Handling Partially Sealed Criminal Appeals: A View From The Clerk’s Office

By Paul Tuttle & Sean Connolly

The handling of some court records places the court clerk within a paradox. The clerk must “facilitate public access to court records that, by law or court rule, are available to the public and shall take steps to safeguard the security and confidentiality of court records that are not open to the public.” SJC Rule 3:12 Canon 3(a)(6). In most instances, whether a court record is available to the public is easy to discern. However, when laws and court rules restrict certain information within an otherwise publicly available record, the clerk must balance the competing interests of transparent court proceedings with protection of individual privacy.

The Massachusetts Appeals Court clerk’s office has set out to walk this tightrope in criminal appeals from convictions when one or more charges resulted in acquittal, finding of no probable cause, or no bill by a grand jury, and the Trial Court has sealed the related records. Based on G. L. c. 276, §100C, first par., and the Supreme Judicial Court’s decision in Commonwealth v. J.F., 491 Mass. 824 (2023), the Trial Court has established procedures for sealing records related to these charges prior to assembly of the record on appeal from the guilty charges. As a result, records of many criminal appeals, which would have been fully available to the public, now contain sealed information.

Appellate proceedings largely take place across the pages of the parties’ briefs and not at a public trial, so fully restricting access to the parties’ briefs and appendices would foreclose the public’s ability to observe, monitor and report on important criminal proceedings. Thus, instead of blanket sealing entire criminal appeals, the Appeals Court’s clerk’s office has followed the Supreme Judicial Court’s advice: “[w]ere there to be a case where some counts are sealed and some are not, we presume that redaction of information within the records would achieve the intended outcome.” Id. at 839 n.16.

Notice of record assembly and case entry. We expect that, contemporaneously with the notice of assembly, the Trial Court clerk will alert the Appeals Court clerk about one or more records sealed pursuant to G. L. c. 276, §100C. Upon receipt of the notice of assembly, the appeal will be entered on the Appeals Court docket as “partially impounded” and the first docket entry will note that one or more records are sealed pursuant to G.L. c. 276, §100C. Although the transcripts transmitted with the notice of assembly will not be marked impounded or sealed, the clerk’s office will not provide public access to the transcripts in these appeals.

Criminal Docketing Statement. The first document required of an appellant in a criminal case is a criminal docketing statement. Notwithstanding any directions on the form to the contrary, if one or more records are sealed pursuant to G. L. c. 276, §100C, the sealed charges should not be listed on the form. However, the appellant should note in the criminal docketing statement that sealed records exist. The docketing statement will be available for public inspection.

Briefing. As with all impounded or sealed information, the parties should “[w]herever possible . . . not disclose impounded material.” Mass. R. A. P. 16(m). If the parties are able to draft their brief without reference to the sealed records, the party can file their brief in the normal course, and the brief will be available for public inspection. However, there will be instances where the charges for which the defendant was acquitted are relevant to the defendant’s or the Commonwealth’s appellate arguments. Under those circumstances, the party must file two briefs: (1) an unredacted copy clearly marked as impounded; and (2) a redacted version in which all references to sealed portions of the record have been fully redacted clearly marked as “Public.” The latter version will be available for public inspection, while the former will be used by the Court to decide the appeal.

Record appendix. In appeals involving a record sealed pursuant to G. L. c. 276, §100C, the appellant must file a record appendix that is available to the public. That record appendix would include documents that do not refer to the sealed portion of the record, including any documents which have been redacted by the Trial Court clerk’s office, such as a redacted copy of the docket. If necessary, a party may file a second volume, clearly marked as impounded, which contains unredacted copies of records provided in the public appendix or other sealed records. The impounded appendix will not be available to the public; both the publicly available and the impounded volumes will be used by court to decide the appeal.

Conclusion

Cases subject to partial sealing under G. L. c. 276, §100C pose special challenges both for the clerk’s office and filers as the sealed information in many cases may permeate through otherwise publicly available court records. Following this guidance will result in protection of the defendant’s statutory rights while allowing continued public access to and scrutiny of criminal appellate proceedings. Likewise, it will greatly reduce the chances of counsel receiving a dreaded notice of rejection of their brief and appendix.

Paul Tuttle was appointed clerk of the Massachusetts Appeals Court in June 2024. He served as an assistant clerk during the preceding eleven years.

 Sean Connolly is an assistant clerk at the Massachusetts Appeals Court. He previously served the Appeals Court as a research attorney and prior to that as a law clerk.