NEW BEDFORD STANDARD-TIMES PUBLISHING COMPANY vs. CLERK OF THE THIRD DISTRICT COURT OF BRISTOL & another. [Note 1]

BRAUCHER, J. The Third District Court of Bristol (District Court), like many other courts, indexes criminal records chronologically in a daily docket book and alphabetically in a card index of criminal defendants. Pursuant to the Criminal Offender Record Information (CORI) Act, G. L. c. 6, Section 172, as amended through St. 1977, c. 841, the chronological index is kept open to the public, but the alphabetical index is not. The plaintiff, a newspaper publisher, challenges the constitutionality of the statute and seeks access to the alphabetical card index. We hold that there has been no violation of the plaintiff's rights either with respect to the separation of powers or with respect to the freedom of the press, and we order the entry of a judgment declaring the rights of the parties.

The plaintiff filed its complaint in September, 1977, seeking a declaration that the alphabetical index is not CORI and an injunction ordering the defendants, the clerk and the presiding justice of the District Court, to permit the inspection of the alphabetical index or to provide an equally convenient and practicable method of access to the criminal dockets. The controversy was affected by the amendments of G. L. c. 6, Sections 167 and 172, by St. 1977, c. 691, effective October 29, 1977, and St. 1977, c. 841, effective December 23, 1977, but the constitutional issues remained. The case was submitted on stipulated facts, and a judge of the Superior Court made findings, rulings, and an order for judgment. Judgment was entered February 23, 1978, declaring that the alphabetical index is not CORI, that the defendants' refusal to permit inspection of that index is illegal, and that the legislation purporting to prevent public inspection is unconstitutional as a breach of the separation of powers set forth in art. 30 of the Massachusetts Declaration of Rights. The judgment

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ordered the defendants to make the index available to the plaintiff for inspection and copying. The defendants appealed, and we allowed their application for direct appellate review.

We summarize the stipulated facts. Documents in criminal cases are filed in numerical order by docket numbers assigned when the complaints are filed. The documents and the chronological lists of docket numbers in daily docket books are available for public inspection. The clerk also maintains an alphabetical card index, with a card for each defendant. Each card gives the defendant's name and date of birth and lists docket number, date, offense, and disposition for each case against the defendant in the District Court. The reverse side of the card lists other information such as social security number, birthplace, physical description, and residence. The alphabetical card index is used by the clerk's office in scheduling cases for trial and in determining such matters as whether a second offense is involved. The alphabetical index is not open to the public, and the staff will not supply docket numbers for named individuals.

In August, 1977, the plaintiff sought access to the alphabetical index for the purpose of obtaining the docket numbers of any criminal actions against certain individuals for violation of any city or State building, sanitary, or housing codes. The defendants advised the plaintiff that the alphabetical index was not available to the public, because it was CORI as defined in G. L. c. 6, Section 167.

1. The statutes. The CORI Act, G. L. c. 6, Sections 167-178, was originally enacted by St. 1972, c. 805, Section 1. CORI was defined in Section 167 in terms of data compiled by "criminal justice agencies," also a defined term. [Note 2] The Act created a

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Criminal History Systems Board (board), an advisory committee, and a Security and Privacy Council (council). Section 172 restricted dissemination of CORI to "criminal justice agencies" and to "such other individuals and agencies as are authorized access to such records by statute." It seemed clear enough that probation departments were intended to be included among "criminal justice agencies," but it was left in doubt whether court records prepared by clerks of courts were to be treated as CORI. See Rep. A. G. Pub. Doc. No. 12, at 89 (1973).

Related statutes include G. L. c. 66, Section 10, providing for public access to "public records," defined in G. L. c. 4, Section 7, Twenty-sixth. Those provisions do not apply to court records. Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). In addition, the Fair Information Practices Act, G. L. c. 66A, was enacted by St. 1975, c. 776, Section 1. It places certain responsibilities on a "holder" maintaining "personal data." "Holder" is defined in terms of an "agency," and "agency" is limited to "the executive branch of the government." G. L. c. 66A, Section 1.

On November 1, 1973, the Commissioner of Probation advised the board of a vote of the Committee on Probation on October 30, 1973. The vote construed the CORI Act "to permit the Commissioner of Probation to continue in the general superintendence of the collection of court prosecution data, maintenance of the central file, and dissemination of such data to judicial officers." As to dissemination of criminal history data to agencies outside the judicial

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branch, however, the Commissioner was directed to comply with the board's regulations. He was also authorized to cooperate with the board by contributing information "insofar as such cooperation is practical and does not substantially interfere with his services to the judicial branch."

In Opinion of the Justices, 365 Mass. 639, 645-647 (1974), the opinion was expressed that the creation of an agency in the executive branch to control electronic data processing in all branches, including the judicial branch, would violate art. 30 of the Declaration of Rights. But "judicial participation on a voluntary basis in the sharing of data processing facilities and services" was not precluded, "provided that such participation does not involve internal functioning of the judicial branch." In March, 1976, a "Statement of Understanding" was agreed to by the board, the Committee on Probation, the Commissioner of Probation, and the Executive Secretary of this court in an effort to clarify "the voluntary and cooperative relationship between the Board and the judicial branch."

After this action was begun, the definition of CORI in G. L. c. 6, Section 167, was rewritten by St. 1977, c. 691, and Section 172 was amended to confer additional responsibilities on the board and the council with respect to the dissemination of CORI. [Note 3] The board then issued its Emergency

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Regulation 1.1 (c), excluding from CORI "court records indexed chronologically or by docket number where no defendant based or similar index is available to the public," and a new Regulation 1.85 permitting dissemination of CORI in the course of public criminal proceedings, "where such disclosure is limited to that necessary to carry on such proceedings effectively."

Finally, St. 1977, c. 841, added the following to G. L. c. 6, Section 172: "Notwithstanding the provisions of this section

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or chapter sixty-six A, the following shall be public records: ... (2) chronologically maintained court records of public judicial proceedings, provided that no alphabetical or similar index of criminal defendants is available to the public, directly or indirectly; .... " All the parties treat that provision as a clear legislative direction that the alphabetical index in issue in the present action not be made available to the public. They argue only the constitutionality of that provision, and we confine our consideration to the issues so argued.

2. Separation of powers. Article 30 of the Declaration of Rights is more explicit than the Federal Constitution in calling for the separation of the powers of the three branches of government, and we have insisted on scrupulous observance of its limitations. The essence of what cannot be tolerated is the creation of interference by one department with the power of another department. Opinion of the Justices, 365 Mass. 639, 640-642 (1974). See Opinion of the Justices, 375 Mass. 795, 813-814 (1978); Opinion of the Justices, 372 Mass. 833, 892-894 (1977).

Judicial proceedings are subject to the "general principle of publicity," but a number of statutes limit access to court proceedings and records, and judges may exercise discretion to impose reasonable cloture, including impoundment, in other cases. Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977). See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-599 (1978); Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 648-652 (1978); Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 479-481 (1978). Unless there is a violation of a constitutional guaranty, the Legislature may modify or abrogate common law practices under Part II, c. 6, art. 6, of the Massachusetts Constitution. Commonwealth v. Jackson, 369 Mass. 904, 920-923 (1976). Pinnick v. Cleary, 360 Mass. 1, 11-12 (1971). Examples of the legislation restricting access to judicial records are G. L. c. 94C, Section 34 (sealing of records of first offenders under the Controlled Substances

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Act); G. L. c. 210, Section 5C (sealing of adoption records); G. L. c. 221, Section 27A (destruction of obsolete records); G. L. c. 276, Sections 100A, 100B, 100C (sealing of certain probation files and corresponding court records).

Legislation restricting the use of judicial records by the judicial branch of government, so far as it interferes with the internal functioning of the judicial branch, may violate art. 30. See Opinion of the Justices, 365 Mass. 639, 647 (1974). A court must keep records in order to function. Legislation prohibiting the keeping of records would doubtless be unconstitutional. See Houston v. Williams, 13 Cal. 24, 28 (1859). When the volume of cases is substantial, indexing becomes essential, and the Legislature has recognized the need for alphabetical indices. E.g., G. L. c. 215, Section 37 (register of probate); G. L. c. 216, Section 11 (register of insolvency); G. L. c. 221, Section 23 (court clerks). Cf. Mass. R. Civ. P. 79 (b), 365 Mass. 839 (1974) ("suitable" indices of civil docket).

The present case, however, does not involve the internal functioning of the judicial branch. It is concerned instead with dissemination to persons outside the judicial branch. In other jurisdictions legislation regulating public access to court records has been upheld against attack based on the separation of powers. Sadler v. Oregon State Bar, 275 Or. 279, 295 (1976) (mandated disclosure of record of bar disciplinary proceeding). Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975) (expungement after successful defense of criminal charge). Cf. Johnson v. State, 336 So. 2d 93, 95 (Fla. 1976) (expungement statute limited in effect to sealing of record); Times-Call Publishing Co. v. Wingfield, 159 Colo. 172, 177 (1966) (restriction construed to be subject to judicial discretion). In Nixon v. Warner Communications, Inc., 435 U.S. 589, 602-608 (1978), the Court, on its own motion and without discussion of separation of powers, deferred to legislative and executive judgment in balancing the presumption in favor of public access to judicial records against their use "to gratify private spite or promote public scandal," quoting from In re Caswell, 18 R.I. 835, 836 (1893).

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There is no showing here that the denial of public access impairs the ability of the District Court to function. We have recognized "that the sealed records statute serves a useful rehabilitative purpose in providing a mechanism whereby the fact of a prior conviction is, in most instances, shielded from public view." Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 479 (1978). As will appear, the CORI Act serves similar purposes. If, apart from the denial of public access, the Act or the regulations of the board under it interfere impermissibly with the internal functioning of the court, that is not a matter of which the plaintiff can complain. There is no violation of the separation of powers affecting the plaintiff's rights.

Apart from the internal functioning of the courts, there may be inherent judicial power to regulate the dissemination of information about judicial proceedings. The present case shows no conflict between legislation or administrative regulation, on the one hand, and any judicial rule or order, on the other. We therefore do not consider further the scope or effect of such a judicial power.

3. Freedom of the press. We are not here concerned with an attempt to punish a newspaper for publishing information, or to restrain it from publishing information it has already acquired. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 839-842 (1978). Rather we consider how far a State is required to go in assisting the press or others to gather information. "The cases suggest that the State must afford `some protection for seeking out the news,' but the dimensions of the obligation are as yet unclear." Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 548 (1977), quoting from Branzburg v. Hayes, 408 U.S. 665, 681 (1972). "The First Amendment generally grants the press no right to information about a trial superior to that of the general public." Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978). See Houchins v. KQED, Inc., 438 U.S. 1, 7, 10 (1978); Estate of Hearst, 67 Cal. App. 3d 777, 785-786 (1977). In

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the Nixon case, tape recordings had been played for jurors and the public at a criminal trial, and transcripts had been furnished, but broadcasters were denied permission to copy, broadcast, and sell to the public the tapes in the custody of the court.

We need not enter the much disputed question to what extent judicial proceedings may be closed to press and public in the interest of fair trial. See Gannett Co. v. DePasquale, 43 N.Y.2d 370, 377 (1977), cert. granted, 435 U.S. 1006 (1978); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 499-504 (1978), appeal docketed, No. 78-155 (July 27, 1978); Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv. L. Rev. 1899 (1978). The conflict here is between the individual's interest in privacy and confidentiality and the public's access to records of past criminal proceedings. We are to decide whether the Legislature, in aid of the legislative design, could constitutionally limit public access to the alphabetical index.

The CORI Act is part of a program to establish data processing and data communication systems needed for the efficient administration and operation of criminal justice agencies, to connect such systems with similar systems in this or other States, and to resolve questions of individual privacy and system security in connection with the operation of those systems. See G. L. c. 6, Sections 168, 170. The Supreme Court has taken note of "the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files," including information required for "the enforcement of the criminal laws." The Court has indicated that "a concomitant statutory or regulatory duty to avoid unwarranted disclosures" is typical and in some circumstances "arguably has its roots in the Constitution" and may "evidence a proper concern with, and protection of, the individual's interest in privacy." Whalen v. Roe, 429 U.S. 589, 605 (1977). That concern may in our opinion properly extend to information stored

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manually as well as to computerized information. Cf. Eugene Cervi & Co. v. Russell, 184 Colo. 282, 286-287 (1974) (vital statistics sought for commercial purposes); McMullan v. Wohlgemuth, 453 Pa. 147, 162-166 (1973), appeal dismissed for want of a substantial Federal question, 415 U.S. 970 (1974) (names of recipients of public assistance).

The plaintiff contends that the purpose and practical effect of the denial of public access to the alphabetical index is to deny effective access to the records maintained chronologically, which the statute declares to be "public records." To some extent this is undoubtedly true, although the plaintiff concedes that there is "fairly easy public access to information concerning pending prosecutions through the docket books as well as through physical presence in the courtroom." The plaintiff concedes further that many of the records in question could constitutionally be impounded or sealed, but argues that, so long as they are public, access to them cannot properly be made difficult and expensive.

The defendants, joined by the Security and Privacy Council as a friend of the court, counter by referring to the statutory protection against "unreasonable, substantial or serious" invasions of privacy. G. L. c. 214, Section 1B. See Attorney Gen. v. School Comm. of Northampton, 375 Mass. 127, 129-132 (1978). The public interest in overseeing the integrity of the judicial process is clear while court proceedings are pending, they say, but the utility of the glare of publicity fades after the termination of the proceedings. See Briscoe v. Reader's Digest Ass'n, 4 Cal. 3d 529, 537 (1971). After their termination the interest of the individual in privacy weighs more heavily in the balance, particularly if he was not convicted. In cases of conviction that interest is reinforced by the public interest in rehabilitation. It is appropriate, the argument continues, that as the proceedings become less newsworthy they also become less accessible through the chronological records. Cf. G. L. c. 93, Section 52(a)(5) (stale criminal records in consumer reports); G. L. c. 233, Section 21 (impeachment

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of witness by stale criminal record). In cases where the public interest in dissemination clearly outweighs the interest in security and privacy, the CORI Act allows the information to be disseminated. G. L. c. 6, Section 172 (c).

It is clear enough that most court records do not aggregate information concerning the criminal history of an individual, and therefore do not threaten the privacy interests the Act seeks to protect. The alphabetical index, on the other hand, listing offenses charged and dispositions for each individual, provides aggregated information similar to that regulated by the Act. It is therefore appropriately subjected to limitation to reinforce the regulation of CORI. It has not been shown that the limitation in question exceeds permissible limits or invades any constitutional right of the plaintiff.

4. Disposition. The judgment of the Superior Court is reversed and the case remanded for the entry of judgment declaring that G. L. c. 6, Section 172, so far as it denies the plaintiff access to the alphabetical index records maintained by the defendants, is not unconstitutional either as a violation of the separation of powers required by art. 30 of the Declaration of Rights or as a violation of the freedom of the press under the First Amendment to the Constitution of the United States or under art. 16 of the Declaration of Rights.

So ordered.

ABRAMS, J. (concurring, with whom Quirico and Liacos, JJ., join). I concur in the decision by the court but suggest that this court consider further action on this matter. This court has not yet promulgated comprehensive rules concerning public access to court records of current proceedings. Cf. S.J.C. Rule 3:09, as amended, 375 Mass. 856 (1978), Rule Relative to the Disposal of Obsolete and Useless Papers and Records in Court.

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It has often been the policy of this court to defer to the Legislature in that sometimes overlapping and undefinable area of power that exists between the two branches of government. While I do not think we should now depart from our past "spirit of mutual cooperation," see O'Coin's, Inc. v. Treasurer of the Country of Worcester, 362 Mass. 507, 515 (1972), accord, State v. Clemente, 166 Conn. 501, 515 (1974); In re PA 267, 400 Mich 660, 664 (1977); see Note: The Judiciary and the Rule-Making Power, 23 S.C.L. Rev. 377, 394 (1971), I believe we should take action which would grant some measure of relief in this area.

In the absence of court rules, the Legislature has enacted legislation in aid of the judicial branch, but the fact that the Legislature has acted does not deprive the judicial branch of its power of decision in the area of judicial administration. See Collins v. Godfrey, 324 Mass. 574, 576 (1949). Accord, Opinion of the Justices, 375 Mass. 795, 813-814 (1978); O'Coin's, Inc. v. Treasurer of the County of Worcester, supra at 513; Opinion of the Justices, 279 Mass. 607, 611 (1932).

While I recognize the need for a spirit of cooperation, I think some additional comment should be made as to the arguments set forth by the defendants.

First, I think we should reject the argument of the defendant clerk that he has a right to collect information of a personal nature as a part of the alphabetical index which he maintains. [Note CONCUR-1] See G. L. c. 221, Section 23. In my view he has no such right. The information being collected by the clerk in this case is appropriately collected by the probation department and no other. See G. L. c. 276, Section 100. I would order the clerk to discontinue this practice forthwith. See also G. L. c. 6, Section 177.

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Second, I think we should reject the argument of the Attorney General appearing for the defendants, that the only power courts possess is "that necessary for their very existence." To the extent that this argument is addressed not to this court as a constitutional court and a coequal branch of government but to statutory courts, I assume that the Legislature has the power to abolish every court but this court. However, the Legislature having established statutory courts cannot then unduly interfere with the exercise of the judicial powers by the courts, a term far more encompassing than "mere existence." See O'Coin's, supra at 509, 510.

Alternatively, if the argument were addressed to this court's powers, I disagree with it. As one of the three equal branches of the government of this Commonwealth, this court, not the Legislature or the Executive, is accountable for the efficient and fair administration of justice. C. Grau, Judicial Rulemaking: Administration, Access and Accountability 11 (Am. Jud. Soc. [1978]). Thus the powers of this court are plenary with respect to the administration of justice. [Note CONCUR-2]

Third, greater access to information about the actions of public officers and institutions is increasingly recognized as an essential ingredient of public confidence in government. See Open Meeting Statutes: The Press Fights for the "Right to Know," 75 Harv. L. Rev. 1199, 1201 (1962). The Legislature has responded by enacting numerous provisions, including open meeting laws (G. L. c. 39, Sections 23A-23C; G. L. c. 30A, Sections 11A-11A 1/2; G. L. c. 34, Sections 9F-9G; see Ghiglione v. School Comm. of Southbridge, 376 Mass. 70 [1978]; Attorney Gen. v. School Comm. of Northampton, 375 Mass. 127 [1978]), to increase the public's

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access to governmental records (see G. L. c. 4, Section 7, Twenty-sixth; G. L. c. 66, Section 10; Attorney Gen. v. Collector of Lynn, ante 151, 152 [1979]; Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 817-818 [1978]; Cunningham v. Health Officer of Chelsea, 7 Mass. App. Ct. 861 [1979]) [Note CONCUR-3] and has required financial disclosure by public officials. G. L. c. 268B.

By contrast CORI enshrouds certain records of proceedings in the judicial branch in secrecy and darkness. The trial judge found that under that statute access to records of past proceedings is possible only by "searching hundreds of thousands of docket entries ... at tremendous time and expense." Obviously this difficulty is magnified in urban courts where the CORI requirement amounts to a virtual impoundment of records concerning all but the most recent cases.

The public primarily holds the judiciary, not the Executive or the Legislature, accountable for the administration of justice. C. Grau, supra. Since CORI impairs public access to court records and undermines confidence in the judiciary and in judicial integrity, we should consider the promulgation of rules permitting meaningful access to court records of pending cases. The CORI restrictions undercut the "general principle of publicity" with respect to judicial proceedings. See Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977), quoting from Commonwealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950).

I suggest consideration of the promulgation of a rule forthwith that the clerk of each court, at least as to all pending cases, shall keep, maintain, and make available for public use an alphabetical list of the names of the parties, which list shall contain a reference, by case number, book, and page, of the records of each such case. See G. L. c. 221, Section 23.

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With respect to the closed cases, I suggest that we invite comments on what type of rule of court may be necessary to ensure that persons having a rightful interest in the records of those cases may have reasonable access thereto.