Tag Archives: CORI

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)**

Understanding and Sealing Criminal Offense Record Information (CORI)

By on February 16, 2015

Massachusetts circulates criminal record information through a report known as a “CORI” (Criminal Offense Record Information). This report lists all criminal charges filed against an individual. A CORI will include all offenses, whether they ultimately result in a conviction or non-conviction, and are accessible by potential employers, landlords, and the public, to varying degrees, until the individual takes steps to seal their CORI. Within the last several years, the Commonwealth enacted the CORI Reform Act, which has changed who may access a CORI, what levels of access is available the person or entity requesting the CORI, and how records are sealed.

Impact of CORI Records Which Have Not Been Sealed

Under the new CORI standards, all employers, housing providers, professional licensing authorities, and volunteer organizations may generally access a CORI for (1) criminal charges which are pending, (2) felony and misdemeanor convictions which are too recent to have “timed out” and may not be administratively sealed, (3) convictions which have not been sealed, even if they are eligible for sealing, and (4) convictions for murder, manslaughter, or certain sex offenses, unless they have previously been sealed. Employers, volunteer organizations, and local government agencies who work with “vulnerable populations,” such as children, elderly, or disabled, have access to all pending offenses, convictions, and non-convictions, with the exception of any sealed records. Furthermore, general members of the public are free to request CORI access and may access (1) convictions for murder, manslaughter, or certain sex offenses, unless they have previously been sealed, (2) misdemeanor convictions that were disposed of less than one year prior to the request, (3) felony convictions that were disposed of less than two prior to the request, and (4) felony convictions for crimes punishable by five or more years in prison, which were disposed of less than ten years prior to the request.

What Does All This Mean for You

By taking steps to seal your CORI, you may prohibit an employer, housing provider, or other organization from gaining access to sealed criminal record information. Criminal charges will only be removed from your CORI once they are eligible and are sealed. Completing the sealing process is an effective step to take in order to secure both employment and housing. If you are eligible to completely seal your record, you gain the additional benefit of being able to answer “no record” when applying for jobs or housing.
How to Seal Your CORI

Even after the CORI Reform Act was enacted, it is still the individual’s duty to actively seal charges from their CORI. Charges may be removed from your CORI by obtaining either an administrative sealing through the Office of the Commissioner of Probation or a discretionary sealing from the Trial Court which originally prosecuted each offense. The availability of either option depends on the circumstances of how, and when, each criminal offense was ultimately terminated.

Misdemeanors vs. Felonies

In Massachusetts, misdemeanors are generally classified as a crime punishable by up to two and one half (2 ½) years in county jail or a house of correction or a fine up to $1,000, or both. The statute governing each misdemeanor provides the exact sentencing information for the crime. Crimes not classified as a felony, under the relevant statute, are considered to be a misdemeanor.

Felonies are generally categorized as a crime punishable by death or by incarceration in a state prison. At this time, Massachusetts does not have a death penalty, so the highest penalty for a felony conviction is life in prison, without the possibility of parole. The statute governing each felony will also provide sentencing information for that crime.

Applying to Administratively Seal Convictions and Non-convictions

Administrative sealings are performed in accordance with the terms of G.L. c. 276, § 100A and may be used to seal both convictions and non-convictions which are considered to have “timed out” under the statute. A criminal charge has “timed out” once the required wait period has passed. The wait period for sealing starts at the time of entry of the final disposition for the offense or at the time of release from incarceration. In order to qualify for an administrative sealing, felony charges must have been disposed of at least ten years prior to the date of application to seal. Misdemeanor charges must have been disposed of at least five years prior to the application to seal. Applications to administratively seal are submitted to the Office of the Commissioner of Probation and will be granted so long as all statutory requirements are met.

Applying to Discretionarily Seal Non-convictions Which Have Not “Timed Out”

Discretionary sealings are available pursuant to G.L. c. 276, § 100C and may be used to seal non-convictions prior to the five or ten year wait period. Section 100C permits the Court to seal a criminal charge, which resulted in a non-conviction, as early as the time the disposition is entered or at any point thereafter. Sealing criminal charges under this section is more time consuming and complicated than an administrative sealing, at it requires filing a motion and arguing to the Trail Court why you deserve to have charges removed from your CORI. However, it provides the benefit of removing non-convictions from your CORI without having to wait years for those charges to time out. This process is particularly beneficial for individuals who would otherwise have not have an accessible CORI and are attempting to volunteer or work with a “vulnerable population” (see discussion above).

Section 100C authorizes sealing a non-conviction where “substantial justice would best be served” by sealing the criminal charge. However, this standard is not defined by the statute. As a result, the Supreme Judicial Court of Massachusetts provided interpretative analysis of this phrase and has set the standards for when CORI records may be discretionarily sealed. Recently, the Supreme Judicial Court altered the requirements for granting discretionary sealings by lowering the standard a petitioning individual must meet.

Under the new standard for discretionary sealings, substantial justice is served once it is demonstrated that you have a “good cause” for the Court to seal your non-convictions. The Court will balance the public’s general right to access public records, in order to hold the government accountable, against your interest, and the government’s, in keeping information private. In weighing these factors, the Court is free to consider any relevant information presented and is encouraged to consider a variety of factors including any disadvantages associated with the availability of your CORI, evidence of rehabilitation, the amount of time passed since the offense was committed, and the nature/reasons for the disposition.

The process of obtaining a discretionary sealing varies substantially from that of the administrative sealing. In order to seal non-convictions before the charges “time out,” you will be required to petition the Court, in person, to seal all eligible charges. In order to present the best possible argument to the Court, it is advised that you file a written motion, and supporting affidavit and exhibits, with the Court prior to your hearing date. The motion and affidavit are used to demonstrate the burden the CORI has imposed on you and argue why you meet the standards for sealing. Whether or not you decide to file a motion and affidavit with the Court, it is required that you appear for a hearing, after notice is given to the public, to allow the Court to determine if the charges should be sealed. Filing for a sealing and appearing before the Court is the only way to seal non-convictions prior to passage of the five or ten year wait periods.

Results of Sealing Charges from Your CORI

By taking steps to seal criminal charges from appearing on your CORI, you gain the advantage of prohibiting others from accessing portions, or possibly all, of your record. Given the accessibility of criminal record information, employers and housing providers in the Commonwealth regularly conduct a CORI check prior to offering a position or housing to an individual. Additionally, it has become increasingly popular for general members of the public to search for criminal information about others they commonly interact with, such as co-workers, neighbors, babysitters, or for social/dating purposes.

The above information is meant to provide a general summary of the CORI Act and the process of sealing criminal records. Because each case presents a different set of facts, the process and outcome of attempting to seal CORI records will vary depending on the circumstances. If you are uncertain about anything in 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.