Globe Newspaper Co. v. Pokaski
| Decision Date | 04 October 1988 |
| Docket Number | No. 88-1413,88-1413 |
| Citation | 868 F.2d 497 |
| Parties | 16 Media L. Rep. 1385 GLOBE NEWSPAPER COMPANY, et al., Plaintiffs, Appellees, v. Daniel F. POKASKI, etc., et al., Defendants, Appellants. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Judith Fabricant, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for defendants, appellants.
Holly A. Clarke on brief for Committee for Public Counsel Services, amicus curiae.
Jonathan M. Albano with whom E. Susan Garsh, Joanne D'Alcomo and Bingham, Dana & Gould, Boston, Mass., were on brief, for plaintiffs, appellees.
Before COFFIN and TORRUELLA, Circuit Judge, and TIMBERS, * Senior Circuit Judge.
Appellees, the Boston Globe and two of its reporters, were denied access to certain court records of completed criminal cases on the basis of Section 100C of the Massachusetts General Laws, chapter 276. That statute authorizes the sealing of court records of criminal cases in which a conviction has not been obtained. The Globe brought suit in federal district court, asserting that it has a constitutional right of access to the requested records, and that the Commonwealth's statutory scheme impermissibly burdens that right. The district court held that the Commonwealth may not rely on Sec. 100C to withhold records, 684 F.Supp. 1132. We now affirm in part and reverse in part.
On two occasions in 1987, Boston Globe reporters were denied access to the court records of various completed criminal cases. The first incident occurred when a Globe reporter requested the records of a criminal case involving a Boston police officer. The Globe sought the records "to investigate a report that the trial court judge initially had found the police officer guilty [of possession of cocaine], but had reversed his finding after being informed that a guilty verdict would cause the officer to lose his job."
The materials sought by the Globe--the case "records"--included a transcript and/or audiotape recording of the trial, the case file and docket sheet, and all other records relating to the trial. A case file, as best we can tell, 1 consists of any pleadings and documents filed in connection with the case.
It is undisputed that the Globe was denied access to this material. 2 The clerk's office informed the Globe that the records were under seal pursuant to Mass.Gen.Laws Ann. ch. 276, Sec. 100C and could not be released. 3 The Globe subsequently was informed by letter that sealed records could be obtained with court approval. The Globe has not initiated any proceeding, other than this litigation, to obtain access to the material.
The second incident stems from an investigation by the Globe's "spotlight team" into criminal cases initiated in Suffolk County in 1986 involving sexual offenses committed against juveniles. This time the Globe appears not to have requested transcripts and audiotapes of the proceedings, but only case files and detailed docket sheets. 4 The clerk's office provided the Globe with the 1986 docket books, which contain the detailed docket sheets of all closed criminal cases initiated in that year. Upon reviewing the books, the Globe discovered that substituted for numerous detailed docket sheets were sheets marked "sealed" containing no information other than a docket number. The Globe's subsequent request for the files and detailed docket sheets of these sealed cases was denied, even with information redacted to eliminate the defendant's name. Once again, the denial was based on Sec. 100C. The Globe was then advised that it should seek access to the redacted records in the equity session of the Superior Court. It declined to do so, and instead brought this action challenging the constitutionality of Sec. 100C.
The relevant portion of Sec. 100C is divided into two paragraphs. 5 The first paragraph directs court officers to seal the "records" of criminal cases in which a conviction has not been obtained for one of the following reasons: the defendant was found not guilty, the grand jury failed to indict, or the court made a finding of no probable cause. We note that this first paragraph provides for no court involvement; the sealing occurs automatically upon the completion of a criminal case ending in one of the above enumerated dispositions--regardless of the circumstances surrounding a particular case. The Committee for Public Counsel Services ("Amicus"), arguing in support of the statute, states that while cases are pending the records covered by both paragraphs are publicly available.
Although on its face the paragraph says nothing about the possibility of unsealing the records at some future time, the Commonwealth contends that access is not denied permanently but only delayed. It represents that the Globe may obtain access to sealed files by initiating a proceeding at which the defendant will bear the burden of justifying the records remaining under seal. 6 The Globe vigorously contests this reading of the statute, claiming that access is permanently foreclosed under paragraph one.
The second paragraph covers only those criminal cases in which there has been no prosecution or the court has entered a dismissal. In contrast to the first paragraph, however, the second paragraph authorizes the sealing of records at the close of the case only where the court finds that "substantial justice would best be served" by such action. Sealing, therefore, is apparently not automatic in cases ending with a nolle prosequi or a dismissal. "Substantial justice," however, is nowhere defined in the statute. The second paragraph, like the first, also says nothing about the possibility of obtaining access to sealed records at a later date.
The district court, although briefly noting the apparent differences between the two paragraphs, did not distinguish between them in holding Sec. 100C unconstitutional as applied to the records sought here. Relying on Supreme Court case law giving the press and public a constitutional right of access to criminal proceedings, and several circuit court decisions, including one from this circuit 7, extending that right to judicial documents, the district court began by finding that the records sought by the Globe implicate First Amendment concerns. The court believed that the public's interest in access was in no way diminished by the fact that the records sought here were of completed cases. To the contrary, it found that "[t]he argument for public access to court documents is particularly strong where, as here, the subject of press attention is the performance of the judicial system itself."
The court went on to hold that, even assuming the records may be obtained in the future, the statute places an impermissible burden on the public's right of access in that it requires those seeking information to initiate proceedings, thus reversing the constitutionally grounded "presumption of openness." In its view, Supreme Court precedent requiring open judicial proceedings absent particularized findings that closure is necessary to further a compelling governmental interest also requires that the requested records remain open absent such findings. Apparently assuming that the second paragraph does not require such findings prior to sealing, the district court found both paragraphs constitutionally deficient inasmuch as they authorize, regardless of the circumstances, the "automatic" sealing of records without any demonstrated need for such action.
The following issues are raised on this appeal:
First--Although both the Commonwealth and the Globe argue their positions on the assumption that blanket restrictions on access to records of closed criminal cases implicate the First Amendment, Amicus, the Committee for Public Counsel Services (charged by statute with responsibility for providing legal representation to indigent criminal defendants), challenges that assumption.
Second--The Commonwealth contends that, as to the records of cases ending in acquittal or a finding of no probable cause, the initial sealing at the close of the case serves the compelling state interest of preserving for defendants their only realistic opportunity to demonstrate the need for sealing. The Commonwealth further contends that the consequent burden on the press to initiate access proceedings is minimal because the defendant has the burden of demonstrating any continuing need for privacy. The Globe, questioning whether records may later be unsealed, in any event asserts that such a burden of seeking unsealing is too great, that privacy interests are not significantly furthered, that, in short, the presumption of access is reversed.
Third--The Commonwealth contends that even if blanket restrictions on records of cases ending in an acquittal or a finding of no probable cause are invalid, such a restriction is permissible with respect to cases in which a "no bill" 8 has been returned because there is no First Amendment right of access to grand jury proceedings, which traditionally have been conducted in secret. The Globe, in response, contends that because grand jury proceedings often are preceded by a public event, such as a press conference, the release of "no bill" records will not always undermine grand jury secrecy, and therefore, a blanket restriction on all such records is unconstitutional.
Fourth--The Commonwealth argues that the statute's second paragraph, which covers only cases dismissed or not prosecuted, is constitutional given its requirement that sealing occur only if a court finds such action in the interests of "substantial justice." The state does not suggest, as it does with no bill cases, that the records of such cases do not enjoy First Amendment protection. Rather, it contends that its courts will interpret the "substantial justice" requirement in accordance with Supreme Court...
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