Mass. Trial. Ct. R. 2
Mass. Trial. Ct. R. 2
Rule 2(a), Scope. This rule governs the procedure for the public to obtain access to publicly available court records in a courthouse. Access to publicly available court records in a courthouse shall be provided in paper form and through a computer kiosk.
Rule 2(b), Request. Any member of the public may submit to the Clerk at a courthouse a request to access a court record. Each Department of the Trial Court may determine whether to require a written form for all requests or to permit oral and written requests. All written requests shall be submitted on a uniform form prescribed by the Chief Justice of the Trial Court. A written request form is not required to be retained by the Clerk after the court record has been returned. Each Clerk may elect to dispose or retain completed forms, but if retained, the forms should not be maintained in the court record or case file.
For security and record keeping purposes, the best practice, where feasible, is for the Clerk to require the requester to fill out a written form (or submit an electronic request) providing the requester's name and address and specifying the case name, case number, and document(s) requested. Neither the Clerk nor any request form may demand or require a reason for the request. Nonetheless, the Clerk may ask for such information because often such a simple inquiry enables the Clerk to assist the requester in focusing a request. The reason for a request might also inform a Clerk's use of discretion in determining the form in which the Clerk provides the record or any reasonable limits that should apply. Where a requester desires a copy, it may be prudent for the request form to allow the requester to express a preference for a paper copy or a scanned, PDF electronic copy, as the Clerk should provide a copy in the form desired by the requester if practical. The Clerk shall charge and collect a fee for copying or scanning and providing a PDF as provided in the Uniform Schedule of Fees.
Rule 2(c), Reasonable Limits. The Clerk may set reasonable limits on the time, location, volume, and manner of access to protect the integrity of the court record and to protect the Cl e r k ' s office from undue disruption. See Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 505 (1989). In exercising the discretion contemplated in this rule, for example, the Clerk may reasonably limit the public's use of the Clerk's office lobby or space for the purposes of copying court records. The Clerk may also reasonably limit the devices used and the number of court records requested during a certain time period. In both of these circumstances, the Clerk may be guided by considerations including whether the use of the space or the number of requests negatively affects the Cl e r k ' s office staff's ability to perform other essential work, or whether the public's requests are negatively affecting the ability of other members of the public to access court records.
An original court record should not be taken from the Clerk's office without the Clerk's express permission or an order of the court. Transfer of the case file for the purposes of a judge's rotation, interdepartmental transfer, consolidation, or for an appeal, does not constitute the taking or removal of the court record. An order of the court is not required for the court record, including information protected from public disclosure, to be transferred or sent to another court.
Rule 2(d), Production. To further the policy of general public access, the Clerk should accede to the requester's choice of format unless doing so imposes a significant, unrecoverable cost or other burden on the Clerk or the court. For example, when requested, the Clerk should provide a copy as a PDF instead of as paper.
Rule 2(e), Exhibits. Documentary exhibits submitted to, and accepted by, a court in the course of adjudicatory proceedings are documents which the public shall be allowed to access and duplicate, unless the exhibits are contraband or are otherwise prohibited from public disclosure. In addition, a Clerk may withhold access to documentary exhibits if access poses a threat of deterioration or destruction of those exhibits.
Non-documentary exhibits pose special challenges, both logistical and pursuant to the Clerk's statutory duty in criminal cases to "prevent . . . destruction or deterioration" of evidence. G.L. c. 278A, § 16(a). Accordingl y , a Clerk may allow the public to view non-documentary exhibits in the Clerk's possession, at least where such viewing would not pose a threat of deterioration or destruction of the exhibits. The Clerk shall not allow the public to handle non-documentary exhibits without leave of court.
The Clerk can allow access only to exhibits retained in the possession of the Clerk. In civil cases, the Clerk is not obligated to retain trial exhibits and such exhibits are routinely returned to the offering party once the appeal period has ended or earlier, if authorized by a judge. Business records produced pursuant to G.L. c. 233, § 79J, and hospital records under G.L.c.233, § 79, are to be returned "upon the completion of such trial or hearing."
In criminal cases, pursuant to the Trial Court's Exhibit Retention Policy in Criminal Cases, which is available on the Trial Court's website, controlled substances and currency subject to civil forfeiture are returned to the Commonwealth at the completion of a trial or hearing. Other exhibits are retained by the Clerk for the period of time that the defendant remains incarcerated or under parole or probation supervision. The Clerk, however, has the discretion to return exhibits to the offering party whenever retention is impracticable, and the judge also has the discretion to order earlier return of exhibits. Because the Clerk has the statutory duty to "retain all such evidence or biological material in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration," G.L. c. 278A, § 16(a), public access to physical exhibits may be limited or impossible.
Rule 2(f), Computer Kiosk. This rule requires the Trial Court to provide the public with a computer kiosk or terminal for accessing electronic court records. Such electronic access may lead to requests for particular paper records, which will be handled as any such request would be handled. The Clerk may set reasonable restrictions on the amount of time that any one person may use a computer kiosk, the number of searches, or the number of documents viewed, to ensure that the computer kiosk is not monopolized or misused.
Rule 2(g), Impounded Records. Only parties to and attorneys of record with an active appearance in a restricted case shall be granted access to the impounded court records in that case, unless the records are sealed or access is ordered otherwise.
Rule 2(h), Available Formats for Reproduction. This rule recognizes the variety of formats in which a court record exists and may be purchased, including a paper copy produced by a Clerk, a printout by the Clerk, reproduction by a machine made available for public use, audio or audiovisual recording, electronic form (e.g., portable document format ("PDF"), and on a CD or DVD or other device. For computer security reasons, the Clerk will not store electronic documents on a person's self-provided flash drive, CD, DVD, or other media.
Rule 2(h)(3), Reproduction by Court-Provided Machine. Some courts and Clerk's offices provide for public use a copy machine. In such locations, the public has the option to use the machine or request the Clerk to produce the copy. The cost for the public to use the machine is usually less than the fee required for the Clerk to produce the c o p y. No additional fee beyond the machine's fee should be charged for a copy.
Rule 2(h)(4), Audio or audiovisual recording. To the extent the Clerk or the court department maintains an audio or audiovisual recording of a public hearing or trial, upon request the Clerk shall provide a copy, subject to any statute, court rule, standing order, case law, or court order. See Bledsoe v. Commissioner of Correction, 470 Mass. 1017, 1018 (2014) ("[W]e would expect that, if a DVD or other official record of a video conference exists, a litigant would be allowed to purchase it at his or her own expense. An official video record of a hearing would be no less of a judicial record than a transcript or audio cassette."); Commonwealth v. Winfield, 464 Mass. 672, 679-680 (2013) ("Where an electronic recording of a proceeding is made in the absence of a court reporter, the court file contains either the recording itself or a log entry that would allow the public to know the beginning and end points of the proceeding so that they may obtain a copy of the recording."); see also id. at 679 ("The First Amendment right of access to court trials includes the right to purchase a transcript of the court proceeding that was open to the public.").
Rule 2(i), Fee. Pursuant to G.L. c. 262, § 4B, the Clerk shall charge a fee as set forth in the Trial Court's Uniform Schedule of Fees. The Uniform Schedule of Fees is available on the Trial Court's website
Rule 2(j), Requester 's S el f -Service Duplication of a Court Record. This subsection is consistent with Supreme Judicial Court Rule 1:19(3), which states: "A judge may permit the use of electronic or photographic means for . . . the perpetuation of a record when authorized by law, for other purposes of judicial administration . . . ."
(1) Handheld Device. A member of the public may use a cellular telephone or other electronic imaging device to photograph or generate an image of a court record in a Clerk's office provided doing so does not unreasonably interfere with the operation of the Clerk's office or make an audio or video recording.
A "personal handheld scanner or electronic imaging device" includes a device held in one's hand that is moved by hand across the document being scanned. This includes a battery operated electronic scanning device that does not leave marks on the court record or unreasonably interfere with the Clerk's operations. The Clerk may exercise discretion not to permit any handheld device in order to maintain the integrity and format of the court records.
The Trial Court has adopted a Policy on Possession and Use of Cameras and Personal Electronic Devices (effective August 14, 2015). Under the polic y , some Trial Court facilities do not permit the public to bring cellular telephones and other personal electronic devices into a court facility. The Trial Court's policy and a list of the Trial Court facilities that have banned the public's use of cellular telephones and PEDs is available on the Trial Court's website. Rule 2(j) does not supersede a particular courthouse's security regulations. If the court facility does not permit cell phones within the building, the requester may obtain a copy through other means identified in this rule.
(2) Sheet-Fed or Flatbed Scanner. A sheet-fed scanner or a flatbed scanner is a portable scanner that rests on a flat surface and requires pages to be fed through the machine. It is similar to a copier. A document is typically placed onto the transparent glass of the scanner, where a scanner head assembly moves underneath the glass to capture the image contained on the document. To obtain a legible scan of a record contained in a bound volume using a flatbed scanner, it is necessary to press the volume against the glass until the page lies flat. Pressing a bound volume against the glass may leave a mark or impression on the original record. Similarly, separation of a document's binding may be necessary. For reasons including potential harm to the original records, the Clerk may limit or prohibit scanning on a sheet-fed or flatbed scanner, and may condition such use on the person's restoration of the binding to secure the document's original condition.