Commonwealth v. Boe

Mar 25, 2010

SJC-10443

Versions:

Spina, J.

In this case we are asked to decide whether a judge has the authority to order the Commissioner of Probation (commissioner) to expunge a defendant’s record where the criminal complaint was dismissed because its issuance was premised on a mistake. We conclude that a judge does not have such authority, but the judge may order that such a defendant’s record be sealed pursuant to G. L. c. 276, § 100C. 2

1. Background. We set forth the relevant facts from the undisputed findings of the Boston Municipal Court judge. On July 12, 2006, an automobile accident occurred in the Roslindale section of Boston. The vehicles involved were a 2001 Chevrolet Impala, driven by Jennifer Cataloni, and a 2001 Honda Odyssey, driven by a short Hispanic male wearing a Red Sox baseball cap and a plaid shirt. When Cataloni requested the license and motor vehicle registration of the male driver, he told her that the car was not his, he threatened to return to the scene with a gun, and then he drove away without providing his name, address, or registration. Cataloni, who had recorded the registration plate number of the Honda, contacted the Boston police and reported the accident to Officer Patrick Flaherty. In addition, a passenger in Cataloni’s vehicle complained of a back injury and was taken to a hospital for medical treatment.

The police traced the registration plate information through the registry of motor vehicles and learned that the Honda driven by the unknown Hispanic male was registered to the defendant, Tina Boe. On July 15, 2006, Officer Lawrence Calderone mailed her a citation for violating G. L. c. 90, § 24(h)(2) (a½) (1), by leaving the scene of an accident after causing personal injury. Four days later, Officer Calderone applied for a criminal complaint in the West Roxbury Division of the Boston Municipal Court Department, and a hearing was scheduled before a clerk-magistrate on September 11, 2006, to determine whether probable cause existed to support the charge. Boe arrived on time for the hearing, but a court employee mistakenly directed her to an arraignment session. As instructed, she waited for her name to be called. After a long period of time had elapsed, she asked another employee about the status of her case and was informed that she was in the wrong location. Boe then was directed to the clerk’s office where she learned that, in her absencе, a criminal complaint had issued against her for violating G. L. c. 90, § 24(h)(2) (a½) (1). She was informed that she would receive a summons by mail for her next court date.

On September 26, 2006, Boe was arraigned and appointed an attorney. At a pretrial hearing on November 3, 2006, Boe and the Commonwealth filed a joint motion to dismiss the complaint and to expunge “all information regarding this case . . . from the criminal record of the Probation Department, Commissioner of Probation, and other appropriate agencies.” 3 The parties asserted that expungement was appropriate because the complaint should not have issued in the first instance where Officer Calderone erroneously assumed that Boe, as registered owner, was operating the Honda at the time of the accident when, in fact, the police report clearly described the operator of the Honda as male. A judge allowed the motion, dismissed the complaint, and issued an order directing the commissioner to expunge Boe’s criminal record.

On January 18, 2007, the commissioner filed a motion to reconsider and vacate the order to expunge Boe’s criminal offender record information on the grounds thаt the judge lacked statutory authority to issue such an order, and that Boe’s only remedy was the sealing of her record pursuant to G. L. c. 276, § 100C. 4 The judge denied the commissioner’s motion, concluding that because the criminal complaint had been issued erroneously based on misidentification of Boe as the perpetrator of the crime, expungement of her criminal record was “appropriate” and “just” relief. The judge stated that sealing Boe’s record pursuant to § 100C would be an “inadequate” remedy when balanced against the wrongful basis and misleading circumstances on which the complaint was issued, and that Boe should not have to live under a “cloud of prosecution” with a sealed record.

The commissioner then filed a notice of appeal. 5 A divided panel of the Appeals Court affirmed the judge’s order to expunge Boe’s criminal record. See Commonwealth v. Boe, 73 Mass. App. Ct. 647, 649-652 (2009). It concluded that the particular circumstances of this case caused it to fall outside the ambit of G. L. c. 276, § 100C, where the complaint against Boe never should have issued, thereby saddling her with an unwarranted criminal record that would be accessible to law enforcement authorities. See id. The dissent opined that the court could not affirm the order of expungement where G. L. c. 276, § 100C, рrescribes how the records of dismissed prosecutions, even those commenced without substantial basis or after an apparently slipshod investigation, shall be maintained. See id. at 652-656 (Grasso, J., dissenting). We granted the commissioner’s application for further appellate review. 6

2. Discussion. The commissioner argues that where a court has dismissed criminal charges against a defendant, the appropriate remedy is the sealing of the defendant’s probation records pursuant to G. L. c. 276, § 100C. As such, he continues, the judge here lacked the authority to order the commissioner to expunge Boe’s record. We agree. 7

We begin with an overview of the relevant statutory provisions. Pursuant to G. L. c. 276, § 100, information compiled by probation officers concerning persons on probation “shall not be regarded as public records and shall not be open for public inspection but shall be accessible to the justices and probation officers of the courts, to the police commissioner for the city of Boston, to all chiefs of police and city marshals, and to such departments of the state and local governments as the commissioner may determine.” On payment of a three-dollar fee for each search, “such records shall be accessible to such departments of the federal government and to such educational and charitable corporations and institutions as the commissioner may determine.” 8 Id.

In order further to restrict access to probation records, the Legislature has enacted a comprehensive scheme for sealing such records, which are maintained by the commissioner. See G. L. c. 276, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍§§ 100A, 100B, and 100C (sealing statutes). As applicable to the present case, G. L. c. 276, § 100C, states, in relevant part:

“In any criminal case wherein a nolle prosequi has been entered, or a dismissal has been entered by the court, . . . and it appears to the court that substantial justice would best be served, the court shall direct the clerk to seal the records of the proceedings in his files. The clerk shall forthwith notify the commissioner of probation and the probation officer of the courts in which the proceedings occurred or were initiated who shall likewise seal the records of the proceedings in their files.”

Such a sealed record shall not disqualify an individual from public employment with the Commonwealth or any political subdivision therеof. See id. Further, “[t]he commissioner, in response to inquiries by authorized persons other than any law enforcement agency or any court, shall in the case of a sealed record report that no record exists.” Id.

Putting aside for a moment the confluence of events that resulted in the issuance of a criminal complaint against Boe, Massachusetts appellate decisions have construed the unambiguous language of G. L. c. 276, § 100C, as conferring on a judge the authority, in appropriate circumstances, to order sealing, but not expungement, of the probation and court reсords of dismissed prosecutions. See Commonwealth v. Roe, 420 Mass. 1002 (1995) (where charges against defendant were dismissed for want of prosecution, court stated that defendant’s motion to expunge was properly denied because existence of sealing statute, G. L. c. 276, § 100C, provided remedy to protect confidentiality of criminal records); Commonwealth v. Balboni, 419 Mass. 42, 44, 46-47 (1994) (although Department of Probation’s motion to reconsider and vacate order allowing expungement of dismissed complaint deemed untimely, G. L. c. 276, § 100C, was controlling and provided for confidentiality of probation records by sealing, not expungement); Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 357-358 (1995) (where defendant sought to еxpunge record after criminal charge dismissed, judge erred in allowing expungement because judge was limited by statutory scheme described in G. L. c. 276, § 100C, to sealing defendant’s record). Cf. Commonwealth v. Doe, 420 Mass. 142, 143, 152-153 (1995) (where charges against defendant resolved by prosecution’s entry of nolle prosequi, judge properly denied defendant’s petition to seal record where defendant failed factually to substantiate case for sealing); Commonwealth v. Vickery, 381 Mass. 762, 763-764, 766-767, 771-772 (1980) (where defendant pleaded guilty to crime, was granted full pardon by Governor, and sought to have record of conviction sealed, defendant’s request did not come within provisions of G. L. c. 276, §§ 100A оr 100C, and defendant could not rely on court’s inherent or ancillary powers to bypass specific statutory language).

More recently, in Commonwealth v. Gavin G., 437 Mass. 470 (2002), we reiterated that, in light of the protections afforded court and probation records by way of the sealing statutes, a judge does not have the authority to order expungement of such records. In that case, a juvenile was arraigned on charges of being a disorderly person and participating in an affray, but the Commonwealth was unable to proceed when two witnesses failed to appear for trial, so the judge dismissed the cases without prejudice. See id. аt 471. The juvenile filed a motion to expunge his police and probation records, which a judge in the Juvenile Court allowed. See id. at 471-472. In reversing that portion of the expungement order directed to the commissioner, 9 we pointed out that the confidentiality of Juvenile Court proceedings, juvenile records maintained by the court, and juvenile records maintained by the Department of Probation was protected by a detailed statutory scheme, including the sealing provisions of G. L. c. 276, § 100B. See id. at 473-475. However, our decision in that case continued, “ [conspicuously absent from [the] entire legislative scheme govеrning court and probation records, whether for adults or juveniles, is any suggestion that the Legislature intended such records to be destroyed” (emphasis in original). 10 Id. at 482. Significantly, for our purposes here, the court recognized that:

“[T]he Legislature was not ignorant of the fact that some persons are wrongly accused of crime and wrongly brought before the courts on those charges. When addressing the precise predicament of a wrongfully accused adult unfairly acquiring a criminal record, the Legislature still opted for sealing, not destruction or expungement of records.' As to both juveniles and adults, the Legislature is apparently satisfied with provisions for confidentiality and sealing of records to address the precise problem posed by such wrongful or mistaken accusations of criminal conduct” (footnote omitted). 11

Id. at 482-483.

We recognize that in certain limited circumstances, expungement of a defendant’s criminal record has been permitted. How ever, those instances are distinguishable from the present case. In Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 642 (1978), concededly a case that did not involve probation records, a judge dismissed a complaint charging a juvenile with an act of delinquency when the Commonwealth informеd the judge that it could not proceed with the case because of the unavailability of the alleged victim. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The judge then ordered the police department of Boston to expunge from its records the fingerprints, photographs, and other records pertaining to the juvenile’s arrest, and to retrieve copies of such data sent to other' law enforcement agencies for destruction by the court. See id. at 641. Significantly, in reviewing the propriety of the expungement order, this court stated that “there are no statutes in the Commonwealth regulating the maintenance and dissemination оf juvenile arrest records” (emphasis added). 12 Id. at 660. Recognizing that there was a “grave potential for injury to a juvenile” from the existence and dissemination of such records, id., we opined that “the power to order expungement or its equivalent . . . may be exercised by the courts of the Commonwealth as a necessary adjunct to their exercise of judicial power.” 13 Id. at 661. Given the broad mandate of the Juvenile Court Department to act in furtherance of a child’s welfare, we concluded that, in the proper circumstances, a judge could order expungement of police records following the dismissal of delinquency proceedings. Id. at 641, 668-669. The basis for our conclusion that the court could exercise its inherent or ancillary powers in such circumstances was premised on legislative silence with respect to the maintenance of a juvenile’s police records and on the unique goals of the juvenile justice system. Those factors are not present here.

Similarly, in Commonwealth v. S.M.F., 40 Mass. App. Ct. 42, 43-45 (1996) (S.M.F.), the Appeals Court concluded that where the record-sealing statutes are not applicable, a trial court may invoke its inherent judicial power to order expungement of a defendant’s criminal record. In that casе, an impostor who likely had stolen S.M.F.’s identifying documents was arrested, falsely identified herself as S.M.F., and appeared before the court on criminal charges, continuing to pretend that she was S.M.F. See id. at 42-43. By the time the impostor’s deception was uncovered, S.M.F.’s name and personal data, the criminal complaints against her, and the disposition of those complaints had been entered in the records of the Department of Probation. See id. S.M.F. filed a motion to expunge all data and records under that name from the court, the Department of Probation, and the criminal history systems bоard, which was allowed. See id. at 43. On appeal, the Appeals Court pointed out that G. L. c. 276, § 100C, “deals with the confidentiality of records of persons against whom proceedings were begun by a deliberate act of prosecution against the named person.” Id. at 44. In the unique circumstances of S.M.F., where the deliberate act of prosecution was not against S.M.F., the court concluded that G. L. c. 276, § 100C, was inapplicable, and, therefore, the trial court could invoke its inherent power to expunge the criminal records under the name of S.M.F. See id. at 44-45. Expungement was an appropriate remedy because thе facts of the case did not place it within the categories of dis positions contemplated by the sealing statutes — criminal proceedings were never initiated against the “real” S.M.F. See Commonwealth v. S.M.F., supra at 45. Further, if criminal records were preserved, they would be wholly false and misleading. See id. at 46. That is not the situation here, where proceedings were begun by an application for a criminal complaint against Boe, not an impostor attempting to perpetrate a fraud on the court, and where the eventual dismissal of such complaint brought the matter squarely within the purview of § 100C. 14

Turning now to the сonfluence of events that resulted in the issuance of a criminal complaint against Boe, we acknowledge that the circumstances giving rise to the criminal proceedings were not of her own making. The error by the police in misidentifying Boe as the operator of the vehicle involved in the accident was compounded by the court’s error in misdirecting Boe for her September 11, 2006, show cause hearing, resulting in her absence from the proceeding and the issuance of a criminal complaint against her for violating G. L. c. 90, § 24(h)(2) (a½) (1). Nonetheless, where the Legislature has clearly presсribed the remedy for limiting access to probation records when a criminal case has been dismissed, it is not the province of this court to decide that a different remedy would be more appropriate. See Commonwealth v. Gavin G., supra at 482-483.

“It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms.” James J. Welch & Co. v. Deputy Comm’r of Capital Planning & Operations, 387 Mass. 662, 666 (1982), quoting Caminetti v. United States, 242 U.S. 470, 485 (1917). It is not proper for a court, under the guise of correcting a perceived inadequacy or injustice in a statutory scheme, to “read into [a] statute a provision which the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Legislаture did not see fit to put there, whether the omission came from inadvertence or of set purpose.” General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999), quoting King v. Viscoloid Co., 219 Mass. 420, 425 (1914). See Commonwealth v. Gavin G., supra at 476 (“The juvenile cannot, merely by pointing to ostensible holes or inadequacies in the legislative scheme protecting his records, pretend that the Legislature has not provided the protections that it deems appropriate and sufficient”). If the Legislature had wanted to include expungement as a remedy in those instances where a court dismisses a criminal complaint against a defendant, then it easily .could have done so. See, e.g., G. L. c. 22E, § 15 (permitting expungement of records collected in State DNA database where conviction reversed and case dismissed); G. L. c. 258D, § 7 (permitting expungement of records pertaining to claimant’s erroneous felony conviction). The Legislature has chosen not to provide for such a remedy.

We recognize that a court can exercise its inherent power to “correct” its own records. See Bolduc v. Commissioner of Correction, 355 Mass. 765, 767 (1969) (court had plenary power to order that mittimus be corrected so as to conform with sentence actually imposed); Webb v. Cohen, 280 Mass. 292, 293 (1932) (“There is an inherent and necessary power in a court of justice acting on the motion of an interested party ... or on its own motion to correct errors and remedy omissions in its records in order that they shall speak the truth”). Here, however, there is no evidence that Boe’s probation record is inaccurate or false such that expungement would be permissible under the court’s inherent authority to “correct” the record. Boe was charged with a particular offense on a particular date, a show cause hearing was held, a complaint issued, and the matter ultimately was dismissed. That Boe should not have been charged with a crime in the first place does not render the information in the record inaccurate or misleading, and, in such circumstances, the Legislature has concluded that the appropriate remedy is the sealing of her record. 15 See Commonwealth v. Gavin G., supra at 482-483 & n.13 (whether proceedings chronicled in probation records should have occurred does not change fact that they did occur, and contention that charges should not have been filed in first instance does not make records themselves “inaccurate”).

3. Conclusion. The portion of the expungement order that is directed to the commissioner is reversed. This case is remanded to the Boston Municipal Court so that the judge may entertain a motion to seal Boe’s record in conformity with G. L. c. 276, § 100C.

So ordered.

Notes

There is a significant difference betwеen expunging a criminal record and sealing it. When a record is expunged, all traces of it vanish, and no indication is left behind that information has been removed. See Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 648 (1978). In contrast, “[wjhen records are sealed under G. L. c. 276, § 100C, they do not disappear; they continue to exist but become unavailable to the public.” Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 356 (1995).

Because the charge against Boe arose as a result of a citation and summons to appear in court, she was not arrested. Consequently, her expungement motion did not include a request to expunge arrest or other police records such as photographs, fingerprints, and the like.

Following entry of the expungement order, the commissioner had thirty days to file a motion to reconsider and vacate. See Commonwealth v. Balboni, 419 Mass. 42, 43-44 (1994) (motion to reconsider and vacate filed by Department of Probation more than two years after entry of expungement order deemed untimely and, therefore, not considered). The motion here was filed approximately seventy-four days after entry of the expungement order. Nonetheless, the judge stated that where Boe was not prejudiced by the delay, “[t]he goals of due process and fairness to all parties are advanсed by a waiver of the time restriction.” In her brief before this court, Boe has not set forth any reasons why she was prejudiced by the judge’s consideration of the commissioner’s motion to reconsider and vacate. The judge’s decision, in this regard, did not constitute an abuse of her discretion.

The commissioner is the only party who has appealed from the order of expungement. He has expressed no opinion on the propriety of the expungement order as purportedly directed to other State officials, including the clerk of the court or the criminal history systems board (board). The commissioner’s appeal is limited to the records of the Department of Probation which, in his view, are expressly subject to sealing under G. L. c. 276, § 100C. Because there is not before us any challenge to the judge’s allowance of the expungement motion with respect to records held by the board or by the clerk of the court, we do not consider that portion of the judge’s expungement order. We note that a defendant’s criminal offender record information, maintained by the board, is accessible to a wider number of individuals, agencies, and institutions than a defendant’s sealed record on file with the commissioner. Compare G. L. c. 6, §§ 172-172I, with G. L. c. 276, §§ 100A-100C.

We acknowledge, the amicus brief filed by the Union of Minority Neighborhoods in support of Boe.

Boe has argued that, under the equitable doctrine of judicial estoppel, the commissioner cannot challenge the expungement of her record where the Commonwealth explicitly assented to such a remedy in a joint pretrial motion. Judicial estoppel “precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.” Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640 (2005), quoting Blanchette v. School Comm, of Westwood, 427 Mass. 176, 184 (1998). “The purpоse of the doctrine is to prevent the manipulation of the judicial process by litigants.” Canavan’s Case, 432 Mass. 304, 308 (2000). The flaw in Boe’s argument is that she treats the commissioner and the Suffolk County district attorney’s office as essentially the same party. They are not. Probation functions are within the judicial branch of government, whereas the office of a district attorney is within the executive branch. See Commonwealth v. Milton, ATI Mass. 18, 22 (1998), and cases cited. Although the Suffolk County district attorney’s office is the Commonwealth’s representative in criminal prosecutions before the Boston Municipal Court, see G. L. c. 218, § 27A (g), the interests of the commissioner are reрresented by the Attorney General. See G. L. c. 12, § 3. That the district attorney assented to expungement in the joint pretrial motion does not judicially estop the commissioner from arguing, in a separate and subsequent proceeding, that expungement is not an appropriate remedy. The commissioner was not a party to the underlying criminal proceedings and is not precluded from now challenging the expungement order.

In response to written questions from this court, the commissioner states that there are two parts of a “probation record.” The first part consists of court activity reсord information (CARI), which reflects the record of all trial court appearances and dispositions in criminal cases, juvenile proceedings, and civil protective-order proceedings. The second part consists of “case folder information” compiled by probation officers in connection with their supervision of individuals referred to probation. According to the commissioner, probation records are intended primarily for the use of judges and probation officers in the performance of their duties. The commissioner states that he has not authorized any third рarty (i.e., noncourt personnel) to receive CARI. He refers all third-party requests for access to CARI to the board because the Legislature has designated the board as the disseminator of all criminal offender record information. See G. L. c. 6, § 172. Boe does not dispute this. However, she points out that grants of access to such “departments of the state and local governments as the commissioner may determine” and to “such departments of the federal government and to such educational and charitable corporations and institutions as the commissioner may determine,” G. L. c. 276, § 100, are subject to the discretion of the commissioner (which could change), but that grants of access to “the justices and probation officers of the courts, to the police commissioner for the city of Boston, and to all chiefs of police and city marshals” do not appear to be discretionary.

Because the Saugus police department did not appeal from the expungement order, the propriety of the portion of the order pertaining to police records was not before the court and, therefore, was not addressed. See Commonwealth v. Gavin G., 437 Mass. 470, 472 n.3 (2002).

In Commonwealth v. Gavin G., supra at 482, the court pointed out that “when confronted with a proposal that records of all juvenile proceedings be expunged when the juvenile reached seventeen years of age, the Legislature did not opt ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to provide that remedy. See 1971 House Doc. No. 4290.” Given the unique history, goals, and policies of the juvenile justice system to protect and act in furtherance of a child’s welfare, see id. at 472, it is doubtful that the Legislature intended to provide greater confidentiality protections to the records of adult offenders than it was willing to extend to juveniles.

On a related note, in the contеxt of evaluating whether to allow a defendant’s petition to seal his record under G. L. c. 276, § 100C, the court in Commonwealth v. Doe, 420 Mass. 142, 151 (1995), stated that a defendant’s case for confidentiality “becomes stronger if the dropping of the charge is premised on a ‘mistake’ in bringing it (for example, defendant was misidentified or police acquired credible information exonerating defendant), . . . and it is correspondingly weakened if the prosecutor is simply unable to prove the charge” (emphasis added). See Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 358 (1995) (case for sealing record strong where prosecution abandoned because founded on mistake).

In Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., supra at 652, the court distinguished statutes that exрlicitly protect juvenile court and probation records. It reviewed the protections afforded to juveniles under G. L. c. 276, §§ 100A and 100B, but it pointed out that those statutes do not encompass “records not maintained by either the court or probation department,” such as records maintained and disseminated by law enforcement agencies, which were at issue in that case. Id. at 653. We have stated that “[ijmplicit in [this] distinction is the conclusion that, where such statutory or regulatory protections do exist, a Juvenile Court judge has no inherent authority to order expungement of the records.” Commonwealth v. Gavin G., supra at 473.

“The inherent powers of the judiciary are those ‘whose exercise is essential to the function of the judicial department, to the maintenance of its authority, or to its capacity to decide cases.’ ” Querubín v. Commonwealth, 440 Mass. 108, 114 (2003), quoting Gray v. Commissioner of Revenue, 422 Mass. 666, 672 (1996). A court’s inherent powers exist independently from statute because they directly affect the capacity of the judicial department to function. See Querubín v. Commonwealth, supra at 114-115. The very concept of inherent power “carries with it the implication that its use is for occasions not provided for by established methods.” Brach v. Chief Justice of the Dist. Court Dep’t, 386 Mass. 528, 536 (1982), quoting O’Coin’s, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 516 (1972). The existence of statutory authority governing a particular matter negates the exercise of a court’s inherent powers in that regard. See note 12, supra. See also Commonwealth v. Jackson, 369 Mass. 904, 919-920 (1976) (court does not possess inherent power to suspend imposition of mandatory minimum sentence prescribed by statute; it is not court’s function to question necessity, expediency, or wisdom of settled legislative judgment).

Although not directly on point, we note that a judge does have the inherent authority to expunge a civil abuse-protection order, issued pursuant to G. L. c. 209A, from the Statewide domestic violence record-keeping system (maintained by the office of the commissioner) in the rare and limited circumstances where the judge has found by clear and convincing evidence that the order was obtained through fraud on the court. See Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 732, 737 (2006) (stating that sealing record of c. 209A order would not remedy defiling of court). Contrast Vaccaro v. Vaccaro, 425 Mass. 153, 157-158 (1997) (where domestic violence records maintained in response to express legislative directive that contains no expungement provision, expungement is not available remedy). The facts of the present case do not involve fraud on the court.

We do not address whether the statutory requisites for sealing have been satisfied in this case. The second paragraph of G. L. c. 276, § 100C, authorizes the sealing of a defendant’s records only when “it appears to the court that substantial justice would best be served.” A defendant seeking to have criminal records sealed must follow the two-step procedure described in Commonwealth v. Doe, 420 Mass. 142, 149-151 (1995). In deciding whether “substantial justice” supports sealing a record, a judge should look to the reason for the dismissal and the risk of specific harm to the defendant if the record is not sealed. See id. at 151-152. The Appeals Court rightly recognized the unfairness, in the circumstances presented ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍here, of placing the burden on Boe to show that her probation record should be sealed. See Commonwealth v. Boe, 73 Mass. App. Ct. 647, 651 n.7 (2009). Nonetheless, that is how the Legislature has determined that a defendant in Boe’s position, having had her criminal case dismissed, must proceed.