Friday, April 1, 2011

SJC: Public Records Law Doesn't Override Judicial Protective Order

MEDFORD, MA - JANUARY 7:  Democratic Senate no...Image by Getty Images via @daylifeIn Commonwealth of Massachusetts v. Fremont Investment & Loan et al. (Case No. 10749), the Supreme Judicial Court of Massachusetts this week ruled that courts' traditional power to enter protective orders sealing documents is not overridden by the Commonwealth's public records law (M.G.L. c. 66, sec. 10).

In October 2007, Massachusetts Attorney General Martha Coakley sued Fremont under the Commonwealth's consumer protection law, alleging the mortgage company engaged in predatory lending practices that were unfair and deceptive (Com. v. Fremont Inv. & Loan, 452 Mass. 733 (2008)) Fremont paid a $10 million fine and costs, but during the litigation, the parties filed a joint protective order governing the exchange of purportedly confidential documents.

Samuel J. Lieberman  sought access to the more than 5.5 million pages of these sealed documents from the Attorney General's office via the public records law. Writing for the High Court, Justice Judith Cowin concluded that interpreting the public records law to negate a judicial order sealing documents "would raise serious constitutional doubts as to the validity of the statute." Issuing protective orders is an inherent judicial power essential to the function of the judicial department and the courts' ability to decide cases and cannot be trumped by the public records law, the SJC ruled.

Enhanced by Zemanta


  1. Would love to hear your thoughts on Justice Cowin's ruling, and whether it could/should be appealed to the Supreme Court. Thanks, as always.

  2. Justice Cowin in on the SJC; there is no higher Mass. court to appeal to and no basis to have the U.S. Supreme Court review this matter. I believe it was correctly decided. Every public records law has a series of exemptions. Public records laws are creatures of the legislative function--it would be a usurpation of the judicial function if such laws could overrule judicial orders sealing records. There are legitimate reasons to seal documents--proprietary information in business litigation;financial information in divorce proceedings; information about undercover officers in criminal cases; information about juvenile offenses, to name just a few. It would be untenable if anyone could submit an FOIA request and see this private data.It's not always as simple as just espousing "govt. transparency." Witness the FOIA requests for Emails of professors in public universities being used as a tool of political intimidation.