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Massachusetts Case Reveals Judges Are Above Public Records Laws

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Massachusetts Case Reveals Judges Are Above Public Records Laws

public court recordsA few years ago (May 2009), Samuel Lieberman filed a public court records request to access business records collected as part of an investigation concerning mortgage lender Fremont Investment & Loan.

The lender was investigated to determine if they engaged in “unfair and deceptive practices.” However, Lieberman’s request was denied due to a court-issued protective order.

Normally, the documents Lieberman requested would be disclosed to him because they were given to the Attorney General’s office “as required by law.”

Under Massachusetts law, there are 16 exemptions from disclosure, one being that documents presented to the Attorney General’s office voluntarily may be exempt from the state’s public access law.

In this case, the reluctantly released records were placed under a protective order by the judge. This order allowed 5.5 million pages to be classified as confidential.




Lieberman sued to challenge the protective order and eventually lost his legal battle. Essentially, the courts held that it is a fundamental power of the judiciary to issue such a protective order.

The court went on to state that if the public access law could negate that power, then it “would raise serious constitutional questions about the validity of th[e] law.” Furthermore, the court declared that the legislature did not “endeavor to effect such a significant change to a longstanding and fundamental power of the judiciary.”

Overall, Massachusetts does not have the best track record when it comes to public access to public court records.

According to the Sunshine Review, several studies has proved that the law is less than adequate.

A 2008 study, conducted by the Better Government Association and sponsored by Alper Services, ranked Massachusetts #20 in the nation with an overall percentage of 54.30%. They also cite a 2007 study conducted by BGA and the NFOIC, which gave Massachusetts 31 points out of a possible 100, a letter grade of “F”, and a ranking of 43 out of the 50 states.

Finally, a study from 2002, conducted by IRE and BGA, ranked the Massachusetts’s law as the 35th worst in the country in terms of public access, giving it a letter grade of “D+”.

In a 2010 Boston.com article concerning Massachusetts Public Records law, Lucy Dalglish, Executive Director of The Reporters Committee for Freedom of the Press, states “I would put Massachusetts at the bottom of all states when it comes to open records law.”

Even though, the Legislature is hinting about some possible changes, the outlook for those changes does not look good. There are a total of 16 different exemptions to Massachusetts Public Records Law, and now it seems this list of exemptions regarding public court records can be extended by the whims of a court Judge.

Originally published on TopSecretWriters.com

  • SamLieberman

    Nice article. As Mr. Lieberman himself, I strenuously agree with your point. The Court glosses over that all statutes and regulations re court orders requires compliance with statutes like the public records law. Courts are not empowered to violate the Public Records law, but this decisions tries to find room to do just that.

    It also ignores that the “confidentiality order” at issue was just something the parties agreed to in order to cloak ALL documents from public view. The Court never made any finding that any document deserved confidentiality.

  • Anonymous

    Mr. Lieberman – thanks for taking the time to comment. It’s a fascinating legal case and a scary precedent set by the courts in that final decision. I have a great deal of respect for anyone fighting against situations like this where blanket confidentiality is enacted.

“The thing about the truth is, not a lot of people can handle it.” -Conor McGregor

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