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Recent Changes in the Discretionary Sealing Process for CORI Records

By on March 30, 2015

The Supreme Judicial Court of Massachusetts (SJC) has recently changed the process for obtaining a discretionary sealing to remove criminal charges from a CORI record. As such, it is no longer necessary for a petitioning individual to overcome society’s First Amendment interest in accessing court records.

CORI Basics

Criminal Offense Record Information, known colloquially as a “CORI,” lists all criminal charges filed against an individual. These charges, whether they ultimately result in a conviction or non-conviction, are accessible until they are sealed by either the Office of the Commissioner of Probation or a court. Sealing charges which are “timed-out,” meaning they meet the required waiting period, may be administratively sealed by the Commissioner of Probation. Otherwise, non-convictions may be discretionarily sealed by the court under the terms set forth in Massachusetts General Laws c. 276, § 100C. The language of § 100C permits the court to seal a non-conviction as early as the time of the disposition or at any point thereafter.

Discretionary sealings are permitted in situations where “substantial justice would best be served.” However, this standard is not defined by the language in § 100C. As a result, the SJC has interpreted this phrase and set the standards for when CORI records may be discretionarily sealed. Until a few months ago, this standard required the petitioning individual to overcome society’s First Amendment right of access and only permitted sealing under “exceptional” circumstances. However, in August 2014, the SJC redressed the topic and changed the standard to one of common-law presumption of public access.

Previous Standard for Sealing Non-convictions

Almost twenty years ago, the SJC held that discretionary sealings could only be granted if a judge ruled that, in the interests of “substantial justice,” the value of sealing for the individual “clearly outweighed the constitutionally-based value of the record remaining open to society.” Commonwealth v. Doe, 420 Mass. 142 (1995). Based on the language of § 100C, the SJC created a balancing test between the privacy interest of the individual and the public’s First Amendment right of access. CORI reports were only to be sealed if the individual could specifically show that sealing their record was necessary to accomplish a compelling government interest. Such a showing required presenting the court with specific instances of harm, definitively caused by the existence of the CORI, which had previously occurred and were ongoing. The SJC explained that sealings under § 100C were allowed only in “exceptional cases,” as the criminal file would have already been made public and society had a strong constitutional right to access judicial records.

Under these standards, it was generally necessary to put forth an argument showing specific harm suffered by the individual, such as denial for specific employment positions or housing opportunities. Arguing that the CORI would likely or generally result in denial of employment or housing was commonly held to be insufficient to warrant sealing. Furthermore, the petitioning individual had to prove their remaining privacy interests had not been irreparably damaged and, without their CORI as a barrier, they would otherwise be employable or qualified for housing. This standard set a high bar for individuals to overcome and often resulted in petitions for discretionary sealings being denied by the court.

New Standard for Sealing Non-convictions

In August of 2014, the SJC revised the standards for discretionary sealings. The test from Comm. v. Doe was disregarded by the Court as it “impos[ed] too high a burden of proof on the defendant and articulat[ed] unhelpful factors for the defendant to determine how to meet his or her burden.” Commonwealth v. Pon, 469 Mass. 296 (2014). The Court held that the previous-stated strict-scrutiny constitutional analysis was improper as there is only a common-law presumption of public access implicated in accessing criminal records.

Under the new sealing standard, substantial justice is served once an individual puts forth an argument demonstrating “good cause” to seal qualified non-convictions from their CORI. This new standard requires analysis of similar factors to those considered under the First Amendment analysis in Comm. v. Doe, but weighs such factors differently and lessens the burden on the individual to a certain extent. A court will balance the interests at stake and then determine whether the petitioning individual has shown good cause. The balancing test conducted by the court weighs the public’s general right to access public records, in order to hold the government accountable, against the interests of the petitioning individual and the government in keeping certain information private. In Comm. v. Pon the Court recognized that there is a “compelling government interest in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.” In weighing these factors, the court is free to consider any relevant information presented. However, it is stressed that the court at least consider all disadvantages associated with the availability of the CORI, evidence of rehabilitation or that sealing the CORI would remove the identified disadvantages, circumstances suggesting the likelihood of recidivism or success, the amount of time passed since the offense was committed and resulted in a non-conviction, and the nature/reasons for the disposition.

Additionally, Comm. v. Pon simplified the actual process of seeking a discretionary sealing. Under the previous standard there was a two-stage hearing process to seal records under § 100C. An initial appearance by the petitioning individual was used to make a prima facie argument for sealing the record. If the individual succeeded at the initial stage, then a second, more extensive hearing was held to determine if the record should be sealed. As a result of Comm. v. Pon the two-stage hearing process has been eliminated. The Court held that, given the lower standard for sealing, the initial hearing may be eliminated in favor of judicial economy. As such, only one hearing is now needed to discretionarily seal non-convictions from a CORI.

The above information is meant to provide a summary of the recent changes in the interpretation and application of the CORI laws. Because each case presents a different set of facts, the process and outcome of petitioning for a discretionary sealing will vary depending on the circumstances. If you are uncertain about anything regarding the process of sealing your criminal record, you should contact an attorney to ensure the necessary steps are taken to achieve the best possible outcome and that you are prepared for court.

**For an explanation of general CORI information and the general process of sealing a criminal record, see Understanding and Sealing Criminal Offense Record Information (CORI)**

Jennifer Lynn
Ms. Lynn is an associate of the firm. Her practice focuses primarily on construction litigation and landlord-tenant litigation, commercial disputes, and consumer rights.
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