record is filed in connection with a proceeding in the case or introduced as evidence at that time." Commonwealth v. Dwyer, 448 Mass. 122, 148-149 (2006). See Commonwealth v. Mitchell, 444 Mass. 786, 800 (2005) ("no inspection of summonsed documents, by either side, shall be allowed until after a full consideration of any privileges, privacy concerns, or other legitimate interests brought to the judge's attention in a timely fashion"). See also Mass. Guide Evid. Article V, Introductory Note paragraph (g), Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases, and Section 1108, Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol) (2015).
Likewise, courts have generally treated pre-trial discovery documents in civil cases as being unavailable to the public. See H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 330 (1987) ("The judge noted that the materials at issue consisted primarily of discovery information, which is not a traditionally public source of information"). In Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12 (1st Cir. 1986), the First Circuit Court of Appeals explained "there is no right of public access to documents considered in civil discovery motions . . . . [because] discovery proceedings are fundamentally different from proceedings to which the courts have recognized a public right of access." Moreover, "the courts of appeals have uniformly held that the public has no common law or constitutional right of access to materials that are gained through civil discovery but neither introduced as evidence at trial nor submitted to the court as documentation in support of motions or trial papers." United States v. Kravetz, 706 F.3d 47, 55 (1st Cir. 2013).
These practices are acknowledged in the District Court Department's "A Guide to Public Access, Sealing & Expungement of District Court Records," (revised September 2013), which provides that "[r]ecords deposited with the clerk-magistrate as potential exhibits but not yet introduced in evidence or filed as an attachment to a pleading or motion" are not publicly available. See "A Guide to Public Access, Sealing & Expungement of District Court Records," 16 & 22 (District Court Dept. rev. Sept. 2013). Such records "include business records produced pursuant to G. L. c. 233, § 79J, hospital records produced pursuant to G. L. c. 233, § 79, and records produced pursuant to the protocol of Commonwealth v. Dwyer, 448 Mass. 122, 148-149 (2006)." Id. at 16 n.50.
Case Records in Criminal Proceedings
“In criminal cases [the Supreme Judicial Court has] used a two-part test to determine whether there is a constitutional right of access to judicial records: the proceedings must have 'an historic tradition of openness,' and the public's access must play a significant positive role in the functioning of the particular process in question.'” Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 606 (2000) (quoting Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 635 (1998), which was quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986). In such cases “the public's right to access is balanced not simply against an interest in privacy, but against a defendant's right to a fair trial, which potentially may be at risk from prejudicial pretrial publicity.” In re Globe Newspaper Co., Inc., 461 Mass. 113, 121 (2011) (citations omitted). Pretrial publicity in criminal trials is common, but the existence of such publicity does not, by itself, require impoundment of a case or proceeding. See, e.g., Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 609, 611-612 (2000); In re Globe Newspaper Co., Inc., 461 Mass. 113, 121 (2011). See also New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 91 (2012) (noting that a prospective defendant's right to a fair trial may be in conflict with the public interest in an ongoing criminal investigation). The likelihood of pretrial publicity arising from the release of court documents “does not . . . necessarily trump” the presumption of public access. Newspapers of New England, Inc., 403 Mass. at 632-633, quoting Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979)). Investigative secrecy and safety of a person or the public are also concerns. See, e.g., New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 86, 92, 93 (2012); Commonwealth v. Silva, 448 Mass. 701, 708 (2007).
When an application for a warrant is filed in a court pursuant to G. L. c. 276, § 1, et seq., the court does not usually assign a case docket number or case caption to the application or warrant that issues. This information is assigned only after the search warrant is returned to a designated court or division. Thus, if an impoundment order issues prior to the return of the search warrant, it does not have a designated case docket number or case caption. In addition, current court practice does not require maintenance of a formal docket report on warrants that have been returned to a designated court.
Availability of Other Rights or Remedies, Including Discovery
The final sentence of Rule 1(a) states, “[t]hese rules shall not be construed to deprive a person of any rights or remedies regarding impoundment that are otherwise available under law.” This provision makes clear that a person may utilize other legal remedies concerning impoundment that may be available under the law. For example, a person has a right to bring an independent civil action seeking relief from impoundment in the court that issued the impoundment order, and Rule 6(b) embodies this right. See In re Globe Newspaper Co., Inc., 461 Mass. 113, 125 n.5 (2011); Republican Co. v. Appeals Court, 442 Mass. 218, 227 n.14 (2004); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 551 (1977). Similarly, the URIP do not supersede the more specific rules of procedure that concern the issuance of protective orders to ensure confidentiality of discovery. Nonetheless, the URIP are to be construed in a manner consistent with the discovery rules whenever a request for impoundment of discovery materials is made. Thus, for example, where a protective order has entered under Rule 26(c) of either the Massachusetts Rules of Civil Procedure Rule or Rules of Domestic Relations Procedure, or Rule 14(a)(6) of the Massachusetts Rules of Criminal Procedure, application of the impoundment rules would permit a nonparty (e.g., a media representative) to seek access to the materials by filing a motion for relief from impoundment as an “interested nonparty.” Similarly, in criminal proceedings the court may enter a protective order addressing the dissemination of a search warrant application and return. See Mass. R. Crim. P. 14(a)(6). Further, after a protective order has entered, any future filings containing that information would need to comply with URIP Rule 13.
Pursuant to S.J.C. Rule 1:15, § 1, the URIP govern requests for impoundment in the Supreme Judicial Court and the Appeals Court.
History of the Enactment and Amendments
Rules 1 through 11 of the URIP became effective on September 1, 1986. URIP Rule 12 was added on October 27, 1987, and became effective on January 1, 1988. In 2015, the URIP were substantially amended to conform to case law and to improve the administration of filing procedures. Subsections and subheadings were added to the rules to improve comprehension. A handbook was also developed to provide legal and administrative guidance.
Most significantly, URIP Rule 1 was amended from being restricted to civil proceedings to now include criminal proceedings. This amendment conformed the URIP to existing practice and to instruction from the Supreme Judicial Court that requests for impoundment in criminal proceedings should follow the same procedures as requests in civil proceedings. See In re Globe Newspaper Co., Inc., 461 Mass. 113, 121 (2011) (noting that good cause standard applies and a “comparable balancing” must take place in criminal cases as well as in civil cases); Commonwealth v. Silva, 448 Mass 701, 705 (2007) (“In future cases, appellate review of an impoundment order in an ongoing criminal proceeding should conform to the Uniform Rules on Impoundment Procedure, and should be sought in the first instance before a single justice of the Appeals Court”); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 606-609 (2000) (discussing importance of balancing the public's right to inspect documents against a criminal defendant's right to a fair trial); Republican Co. v. Appeals Court, 442 Mass. 218, 223, 223 n.8 (2004) (recognizing that a “good cause” standard similar to motions for impoundment in civil cases also applies in criminal cases).
The 2015 amendments also included some technical amendments. The reference to Rule 26(c) of the District/Municipal Court Rules of Civil Procedure was deleted because the rules were repealed in 1996. In addition, the reference to Rule 14(a)(6) of the Massachusetts Rules of Criminal Proceedings was added because the URIP now explicitly apply to criminal proceedings.
|Updates:||As amended April 24, 2015, effective October 1, 2015|