April 15, 2011

Protective order trumps public records access rights

In Commonwealth v. Fremont Investment & Loan, the Supreme Judicial Court of Massachusetts upheld a trial court's determination that the Massachusetts public records law, G. L. c. 66, sec. 10, does not render ineffective a trial court's protective order. In so doing, the SJC concluded that "the public records law does not abrogate judicial protective orders."

At issue were 5.5 million documents that Fremont had produced in an enforcement action brought against it by the Commonwealth, which alleged unfair and deceptive practices in Fremont's  mortgage lending business. Fremont had designated those documents as confidential  pursuant to a protective order entered by the trial judge in that case, which was settled with the entry of a consent decree in 2009.

Samuel J. Lieberman sought access to those documents under the state public records law, for use in connection with a potential class action case against Fremont. The Attorney General refused to produce documents designated by Fremont as confidential.

Lieberman argued that because the documents did not fall within one of the exemptions stated in the records law, they must be produced notwithstanding the trial court's protective order. 

In rejecting his argument, the SJC acknowledged that while the subject documents might not be exempt from access under the records law, Lieberman's "conclusion that the records must therefore be disclosed is based on the mistaken premise that all documents in the hands of public officials must, absent an applicable exception, be made public notwithstanding a court order prohibiting their circulation. We do not agree that the public records law was intended to extend this far."

The SJC noted that the records action judge had not addressed all questions at issue in the case , such as "whether the order should be modified for other reasons, or whether certain documents designated confidential by Fremont are not validly protected by the order." 

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