Impoundment allows sensitive and private information to be withheld from the public record of a civil or criminal proceeding. “[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). Materials can be impounded either by motion of one of the parties and subject to judicial review, or by statute for certain proceedings and criminal offenses.
Impoundment procedure is governed by the Uniform Rules of Impoundment Procedure (hereinafter “URIP”), as codified in Trial Court Rule VIII. 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.
Motion for Impoundment
To request that a portion or all of a case record in any judicial proceeding be impounded, the interested party must file a written motion supported by an affidavit. The motion must include (i) a description of the material sought to be impounded, (ii) the duration for which impoundment is sought, (iii) the reasons impoundment is necessary, and (iv) the reasons other alternatives to impoundment would not afford adequate protection. URIP Rule 2(a). It is important to note that the motion and affidavit themselves are not to be impounded, so it is critical to draft these documents carefully as to not include the actual material sought to be impounded. The movant should also include proposed findings and a proposed order, conforming to URIP Rule 8.
To oppose a motion for impoundment, the opposing party must serve and file an opposing affidavit no later than one day before any hearing. URIP Rule 5.
The court may enter an order of impoundment only after a hearing. If a public hearing would risk disclosure of the information sought to be impounded, the court may conduct an in camera hearing for that portion only. URIP Rule 8 requires that three factors be met to grant a motion for impoundment. (i) There must be a finding of good cause, (ii) the order must state specifically what material is to be impounded and the duration of impoundment, and (iii) the impoundment must be narrowly tailored such that it does not exceed the need for impoundment.
“Good cause” is determined by the court by balancing the rights of the parties based on the particular facts of the case. This balancing includes factors such as the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, the reason for the request, a party’s constitutional rights, investigative secrecy, and the safety of a person or the public. New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 83 (2012); Boston Herald, Inc. v. Sharpe , 432 Mass. 593, 604-605 & 604 n.22 (2000); In re Globe Newspaper Co., Inc., 461 Mass. 113, 120-121 (2011); Commonwealth v. George W. Prescott Pub. Co., LLC, 463 Mass. 258, 268 (2012).
If the court determines that good cause is shown, the order for impoundment must be narrowly tailored to the requirements of the particular case and underlying facts. New England Internet Café, 462 Mass. 76, 85 (2012). An entire case record should not be impounded to protect the confidentiality of some documents.
Filing Motions/Pleadings/Documents “As Impounded”
URIP Rule 13 imposes a duty upon any filing party in a case or court proceeding to ascertain whether any information contained within the document is subject to a court order of impoundment. If possible, the filing party should redact or remove any impounded information. If such information is necessary to the proceeding, the party must give proper notice to the clerk. They should (i) notify the clerk that the filing includes impounded information, (ii) identify the legal authority requiring impoundment of the information, and (iii) identify the location of the impounded information within the document being filed. URIP Rule 13(a, b). If a party inadvertently files a document containing impounded information, any party or the court may move to strike the impounded material from the record. URIP Rule 13(d).
There are some exceptions to the notice requirement in URIP Rule 13(d). Because the following materials are impounded by law, court clerks will impound the material during normal course, and no Rule 13 notice is required: (1) An Affidavit of Indigency and Request for Waiver, Substitution or State Payment of Fees & Costs, on the form prescribed by the Chief Justice of the Supreme Judicial Court under G.L. c. 261 § 27B; (2) a Petition for Abortion Authorization under G.L. c. 112 § 12S, or any materials in such matter; (3) an action for judicial review of the Sex Offender Registry Board, under G.L. c. 6 § 178M, or any materials in such matter; or (4) any confidential document or other material prepared especially for a pre-indictment judicial hearing concerning a grand jury proceeding.
Statutory Impoundment[1]
Some statutes provide that information be impounded during the course of judicial proceedings. If material is impounded by statute, the filing party does not need to move for impoundment, as the material is impounded automatically. The filing party does need to give notice of impoundment to the court clerk, as directed by URIP Rule 13. I’ve included a list of sexual assault statutes that require impoundment. Any records that contain the name of the victim in an arrest, investigation, or complaint for specified sexual assault offenses shall be impounded. G.L. c. 265 §24C. Such offenses include:
Indecent assault and battery on a child under age 14 (G. L. c. 265 §13B); Rape or aggravated rape (G. L. c. 265 § 22); Forcible rape of a child (G. L. c. 265 § 22A); Rape of a child during commission of certain offenses or by force (G. L. c. 265 § 22B); Rape of a child through use of force by certain previously convicted offenders (G. L. c. 265 § 22C); Statutory rape (G. L. c. 265 § 23); Rape and abuse of a child aggravated by age difference between defendant and victim or by mandated reporters (G. L. c. 265 § 23A); Rape and abuse by certain previously convicted offenders (G. L. c. 265 § 23B); Assault with intent to rape (G. L. c. 265 § 24); Assault on a child under 16 with intent to commit rape (G. L. c. 265 § 24B); Trafficking of persons (G. L. c. 265 § 50). Victim program locations such as locations of battered women’s shelters, domestic violence, and rape crisis programs may not be disclosed by court order, or otherwise (G. L. c. 233, §§ 20J, 20K).
[1] A comprehensive but non-exhaustive list of statutory impoundment sources and applicable offenses can be found at https://www.mass.gov/doc/impoundment-sources/download
