COMMONWEALTH v. A.B. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A.B. appeals from a District Court judge's order denying his (1) motion to enforce an order sealing a dismissed criminal case, in which A.B. was the defendant; and (2) petition for contempt. Because A.B. has not made a threshold showing that the sealing order was violated, we affirm. We also reject his claims of error in the clerk of the District Court's assembly of the record.

Background. In July 2023, the police department in a Massachusetts town responded to a 911 call alleging criminal acts by A.B. Finding probable cause, the police arrested A.B. that night and filed a criminal complaint the next day. The case was ultimately dismissed for failure to prosecute after it became apparent that the alleged victim would not testify. Thereafter, in November 2023, A.B. successfully petitioned to seal the record of the proceedings pursuant to G. L. c. 276, § 100C, second par. (§ 100C or sealing statute).

After the case was sealed, A.B. accused the town police department of fabricating the charge. In February 2024, two officers interviewed A.B. regarding his allegations. In preparation for the interview, one officer reviewed the related arrest report and recorded 911 call. The same officer also wrote an investigative report documenting the interview, a copy of which was later produced to A.B. in response to his public records request.

Believing the officer's review of the arrest report and inclusion of certain information in the interview report violated the sealing statute, A.B. moved to enforce the sealing order and sought to have several police officers held in contempt for violation of the order. In a margin order, the judge denied the motion, noting that the “case is sealed.” A.B. now seeks review of that order.

Consistent with Mass. R. A. P. 9, as appearing in 481 Mass. 1615 (2019), the clerk of the District Court assembled the record. Included in the assembly of the record transmitted to this court is the docket from A.B.’s sealed case. A.B. contends that this inclusion is a further violation of the sealing statute and asks that we “correct the record.”

Discussion. 1. Motion to enforce sealing order. A.B. first argues that the judge abused his discretion in denying the motion to enforce the sealing order without first holding an evidentiary hearing. We are not persuaded.

Although A.B. cites no authority establishing when a hearing may be required on a motion to enforce a sealing order, we are guided by the numerous circumstances -- including a motion to seal records in the first instance -- in which a judge is not required to hold a hearing unless the moving party has made at least a threshold showing. See Commonwealth v. Pon, 469 Mass. 296, 322 (2014). Cf. Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004) (judge need not hold hearing on motion for new trial raising no substantial issue). We see no reason to deviate from this principle in the present circumstances. We therefore review for whether the judge abused his discretion. See Pon, supra at 322 n.39.

Here, A.B.’s motion did not set out a colorable claim that the sealing order was violated. A.B. misunderstands the effect of the sealing statute. It does not, as he argues, render all records relating to the criminal case “nonexistent.” To the contrary, records sealed under § 100C “do not disappear; they continue to exist but become unavailable to the public” (quotation and citations omitted). Doe v. Board of Registration in Med., 485 Mass. 554, 565 (2020). A.B.’s motion did not assert that any sealed records were made available to the public; those individuals who he claimed accessed his records -- members of the town police department ¹ and himself ² -- are permitted to do so. The police are authorized to access such records under G. L. c. 276, § 100D. See Pon, 469 Mass. at 318 n.31 (“law enforcement have automatic access to sealed and unsealed records”). And a defendant may access his own sealed records. See Gravito v. Commonwealth, 496 Mass. 756 (2025).

A.B. further misunderstands the extent of the records that are sealed under the sealing statute. Section 100C requires the sealing by both the clerk of the court and the commissioner of probation of “records of the proceedings in their files.” See Gravito, 496 Mass. 756, 756-757 (referring to § 100C as requiring sealing of “court records”). Such records are not coextensive with “criminal offender record information” (CORI) as defined in G. L. c. 6, § 167, which includes more broadly “records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge [or] an arrest.” Thus, while the records sealed under § 100C “fall[ ] within the definition of [CORI],” § 100C does not include all CORI. Gravito, supra at 764.

Section 100C does not require the sealing of all records relating to or giving rise to the charges. Arrest records need not be sealed under § 100C, nor do records of a follow-up interview which references the alleged conduct and investigation. See Doe, 485 Mass. at 565 (disclosure prohibition of § 100C “does not extend to independent evidence regarding or the conduct underlying [the] criminal case”); Commonwealth v. Robinson, 39 Mass. App. Ct. 355, 356 (1995) (even after records sealed under § 100C, “raw data continues to be available to law enforcement officials [police, probation officers, and courts]”). To the extent that A.B. argues that the sealing order was being violated because the police department continues to keep arrest and investigatory reports relating to the charges, maintaining and referring to such records does not violate the sealing statute because they are not “records of the proceedings.” See G. L. c. 276, § 100C. See also Police Comm'r of Boston v. Municipal Court of Dorchester Dist., 374 Mass. 640, 653 (1978) (records maintained and disseminated by law enforcement agencies not covered by sealing statute).

Thus, A.B. did not make a threshold showing either that anyone not permitted to access his sealed records had done so or that any accessed record was subject to the sealing order. Where no threshold showing was made, the judge was within his discretion to deny A.B.’s motion without a hearing.

Nor has A.B. shown that the judge violated his due process rights. A.B. was not deprived of any property or liberty interest, nor does he cite any authority indicating that he was due more process than he received. See Hudson v. Commissioner of Correction, 46 Mass. App. Ct. 538, 542 (1999), S.C., 431 Mass. 1 (2000) (appellant's due process claim failed “for the simple reason that he received all process due him”).

2. Appellate record. A.B. next argues that the District Court clerk violated § 100C by including the sealed docket in the assembly of the record.³ Not so. The clerk was required to do so by Mass. R. A. P. 9 (e) (2) (D), and A.B. makes no argument that that rule is inconsistent with the statute. See generally Commonwealth v. Morse, 50 Mass. App. Ct. 582, 584 n.3 (2000) (appellate court “entitled to access to [document from underlying criminal proceeding] by virtue of the provisions of the criminal offender record information system”).⁴ Furthermore, consistent with Mass. R. A. P. 9 (c), the clerk provided notice that the record contained sealed records, and they remain inaccessible to the public on appeal. Thus, because the clerk's inclusion of, and our access to, the sealed docket was entirely appropriate and did not violate the sealing statute, there is no need for the record to be corrected.

Finally, A.B. argues that his due process rights were violated because the clerk of the District Court did not include in the assembly of record A.B.’s motion to enforce the sealing order. However, in Mass. R. A. P. 18, as appearing in 481 Mass. 1637 (2019), “parties are cautioned that, under Rule 9, the lower court does not ordinarily transmit the entire record to the appellate court.” It is the parties’ duty to “include in the appendix all portions of the record that are relied upon in the brief or that relate to an issue on appeal.” Mass. R. A. P. 18 (a) (1) (D), as appearing in 491 Mass. 1603 (2023). A.B. did exactly that here by including his denied motion in his record appendix. His claim that the clerk's non-inclusion contributed to a deprivation of due process is without merit.⁵

Order denying motion to enforce sealing order and petition for contempt affirmed.

FOOTNOTES

1.   A.B.’s motion initially asserted that two unidentified individuals discussed the underlying case with him. However, the motion later asserted that three police officers -- the two who interviewed him and one who later sent him the interview report-- are the ones that violated the sealing order. He does not claim that the unidentified individuals described in the motion are anyone other than the two police officers named on the interview report.

2.   Although A.B. argues that he never specifically requested the interview report, he acknowledges that it was produced to him in response to a public records request that he submitted. Whether he asked for any specific record is immaterial where he is permitted to access the record in any event.

3.   He also asserts without argument that this inclusion contravened Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019) (record on appeal), and Mass. R. A. P. 18, as appearing in 481 Mass. 1637 (2019) (appendix to brief). However, he does not explain, and we do not see, how either rule is implicated by the clerk's assembly of the record pursuant to Mass. R. A. P. 9.

4.   See also G. L. c. 276, § 100D (“criminal justice agencies ․ shall have immediate access to, and be permitted to use as necessary ․ any sealed criminal offender record information”); Kordis v. Superintendent, Souza Baranowski Correctional Ctr., 58 Mass. App. Ct. 902, 903 (2003) (inmate “properly concedes that ․ the court [is a] ‘criminal justice agenc[y]’ within the meaning of the statute”).

5.   A.B. raises multiple arguments for the first time in his reply brief, including those relating to the strength of the allegations against him, purported First Amendment violations, and police access to his telephone number. We need not address these arguments as they are waived. See Commonwealth v. Stewart, 460 Mass. 817, 831 (2011) (arguments raised for first time in reply brief waived). A.B. has also moved for confirmation that an employee of this court, who as a former assistant district attorney assertedly had a role in A.B.’s case, has had no involvement in this appeal. The employee has had no such involvement.