New Bedford Standard-Times Pub. Co. v. Clerk of Third Dist. Court of Bristol, STANDARD-TIMES

• Decision Date: 05 March 1979
• Docket Number: STANDARD-TIMES
• Citation: 387 N.E.2d 110,377 Mass. 404
• Parties: , 4 Media L. Rep. 2393 . 1 Supreme Judicial Court of Massachusetts, Bristol
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 110

387 N.E.2d 110

377 Mass. 404, 4 Media L. Rep. 2393

NEW BEDFORD STANDARD-TIMES PUBLISHING COMPANY v. CLERK OF the THIRD DISTRICT COURT OF BRISTOL et al.¹

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 9, 1978.

Decided March 5, 1979.

Jonathan Brant, Asst. Atty. Gen., for the presiding justice of the Third District Court of Bristol.

David A. McLaughlin, New Bedford, for the clerk of the Third District Court of Bristol.

William H. Carey, Boston, for plaintiff.

James C. Heigham, Boston, for Massachusetts Newspaper Publishers Ass'n, amicus curiae, submitted a brief.

Judith Karp Wallis, Boston, for Security and Privacy Council, amicus curiae, submitted a brief.

Raymond J. Kenney, Jr., Boston, for the Massachusetts Bar Ass'n, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

BRAUCHER, Justice.

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, § 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 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, §§ 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 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, § 167.

1. The statutes. The CORI Act, G.L. c. 6, §§ 167-178, was originally enacted by St.1972, c. 805, § 1. CORI was defined in § 167 in terms of data compiled by "criminal justice agencies," also a defined term. ² The Act created a 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 Op.Atty.Gen. No. 23, November 30, 1973.

Related statutes include G.L. c. 66, § 10, providing for public access to "public records," defined in G.L. c. 4, § 7, Twenty-sixth. Those provisions do not apply to court records. Ottaway Newspapers, Inc. v. Appeals Court, --- Mass. ---, ---, ^A 362 N.E.2d 1189 (1977). In addition, the Fair Information Practices Act, G.L. c. 66A, was enacted by St.1975, c. 776, § 1. It places certain responsibilities on a "holder" maintaining "personal data." "Holder" is defined in terms of an "(a)gency," and "agency" is limited to "the executive branch of the government." G.L. c. 66A, § 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 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, 309 N.E.2d 476 (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, § 167, was rewritten by St.1977, c. 691, and § 172 was amended to confer additional responsibilities on the board and the council with respect to the dissemination of CORI. ³ The board then issued its Emergency 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, § 172: "Notwithstanding the provisions of this section 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, 309 N.E.2d 476 (1974). See Opinion of the Justices, --- Mass. ---, --- - ---, ^B 376 N.E.2d 810 (1978); Opinion of the Justices, --- Mass. ---, --- - ---, ^C 363 N.E.2d 652 (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, --- Mass. ---, --- - ---, ^D 362 N.E.2d 1189 (1977). See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., --- Mass. ---, --- - ---, ^E 374 N.E.2d 272 (1978); Rzeznik v. Chief of Police of Southampton, --- Mass. ---, --- - ---, ^F 373 N.E.2d 1128 (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, ...