Commonwealth v. George W. Prescott Publ'g Co.

• Decision Date: 23 August 2012
• Docket Number: SJC–11062.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH & another v. GEORGE W. PRESCOTT PUBLISHING COMPANY, LLC, & another.

463 Mass. 258

973 N.E.2d 667

COMMONWEALTH & another ¹

v.GEORGE W. PRESCOTT PUBLISHING COMPANY, LLC, & another.²

SJC–11062.

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted Nov. 9, 2011.

Decided Aug. 23, 2012.

Andrew DiCarlo Berman, Special Assistant District Attorney, for the Commonwealth.

Peter F. Carr, II (Charlotte L. Bednar with him), Boston, for William O'Connell.

Michael J. Grygiel, of New York (Zachary C. Kleinsasser, Boston, with him) for George W. Prescott Publishing Company, LLC.

Peter J. Caruso, Andover, for Massachusetts Newspaper Publishers Association & others, amici curiae, submitted a brief.

Martha Coakley, Attorney General, & Argie K. Shapiro, Assistant Attorney General, for Attorney General, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

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 “reportsof 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.³

Background. The relevant facts are not in dispute. In March, 2011, the State police investigated allegations that O'Connell had engaged in sexual intercourse with a minor. On March 31, 2011, State Trooper Kathleen Prince obtained a warrant to search O'Connell's condominium unit in Quincy. Prince's affidavit in support of the warrant application included the minor complainant's name and other identifying information, and an extensive recitation of statements made to police by the complainant and others regarding O'Connell's alleged criminal conduct.

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, 442 Mass. 218, 222–223, 812 N.E.2d 887 (2004) (Republican Co.). After a hearing, the judge determined that good cause existed for continued impoundment, and denied Prescott's motion. The judge indicated also that he would, sua sponte, review the impoundment order on June 1, and that the Commonwealth would bear the burden of “re-applying” for impoundment at that time.

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. c. 272, § 53A; and trafficking in cocaine, G.L. c. 94C, § 32E ( b ) (criminal case). The Commonwealth filed a motion to impound the criminal complaint and related documents, which the judge allowed.⁴ Subsequently, Prescott moved to intervene in the criminal case for the limited purpose of terminating or modifyingthe impoundment order, the same relief it sought through the civil case.

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.⁵ By agreement of the Commonwealth and Prescott, the judge allowed Prescott to intervene in the criminal case for the purpose of contesting the impoundment order, and dismissed the civil case. ⁶ The Commonwealth stated that it had no objection to removing from impoundment the narrative portion of the criminal complaint against O'Connell. The judge indicated his intent to release both the narrative portion of the criminal complaint and a copy of the search warrant affidavit with the complainant's name and identifying information redacted. He expressed concern that O'Connell's attorney was not present to oppose release of a redacted affidavit, and scheduled a further hearing at which O'Connell would have an opportunity to object before any of the documents were released from impoundment. The judge also requested that the Commonwealth attempt to arrive at an agreement with O'Connell before the next hearing as to those portions of the search warrant affidavit that should be redacted.

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 public disclosure under G.L. c. 41, § 97D. O'Connell argued that he would be unfairly prejudiced by disclosure of the materials, in violation of his Sixth Amendment right to a fair trial, and that there was good cause for impoundment. Prescott argued in favor of lifting the order of impoundment, but expressed no objection to redacting the complainant's name and other identifying information from the affidavit. At the conclusion of the final hearing, the judge ruled that G.L. c. 41, § 97D, did not bar disclosure of the affidavit, that O'Connell and the Commonwealth had failed to demonstrate good cause for continued impoundment, and that a redacted version of the affidavit would therefore be released from impoundment.⁷ The judge stayed his order for one week so that the parties would have an opportunity to file a petition in the county court.

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.⁸

Discussion. Under our common law, judicial records are presumptively available to the public. Commonwealth v. Silva, 448 Mass. 701, 706–707, 864 N.E.2d 1 (2007). Republican Co., supra at 222, 812 N.E.2d 887. “[I]t is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). Materials filed with a court to support the issuance of a search warrant not only shed light on the functioning of law enforcement agencies, but also provide a means of understanding the court's decision to issue a warrant. Thus, we have repeatedly recognized that, when filed in court, search warrant materials are judicial records to which the public's presumptive right of access applies once the warrant has been returned. See, e.g., Republican Co., supra at 222–223, 812 N.E.2d 887;Newspapers of New England, Inc. v. Clerk–Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 631, 531 N.E.2d 1261 (1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989) (Newspapers of New England ).

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 “balanc[ing of] the rights of the...