Mass. Trial. Ct. R. 5
Mass. Trial. Ct. R. 5
Rule 5(a), Remote Accessibility of Information in Electronic Form Through the Public Internet Portal. All publicly available docket information in civil and criminal proceedings, except those exempted pursuant to Rule 5(a)(1)(iii) and Rule 5(a)(2)(iii), shall be made available electronically to the extent that the public shall be able to search and view the information designated in this rule. At this time, this rule does not encompass remote access to audio, audiovisual, or electronic images, including portable document format ("PDF") by the general public. The Chief Justice of the Trial Court has authority to expand remote access to include audio, audiovisual, or electronic images when technology and policy allow.
Rule 5(a)(1), Remote Accessibility of Civil Case Types. All civil case types not exempted by statute, rule, court order, standing order, or determination of the Chief Justice of the Trial Court shall be made available.
Exempted Civil Case Types. A list of exempted case types shall be maintained on the Trial Court's website. A non-exhaustive list of exempted case types can also be found in Addendum A, "Records Excluded From Public Access."
Notwithstanding amendments to the list of exempted case types, the following case types shall always remain exempted from the Public Internet portal:
Harassment and Domestic Abuse Records. The Federal Violence Against Women Act (VAWA) prevents the courts from displaying harassment and domestic abuse case types on the Internet. See 18 U.S.C. § 2265(d)(3) ("A State . . . shall not make available publicly on the Internet any information regarding the registration, filing of a petition for, or issuance of a protection order, restraining order or injunction, restraining order, or injunction in either the issuing or enforcing State, tribal or territorial jurisdiction, if such publication would be likely to publicly reveal the identity or location of the party protected under such order."). Thus, cases and orders entered under G.L. c. 208, § 18, G.L. c. 209, § 32, G.L. c. 209A, G.L. c. 209C, § 15, or G.L. c. 258E, as well as any similar order, shall not be made available through remote access .
Sexually Dangerous Person Proceedings. The court record in these proceedings conducted pursuant to G.L. c. 123A, § 1, et seq., often involves voluminous records identifying the names of victims of sexual assault and their families. Pursuant to G.L. c. 265, § 24C, the portion of the records of a court which contains the name of the victim in an arrest, investigation, or complaint for rape or assault with intent to rape in certain specified offenses, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint is or would be prosecuted. Under section 24C, except as otherwise provided, it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as a victim of the specified offenses. The public may contact the Sex Offender Registry Board and the Department of Criminal Justice Information Services for information regarding sex offenders and persons with a criminal history.
Rule 5(a)(1)(i)(B), Address of Self-represented Litigants. The current mailing addresses for all attorneys or self-represented litigants is required to allow parties and the court to promptly and effectively serve notice, filings, and decisions on all necessary parties. Self-represented litigants may provide a "preferred" address, such as a United States post office box number, if they do not want their home address viewable on the Trial Court's Public Internet Portal.
Rule 5(a)(1)(ii), Search. As the technical capabilities of the Public Internet Portal change, the Chief Justice of the Trial Court may expand the available search fields for civil cases. Future possibilities include searching by date or by case type.
Rule 5(a)(2), Criminal Cases. All criminal case types not exempted by statute, rule, court order, standing order, or determination of the Chief Justice of the Trial Court shall be made available on the Public Internet Portal. However, as a matter of policy, the committee has determined that criminal case searches will be limited to case number. Therefore, search by defendant name shall not be permitted on the internet portal for criminal cases.
Each court should provide in the Clerk's office a kiosk for the public to use to view court records of criminal cases that are not otherwise prohibited from public disclosure. Searches of court records on the court kiosk will not be limited to case number.
The Criminal Offender Record Information (CORI) statute, G.L. c. 6, §§ 167-178B (CORI) governs the dissemination of criminal offender record information. The legislative history to the 2010 amendments to the CORI statute provides that the intent was to strike "a great balance . . . between providing information that the public has a right to know and protecting people's privacy." State House News Service, Nov. 18, 2009 (statement of Sen. Creem on Senate Doc. No. 2210). If the Trial Court were to provide the public with the ability to remotely search criminal cases by a defendant's last name, which could essentially reveal a defendant's entire criminal history, it could thwart the careful balance between access and privacy struck by the Legislature in enacting the CORI statute.
The 2010 CORI reform enacted by the Legislature includes enhanced online access to a record subject's criminal history record and expanded the group of people who could receive this information. G. L. c. 6 § 172(a); see generally Gregory I. Massing, "CORI Reform Providing Ex-Offenders with Increased Opportunities Without Compromising Employers' Needs", 55 Boston B.J., no. 1, 2011, at 21, 22, 24. However, the Legislature also gave record subjects the ability, free of charge, to obtain a list of everyone, other than a criminal justice agency, who has accessed their CORI. Id. at 21, 24. This provides a check on CORI access and usage. The CORI law also provides for review and issuance of penalties for improper usage of CORI information. G.L. c. 6, § 178 1/2. Given these numerous protections and limitations, the Legislature instituted a system that included accountability for CORI access and use. Such limitations and accountability could not reasonably be maintained if a defendant's criminal history could be pieced together through a search on the Trial Court's website. For members of the public seeking a criminal offender record on an individual, the Department of Criminal Justice Information Services ("DCJIS") has created a website ("iCORI") for registered users to request and obtain criminal offender record information. See 803 Code Mass. Regs. § 2.00 et seq.
Further, allowing remote access to court records in certain criminal cases implicates the concerns identified by the Supreme Judicial Court in Commonwealth v. Pon, 469 Mass. 296, 307 (2014), namely that access to criminal records negatively affects a defendant's future employment prospects, which, in turn, makes rehabilitation more difficult. The Court's decision in Pon was limited to closed criminal proceedings that resulted in a dismissal or an entry of nolle prosequi and also possibly to acquittals and findings of no probable cause. Id. at 316 & n. 24. All of these would be viewable on the Trial Court's Public internet portal; such access runs against the specific concerns enunciated in Pon. For court records not implicated in Pon, there is nonetheless a concern that permitting a broad criminal record search through the internet portal would frustrate the privacy and rehabilitation concerns identified and protected by the Legislature and Supreme Judicial Court.
The committee concluded that allowing the public to view the progress and resolution of individual proceedings by case number allows for "the contemporaneous review [of judicial proceedings] in the forum of public opinion," Commonwealth v. Cohen, 456 Mass. 94, 106 (2010), quoting In re Oliver, 333 U.S. 257, 270 (1948), without allowing for criminal offender record information to be easily assembled from the Internet Portal. Public access to criminal records and proceedings in the courthouse shall not be affected or limited by this rule.
Rule 5(b), Access through the Attorney Portal. The Attorney Portal is intended as a convenience for attorneys to easily access their cases and other cases in which they have a legitimate interest. Attorneys may register to use the Attorney Portal by providing their business email address on file with the Board of Bar Overseers. Registered attorneys may log in to the portal upon certifying the attorney has read and agreed to comply with the Trial Court's "terms of use" agreement posted on the portal. Registered attorneys will have access to their calendar and cases and the ability to search other non-exempt cases throughout the portal by party name or other criteria as set by the Chief Justice of the Trial Court. The "terms of use" are intended to prevent misuse, tampering, and criminal behavior, including any activity that would seek to violate the intent of the CORI law.
Access to the Attorney Portal should be available to both attorneys licensed in Massachusetts and attorneys licensed in other jurisdictions who enter an appearance pro hac vice and have complied with S.J.C. Rule 3:15.
Exempted Case Types. When feasible, otherwise exempted cases should be available for attorneys who have entered an appearance in that case to view through the Attorney Portal. However, impounded cases will not be available through the Attorney Portal. Each appropriate Department ofthe Trial Court may request permission from the Chief Justice of the Trial Court to exempt certain criminal or civil case types or categories of information from remote access.
Remote Accessibility of Case Documents through the Attorney Portal. Electronic access to portable electronic documents (PDFs) stored in the court's document management system may be through the Attorney Portal. The Chief Justice of the Trial Court may determine which documents and case types will be available through the Attorney Portal. Otherwise accessible documents may be restricted by the court ifthey include personal identifying information not redacted pursuant to S.J.C. Rule l:24.
Terms of Use
Users of the Attorney Portal agree to the following:
. You may use the Attorney Portal to access information in civil cases and criminal cases, and to access calendar events. You may access information in criminal cases only in connection to your representation of a client in a criminal or disciplinary matter. However, you may not use your access to criminal cases to obtain criminal offender record information (CORI) for purposes that violate the CORI law, G. L. c. 6, § § 167 et seq., to provide CORI to individuals who are not your clients in a criminal matter, or otherwise to provide CORI in violation ofthe CORI law.
. You may not use the Attorney Portal to access information in a manner that knowingly risks the integrity or security ofthe Trial Court's case management system; or for any purpose prohibited by law or court rule. Nor may you engage in "data scraping". For purposes ofthese Terms ofUse, "data scrapping" refers to the use of a computer program or other automated process or technique to extract or collect data from the Trial Court's case management system".
. You may not sell information obtained from these records, directly or indirectly, to third parties and shall not use or allow others to use information obtained from these records for non-litigation purposes such as in connection with hiring or tenant screening.
. You must keep your user name and password (login credentials) confidential. You may allow persons under your supervision and direction to use your login credentials, but you will be fully responsible for all activity that occurs under your login credentials.
. Use of the Attorney Portal is subject to monitoring and auditing by the Trial Court at any time. If you ( or persons who use your login credentials) use the Attorney Portal in any way that is prohibited by these Terms of Use, you may be denied future access to the Attorney Portal and will be subject to sanctions as provided by law or court rule. Any violation ofthe Terms ofUse may be referred to the Board ofBar Overseers.
. The Trial Court reserves the right to amend, or discontinue any feature ofthe Attorney Portal, or amend the conditions of its use at any time. Absent unforeseen circumstances, any such changes will be announced in advance on the Attorney Portal.
. The Trial Court shall not be liable for any damages associated with use of the Attorney Portal.
I affirm that I have read and understand these Terms and Conditions, that I accept them, and that I agree to comply with them.
Rule 5(c), Nonparty Information. Information that specifically identifies an individual who is a witness in a criminal case, victim of a criminal or delinquent act, or juror shall not be stated in the caption of a filing. This subsection is intended to protect the privacy and safety of persons who are not litigants. Docket entries should not be created that use the full name of such individuals, for instance in conjunction with the title of a motion or notice relating to that person, except when required by law.
Rule 5(d), Availability of Additional Records. This subsection permits the Chief Justice of the Trial Court to determine that additional electronic court records may be made remotely accessible to the public, which may include expanded availability of PDFs.
Rule 5(e), No Creation of Rights. The public has a qualified common law right to access court records in a courthouse. Although there is no constitutional or common law right to remote access of the same court records, the Trial Court recognizes that advances in technology provide the public and the court with additional means of access that benefit both the public and the court. This rule acknowledges the desirability of providing remote access to court information, and balances that access with the limits imposed by law and privacy concerns. Rule 5 does not provide the public a right of access to any court record prohibited from public disclosure (see Addendum A, "Records Excluded From Public Access"), nor to the provision of remote access to all content of publicly available court records. The right of the public to access to court records at a Clerk's office pursuant to Rule 2 shall not be limited because of concurrent remote access.