Global Freedom of Expression

Commonwealth v. Pon

Closed Contracts Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    August 15, 2014
  • Outcome
    Declaratory Relief, Other
  • Case Number
    14 N.E.3d 182
  • Region & Country
    United States, North America
  • Judicial Body
    Appellate Court
  • Type of Law
    Civil Law, Constitutional Law
  • Themes
    Defamation / Reputation
  • Tags
    Anonymity, Discrimination

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Case Analysis

Case Summary and Outcome

The Supreme Judicial Court of Massachusetts held that 1) a criminal defendant no longer has to prove that the value of sealing his criminal record clearly outweighs the constitutionally-based value of the record’s remaining open to society; and 2) his records are subject to a presumption of public access to court records which can be restricted upon a showing of good cause.


In 2010, the Massachusetts legislature made reforms to the criminal offender record information (CORI) scheme. As part of this reform, the legislature extended CORI access to more employers, housing providers, and others. At the same time, the legislative reforms allowed more individuals to protect their criminal records from public view.

The defendant (Pon) was charged in 2007 for leaving the scene of property damage and for operating a motor vehicle while under the influence (OUI). Pon had admitted to the facts, which were sufficient for a guilty finding. “In September, 2008, a judge of the Boston Municipal Court Department ordered a continuance without a finding for one year with a rehabilitation program … involving probation and a recommended forty-five day suspension of his driver’s license.”  In October 2009, a judge dismissed the case following a recommendation by the probation department.

In November 2012, Pon filed a petition. In this petition, he requested that his record be sealed because of the record’s impact on his employment opportunities. “At a hearing on the petition, the commonwealth objected to the sealing of the case because, it contended, the employment consequences articulated by the defendant were attributable to earlier, more serious charges and not to the OUI charge at issue.” The judge denied both the petition and the defendant’s motion for reconsideration. The Supreme Judicial Court of Massachusetts granted Pon’s application for direct appellate review.

Decision Overview

Cordy, J., delivered the opinion of the Court. In this case, the Court considered “whether the [Boston Municipal Court] judge abused his discretion by denying the defendant’s petition to seal his criminal record is moot because the defendant has attained his desired relief through another process.” [p.299] Though the issue was no longer of importance to the current parties, the Court still considered the issue given that it is one of public importance, will likely arise again, and “has ‘general application to the work of the trial court’ and merit[ed] discussion by this court ‘in order to promote the proper administration of justice.’” [p.299]

After hearing both the Pon’s and the Commonwealth’s arguments, the Court unamiously decided to adopt a new substantive standard in order the achieve the legislature’s purpose in recent reforms, and to modify the procedure used when reviewing a petition for sealing. By deciding to adopt a new standard and to modify the procedure, the Court reversed its own precedent, which had been in place for nearly 20 years. Under the previous standard, a court was required to consider “whether ‘it is substantially probable that future opportunities are likely to be affected adversely by the existence of an arrest record’” (quoting US, Fed., Globe Newspaper Co. v. Pokaski, 868 F.2d 507 (1st Cir. 1989)).  The Court found that the previous standard no longer furthered the legislative intent.

In its decision to expand access to CORI records, the Court cited two important policy reasons. Namely, the Court expressed concern about the potential “negative impact of criminal records on the ability of former criminal defendants to reintegrate into society and obtain gainful employment, particularly in an age of rapid informational access through the Internet and other new technologies.” [p.297] The Court noted that the previous standards used when evaluating requests for discretionary sealing, as outlined in Commonwealth v. Doe, did not balance the competing interests of “the public’s right of access to criminal court records and the State’s compelling interest in providing privacy protections for former criminal defendants to enable them to participate fully in society.” [p.300]US, Mass., Commonwealth v. Doe, 648 N.E.2d 1255 (2014).

After considering a variety of past cases, the Court set a new standard: “[a] defendant must establish that good cause exists for sealing.” [p.312] The judge shall determine if this standard has been met by balancing the interests at stake, including the defendant’s privacy interest, governmental interests, and the common law presumption of access. The Court discussed relevant factors, but also noted that a judge is permitted to consider any information they deem relevant. Under this new standard, a common law presumption applies, rather than a First Amendment presumption. Once a court has ordered that a criminal’s record be sealed, this individual may answer questions about his or her criminal history by stating that he or she has “no record.” Likewise, when responding to inquiries, the probation department is required to report that “no record” exists for this individual.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

Here, the Court overturned its own long-standing precedent and set new standards that restricted access to public information. The Court also determined that the First Amendment presumption did not apply.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Globe Newspaper Co. v. Dist. Att’y, 788 N.E.2d 513 (2003)

    439 Mass. 374, 384 (judicial determination about if the sealing of a criminal record is warranted).

  • U.S., Commonwealth v. Doe, 648 N.E.2d 1255 (1995)

    420 Mass. 142, 149-152 (previously used standard for when evaluating requests for discretionary sealing).

  • U.S., Ott v. Bos. Edison Co., 602 N.E.2d 566 (Mass. 1992)

    413 Mass. 680, 680.

  • U.S., Blake v. Mass. Parole Bd., 341 N.E.2d 902 (1976)

    369 Mass. 701, 703.

  • U.S., Rzeznik v. Chief of Police, 373 N.E.2d 1128 (1978)

    374 Mass. 475, 479 (sealing of criminal record).

  • U.S., Wheatley v. Mass. Insurers Insolvency Fund, 925 N.E.2d 9 (2010)

    456 Mass. 594, 601 (determining meaning of standard “substantial justice would be served”).

  • U.S., Mass. Gen. Laws ch. 6, sec. 171A

    St. 2010, c. 256, sec. 19 (limiting when employers may ask about and require employees to share their criminal history).

  • U.S., Press-Enter. Co. v. Super. Ct., 478 U.S. 1 (1986)

    478 U.S. 1, 8 (“whether public access plays a significant positive role in the functioning of the particular process in question.”); 8-9 (“whether a First Amendment presumption of access applies”); 9 (impact of availability of records of criminal cases on fairness).

  • U.S., Cowley v. Pulsifer, 137 Mass. 392 (1884)

    37 Mass. 392, 395-396 (“certain papers filed in court not open to public inspection”).

  • U.S., State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094 (2004)

    101 Ohio St. 3d 382, 384-85 (“discussing Ohio balancing test”); 385 (public and press have a right of access to any court, until a request for sealing is granted).

  • U.S., Globe Newspaper Co. v. Fenton, 819 F. Supp. 89 (D. Mass. 1993)

    819 F. Supp. 89, 91, 100-101 (First Amendment presumptions and opportunities for public scrutiny).

  • U.S., Republican Co. v. App. Ct., 812 N.E.2d 887 (2004)

    442 Mass. 218, 222-223 (“certain court documents not subject to First Amendment presumption may be impounded on lesser showing than required where constitutional right implicated”).

  • U.S., Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978)

    435 U.S. 589, 597 (“courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents”).

  • U.S., Alaska, Johnson v. State, 50 P.3d 404 (2002)

    Quoting US, Alaska, Anchorage v. Anchorage Daily News, 794 P.2d 584, 590 (1990) (“In cases where there is no express exception to the state’s disclosure laws, we balance ‘the public interest in disclosure on the one hand, and the privacy and reputation interests of the affected individuals together with the government’s interest in confidentiality, on the other,'” and in cases involving criminal records, court “balance[s] the public’s right to know about an individual’s past crimes against the convicted individual’s right to privacy”).

  • U.S., State v. D.H.W., 686 So. 2d 1331 (1996)

    686 So. 2d 1331, 1336 (“policy of public access to old records must be weighed against the long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty”).

  • U.S., In re Kollman, 46 A.3d 1247 (2012)

    210 N.J. 557, 577 (“judges will balance … [articulated] factors as they decide whether expungement [akin to sealing] serves the public interest in a particular case” and will “weigh the risks and benefits to the public of allowing or barring expungement”).

  • U.S., Const. amend. I

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

As this case was decided the Supreme Court of Massachusetts, the lower courts in the commonwealth are bound by the decision.

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