The Commonwealth and William O’Connell (collectively, petitioners) filed a petition in the county court, pursuant to G. L. c. 211, § 3, seeking relief from a District Court judge’s order releasing from impoundment a redacted version of a search warrant affidavit. The affidavit contains a recitation of allegations made against O’Connell, a prominent Massachusetts real estate developer, that are now the subject of criminal charges of, among other things, statutory rape. On the Commonwealth’s motion, the affidavit was impounded shortly after police executed and returned the warrant. George W. Prescott Publishing Company, LLC (Prescott), which had been permitted to intervene in the criminal proceedings in the District Court, sought access to the impounded affidavit on the grounds that the document was presumptively public, and that no good cause existed for continued impoundment. After several hearings, the District Court judge vacated his earlier order impounding the affidavit, but further ordered that the complainant’s name and other identifying information be redacted from the affidavit before it was made available to the public.
The petitioners filed their G. L. c. 211, § 3, petition contending that the judge erred in vacating the order of impoundment because the affidavit contains “reports of rape” that are barred from disclosure pursuant to G. L. c. 41, § 97D. They argued also that disclosure would unduly prejudice O’Connell, in violation of his right to a fair trial under the Sixth Amendment to the United States Constitution. The single justice reserved and reported the matter to this court. We conclude that G. L. c. 41, § 97D, does not apply to search warrant affidavits, and that the judge did not err in vacating the order of impoundment.
On April 5, 2011, after the search warrant had been executed and the return of service filed in the District Court, the Commonwealth moved to impound all materials filed in connection with the search warrant, including the warrant application, Prince’s affidavit, and the warrant return. The Commonwealth asserted that the investigation of O’Connell was ongoing, that it was the “clear public policy” of the Commonwealth to protect the identity of child sexual assault victims, and that the search warrant materials “should be held confidential” pursuant to G. L. c. 41, § 97D. That motion was allowed “for six months, until [October] 5, 2011.”
On April 27, Prescott, publisher of the Patriot Ledger newspaper, filed a civil complaint in the District Court against the “Clerk-Magistrate of the Quincy District Court,” the district attorney for the Norfolk district, and O’Connell, seeking to terminate impoundment of the search warrant materials (civil case). At the same time, Prescott filed an emergency motion to terminate the impoundment order, citing G. L. c. 276, § 2B. Consistent with our common law, that statute provides that search warrant materials are presumptively public after the return has been filed. See Republican Co. v. Appeals Court,
Two days later, a criminal complaint issued in the District Court charging O’Connell with aggravated statutory rape, G. L. c. 265, § 23A; engaging in sexual conduct for a fee, G. L.
A hearing was held in the criminal case on Prescott’s motions to intervene and to terminate or modify the impoundment order. Neither O’Connell nor his attorney was present at the hearing.
At two subsequent hearings, the Commonwealth argued that continued impoundment of the remaining materials was warranted because the affidavit and other search warrant materials constituted a “report of rape and sexual assault” barred from
The petitioners then filed a G. L. c. 211, § 3, petition in the county court. The single justice extended the stay of the judge’s order until further order of the county court. Following a hearing, the single justice reserved and reported the case to this court.
Discussion. Under our common law, judicial records are presumptively available to the public. Commonwealth v. Silva,
The principle that search warrants are presumptively public has also been incorporated by legislative action. General Laws c. 276, § 2B, which governs the issuance and return of search warrants, provides that “[u]pon the return of [a] warrant, the affidavit shall be attached to it and shall be filed therewith, and it shall not be a public document until the warrant is returned.” It is implicit in this provision that, “once the warrant and affidavit have been returned to the court, they become public documents.” Newspapers of New England, supra.
Notwithstanding this presumption of public access, the public’s right to view search warrant materials is not unlimited. Judges may restrict access to judicial records through impoundment where “good cause” is shown, an assessment that requires a careful “balancing of] the rights of the parties based on the particular facts of each case.” Boston Herald, Inc. v. Sharpe,
Against this well-established tradition of public access,
1. Whether G. L. c. 41, § 97D, applies. General Laws c. 41, § 97D (§ 97D), provides, in relevant part: “All reports of rape and sexual assault or attempts to commit such offenses and all conversations between police officers and victims of said offenses shall not be public reports and shall be maintained by the police departments in a manner which will assure their confidentiality.”
We have not previously considered whether, by enacting § 97D, the Legislature intended, where a search warrant affidavit contains a report of rape or sexual assault, or conversations between police officers and the victim of such an offense, to alter the statutory and common-law presumption that a search warrant affidavit is available to the public once the warrant has been returned.
The petitioners claim that the Legislature intended § 97D to apply not only to police records containing reports of rape or
We are not persuaded by the petitioners’ argument. On its face, § 97D does not apply to search warrant affidavits or other judicial records. By its plain terms, the statute is directed to communications received by police officers —■ “reports of rape and sexual assault” and “conversations between police officers and victims of said offenses” — and requires that such reports and conversations “shall be maintained by the police departments in a manner which will assure their confidentiality.” Although the statute provides that these reports and conversations “shall not be public reports,” it does not by its terms preclude publication in court of police reports or the content of a victim’s conversations with police regarding an alleged rape or sexual assault. Such information is routinely disclosed publicly by police in the course of judicial proceedings.
“[W]e do not interpret a statute to modify or abrogate an area traditionally guided by the common law, such as public access to judicial records, unless the intent to do so is clear.” Globe Newspaper Co., petitioner,
Additionally, any construction of § 97D that would apply to judicial records would be at odds with the general principle that blanket prohibitions on public access to court records are to be avoided. See, e.g., New England Internet Café, supra at 85 (impoundment proceedings “must take shape around the facts
The expansive reach of § 97D urged by the petitioners also is not supported by the context in which the statute was enacted. The Legislature enacted § 97D through St. 1974, c. 581, inserting G. L. c. 41, §§ 97B-97D, entitled “An act establishing a method of reporting and prosecuting the crime of rape and counselling of victims of rape” (act). These provisions establish a police unit for investigating and prosecuting rape; require a special telephone line through which that unit may receive reports of rape; and require that those reports remain confidential. The act also provided for training of members of rape prevention and prosecution units in police departments. See G. L. c. 6, §§ 118, 156.
In enacting these provisions, the Legislature appeared to be concerned with aspects of the internal proceedings and records of police departments. The act makes no reference to court documents, nor does it otherwise support an inference that the Legislature intended the mandate of confidentiality in § 97D to reach beyond reports in the possession of police departments.
2. Whether there is good cause for impoundment. The petitioners next argue that, even if § 97D is not interpreted to mandate permanent confidentiality of the search warrant affidavit, the judge nevertheless erred in determining that there was no good cause to continue the order of impoundment. “We review orders concerning impoundment for abuse of discretion or other error of law.” New England Internet Café, supra at 83. Our inquiry is limited to the record as it existed “at the time the order was issued.” Newspapers of New England, supra at 629.
As noted, the public’s right of access to judicial records may be restricted only on a showing of “good cause.” Republican Co., supra at 223. To determine whether good cause exists, “judges must carefully ‘balance the rights of the parties based on the particular facts of each case,’ ‘take into account all relevant facts,’ and ‘tailor the scope of the impoundment order so that it does not exceed the need for impoundment.’ ” New England Internet Café, supra at 91, quoting Boston Herald, Inc. v. Sharpe,
In the context of a criminal proceeding, the public’s right of access, whether derived from the United States Constitution or common law, must be balanced against the defendant’s constitutional right to a fair trial. Newspapers of New England, supra at 632. In balancing these rights, a court may consider “whether the information has already been disclosed, the nature of the documents under impoundment, or whether there are alternatives to withholding public access, such as change of venue.” Boston Herald, Inc. v. Sharpe, supra at 608. “Protecting a defendant’s right to a fair trial is undeniably a substantial government interest.” Newspapers of New England, supra, citing Press-Enterprise Co. v. Superior Court,
Here, the judge determined that the petitioners did not satisfy their burden of establishing good cause to continue the order of impoundment. The petitioners claim that the judge’s decision was erroneous because he failed to consider all of the relevant factors. They argue that the judge impermissibly based his decision on a generalized notion of “public interest,” and improperly concluded that O’Connell would not be prejudiced by release of the affidavit because “courts have always found that there is a way to ensure a fair trial.” The petitioners observe that a “defendant’s constitutional right to a fair trial is paramount.” Therefore, they argue, a defendant’s interest in seeking impoundment necessarily trumps the broad concept of public interest, and the judge
We disagree. If we were to accept the petitioners’ assertion, “much about the world of crime and the operation of the criminal justice system would be withdrawn from public view.” Matter of Application & Affidavit for a Search Warrant,
There will undoubtedly be circumstances where the prejudicial nature of certain information, in combination with the type of community from which prospective jurors will be drawn or the stage of the criminal proceedings at which the information is released, will make it difficult or impossible to eradicate prejudicial publicity from the minds of prospective jurors. See, e.g., Newspapers of New England, supra at 633-634 (affirming judge’s decision to impound search warrant affidavit). Cf. Commonwealth v. Toolan,
The judge’s comment that “courts have always” found ways to ensure a fair trial when information is released from impound
The judge questioned counsel extensively in an effort to determine how the information in the affidavit might prevent O’Connell from receiving a fair trial. See Newspapers of New England, supra at 639 (Wilkins, J., concurring) (“The motion judge had to support [the decision to impound] by showing what facts would be unfairly prejudicial and how the criminal defendant’s rights could not be reasonably protected other than by impoundment”). He was not required to adopt O’Connell’s claims, based on his conclusory assertions of prejudice, that pretrial publicity would prevent him from receiving a fair trial. See Press-Enterprise Co. v. Superior Court,
Conclusion. The case is remanded to the county court. The
So ordered.
Notes
We acknowledge the amicus brief of the Massachusetts Newspaper Publishers Association, New England Newspaper and Press Association, Citizen Media Law Project, and New England First Amendment Coalition on behalf of Prescott, and the amicus brief of the Attorney General.
The Commonwealth also filed a motion to impound all discovery materials, police reports, evidence, and any exhibits submitted to the court by police or the Commonwealth. A different judge allowed that motion.
It appears from the record that O’Connell had retained new counsel shortly before the hearing date, and that his new counsel did not receive notice of it. O’Connell raises no issue regarding his absence from that hearing.
We indorsed this procedure in Republican Co. v. Appeals Court,
The judge ordered that the redacted affidavit be “unsealed.” Although “impoundment” and “sealing” are related concepts, and are often used interchangeably, the terms differ in meaningful respects. “Impoundment” refers to “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 of Impoundment Procedure 901 (LexisNexis 2011-2012). “Consequently, an order of impoundment prevents the public, but not the parties, from gaining access to impounded material, unless otherwise ordered by the court.” Pixley v. Commonwealth,
According to O’Connell and the Commonwealth (collectively, petitioners), during the pendency of this petition, O’Connell was indicted by a grand jury, based on the allegations contained in the affidavit, and criminal proceedings were commenced in the Superior Court. Although the prosecution therefore will not proceed in the District Court, we agree with the petitioners that this appeal is not moot because Prescott still seeks access to the contested search warrant materials, which remain impounded by the District Court. See New England Internet Café, supra at 82 n.8.
We review a question of statutory interpretation de novo, without deference to the motion judge’s conclusion. See Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison,
As we discuss infra, numerous statutes preclude disclosure or publication of a sexual assault victim’s name or other identifying information, whether contained in police or court records.
We reject the petitioners’ argument that our reading of G. L. c. 41, § 97D (§ 97D), will place prosecutors in “an impossible position” in which they must rely upon confidential reports in order to obtain search warrants but, by doing so, will “automatically” transform the reports into public documents. It is the police affidavit (or other document filed in court), not the confidential report, that becomes a judicial record and therefore presumptively public on the warrant’s return. As a judicial record, the affidavit is subject to redaction pursuant to G. L. c. 265, § 24C, and may be impounded on a showing of good cause.
Our reference to § 97D in Montefusco v. Commonwealth,
Although the Uniform Rules on Impoundment Procedure expressly apply only in civil cases, “we have indicated that the uniform rules are highly
At the time of the hearing, O’Connell had not yet been indicted, and the trial would have taken place in the Quincy Division of the District Court Department. As stated, our inquiry is limited to the record as it existed “at the time the order was issued.” Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep’t.
Although Prescott initially sought access to all of the search warrant materials, including the warrant and warrant return, the judge’s focus at the hearing was the affidavit. In his order, the judge expressly released from impoundment only the redacted affidavit; he did not indicate whether the other documents would also be released from impoundment. The petitioners