Doe v. Board of Registration in Medicine

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12817

JOHN DOE vs. BOARD OF REGISTRATION IN MEDICINE.

Suffolk. February 11, 2020. - September 1, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

Board of Registration in Medicine. Doctor. Criminal

Records. Criminal Offender Record

Information. Administrative Law, Proceedings before

agency, Evidence.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on May 14, 2019.

The case was reported by Budd, J.

Michael David Tauer (Andrew L. Hyams also present) for the

petitioner.

Julie E. Green, Assistant Attorney General, for the

respondent.

Pauline Quirion & Christopher Westfall, for Greater Boston

Legal Services & another, amici curiae, submitted a brief.

LOWY, J. The petitioner, John Doe, is a physician licensed

by the board of registration in medicine (board). This case

requires us to determine what effect, if any, sealing a criminal

record under G. L. c. 276, § 100C, has on the board's statutory

2

obligations to discipline licensed physicians under G. L.

c. 112, § 5, including (1) whether the board may use a record

sealed under § 100C as the basis for discipline, and (2) if so,

to what extent the board may make that record's contents

available to the public. We conclude that the board may use

such a record in its disciplinary proceedings. We also

conclude, however, that where a record sealed under § 100C forms

the basis for the board's final disciplinary decision, the board

is statutorily prohibited from making the contents of that

record available to the public. However, should the board

possess independent evidence of the criminal case or the

criminal conduct underlying a record sealed under § 100C,

separate and distinct from the record itself, and that

independent evidence forms the basis for a final disciplinary

decision, the board is not prohibited from making such evidence

publicly available.

Background. 1. Facts. The relevant facts are undisputed.

On March 9, 2017, Doe was arrested and charged with a single

misdemeanor count of engaging in sexual conduct for a fee, in

violation of G. L. c. 272, § 52A. The following month, Doe

informed his employer of the misdemeanor charge. In June 2017,

Doe admitted to sufficient facts, and the court continued his

case without a finding. Approximately two months later, Doe

self-reported his arrest, charge, and disposition to the board,

3

and thereafter, the board notified Doe that he was under

investigation.

In September 2017, the court dismissed Doe's criminal case

following his completion of the court-imposed conditions. Two

days later, Doe filed an application to renew his medical

license, which was set to expire in November 2017. 1 As required,

Doe disclosed the criminal charge and its disposition in his

application and included a copy of the criminal docket and

police reports. See 243 Code Mass. Regs. § 2.04(10), (14)(b)

(2020).

In May 2018, as he cooperated with the board's

investigation, but without the board's knowledge, Doe petitioned

the Cambridge Division of the District Court Department to seal

his criminal case under § 100C. The following month, the

board's complaint committee recommended that the board issue a

statement of allegations,2 but also expressed interest in the

possibility of a consent order to eliminate the need for

adjudicatory proceedings, so long as the consent order met

certain requirements, including a reprimand. The board then

1 Physicians are required to renew their licenses every two

years based on the physician's birthday. See G. L. c. 112, § 2.

2 A statement of allegations is defined as "a paper served

by the [b]oard upon a licensee ordering the licensee to appear

before the [b]oard for an adjudicatory proceeding and show cause

why the licensee should not be disciplined." 243 Code Mass.

Regs. § 1.01(2) (2012).

4

sent Doe a draft consent order based on Doe's engagement in

"conduct that undermines the public confidence in the integrity

of the medical profession." See Raymond v. Board of

Registration in Med., 387 Mass. 708, 713 (1982); Levy v. Board

of Registration & Discipline in Med., 378 Mass. 519, 527-528

(1979). The draft consent order also included the information

contained in Doe's criminal record.

In July 2018, a judge in the District Court ordered Doe's

criminal record sealed under G. L. c. 276, § 100C,

and Commonwealth v. Pon, 469 Mass. 296, 316-319 (2014) (sealing

order). 3 Doe notified the board of the sealing order a couple of

weeks later and requested that the board close his disciplinary

matter without further action, contending that any further

action would violate the sealing order. The board declined

Doe's request. In April 2019, Doe requested that, if the board

elected to discipline him, it refrain from making that

discipline public until Doe had the opportunity to seek judicial

review of the question whether the board's use or disclosure of

the basis for the discipline violated the sealing order. On May

3, 2019, the board responded that it intended to hear the matter

later that month, and that it would "vote after listening and

3 In Pon, we enumerated several interests judges must

balance when considering whether to seal a criminal record

pursuant to G. L. c. 276, § 100C. See Commonwealth v. Pon, 469

Mass. 296, 316-319 (2014).

5

giving due consideration to both sides. Therefore, you should

take whatever action you feel is appropriate." 4 Doe filed an

emergency petition for writ of certiorari with a single justice

of the county court on May 14, 2019. The single justice, in

turn, reserved and reported the case to the full court.

2. Statutory background. This case requires us to analyze

the interplay between the board's statutory disciplinary

obligations, see G. L. c. 112, § 5, and the legislative mandate

to shield certain criminal records from public view pursuant to

both the sealing statutes, G. L. c. 276, §§ 100A-100C, and the

criminal offender record information act (CORI act), see G. L.

c. 6, §§ 167-178, which incorporates the sealing statutes. See

St. 2010, c. 256, §§ 3, 131, 132.

a. The sealing statutes. The sealing statutes, G. L.

c. 276, §§ 100A-100C, enacted in the early 1970s, govern the

procedure by which former criminal defendants may seek to seal

certain criminal records, as well as the effect of such sealing.

See G. L. c. 276, § 100A, inserted by St. 1971, c. 686; G. L.

c. 276, § 100B, inserted by St. 1972, c. 404; G. L. c. 276,

4 Although the board reevaluated its position shortly before

oral argument, agreeing not to disclose any sealed information

during the pendency of its disciplinary proceedings, as well as

for the ten days following its final determination, to provide

Doe with the opportunity to seek judicial review, the board's

prior position unfairly left Doe with no opportunity to appeal

before the board publicly disclosed the contents of his sealed

criminal record.

6

§ 100C, inserted by St. 1973, c. 322. The sealing statutes

sought to promote rehabilitation and reintegration by protecting

former criminal defendants "from unnecessary and overbroad

dissemination of criminal record information." Commonwealth

v. Vickey, 381 Mass. 762, 765 (1980). See Attorney Gen.

v. District Attorney for the Plymouth Dist., 484 Mass. 260, 270

(2020), quoting Pon, 469 Mass. at 307 ("[s]ealing is a central

means by which to alleviate the potential adverse consequences

in employment, volunteering, or other activities that can result

from the existence of such records").

Sections 100A and 100B provide for automatic sealing of

certain criminal records, upon request, after a requisite period

of time has passed without any additional criminal conduct. See

G. L. c. 276, §§ 100A (criminal court appearances and

dispositions), 100B (delinquency court appearances).5

5 Under G. L. c. 276, § 100A, the commissioner of probation

"shall comply" with an individual's request to seal his or her

criminal record so long as (1) the person's misdemeanor crime,

including any incarceration or custody, occurred at least three

years before the request; (2) the person's felony crime,

including any incarceration or custody, occurred at least seven

years before the request; (3) "the person had not been found

guilty of any criminal offense within the commonwealth in the

case of a misdemeanor, [three] years before the request, and in

the case of a felony, [seven years before request, except motor

vehicle offenses in which the penalty does not exceed a fine of

[fifty dollars];" (4) the petitioner asserts that he has not

been convicted in any other State, except motor vehicle

offenses, as stated above, and has not been imprisoned for a

misdemeanor, within the preceding three years, and for a felony,

within the preceding seven years; and (5) "the person's record

7

Section 100C, however, does not contain a temporal

requirement, but rather permits a former criminal defendant,

whose criminal case resulted in a nolle prosequi or a dismissal,

to seal his or her criminal record upon a judge's discretionary

determination that "substantial justice would best be served" by

such sealing. 6 See G. L. c. 276, § 100C. To meet that standard,

a defendant must establish that good cause exists for sealing

does not include convictions of offenses other than those to

which this section applies."

Under G. L. c. 276, § 100B, the commissioner of probation

"shall comply" with an individual's request to seal his or her

delinquency record so long as (1) any court appearance or

disposition within the record the individual requests to be

sealed occurred at least three years before the request;

(2) "that said person has not been adjudicated delinquent or

found guilty of any criminal offense within the commonwealth in

the three years preceding such request, except motor vehicle

offenses in which the penalty does not exceed a fine of fifty

dollars nor been imprisoned under sentence or committed as a

delinquent within the commonwealth within the preceding three

years;" and (3) the petitioner asserts that he has not been

adjudicated or convicted in any other State, except motor

vehicle offenses, as stated above, and "has not been imprisoned

under sentence or committed as a delinquent in any state or

county within the preceding three years."

6 Section 100C also governs criminal cases "wherein the

defendant has been found not guilty by the court or jury, or a

no bill has been returned by the grand jury, or a finding of no

probable cause has been made by the court." G. L. c. 276,

§ 100C. The statute requires those records to be automatically

sealed unless the defendant requests otherwise. See id.

8

his or her record, thus "overriding . . . the general principle

of publicity." Pon, 469 Mass. at 313. 7

Moreover, §§ 100A and 100C permit an employment applicant

with a sealed record pursuant to either statute to answer "'no

record' with respect to an inquiry [t]herein relative to prior

arrests or criminal court appearances." G. L. c. 276, §§ 100A,

100C. 8

b. The CORI act. 9 In 1972, the Legislature enacted the

CORI act to centralize both the collection and the dissemination

of criminal offender record information. See St. 1972, c. 805,

§ 1; Boston Globe Media Partners LLC v. Department of Criminal

Justice Info. Servs., 484 Mass. 279, 282 (2020) (Boston Globe).

Criminal offender record information is defined, in relevant

part, as "records and data in any communicable form compiled by

a Massachusetts criminal justice agency," concerning an

identifiable individual and relating to a criminal matter,

including an arrest, criminal charge, and pre- and posttrial

7 To determine whether the defendant has established good

cause, judges balance the interests at stake, taking into

account a myriad of factors. See Pon, 469 Mass. at 314-319

(discussing factors).

8 The Legislature amended this provision in 2018, as we

discuss infra. See St. 2018, c. 69, §§ 186-194.

9 For thorough discussions of the CORI act, see Boston Globe

Media Partners, LLC v. Department of Criminal Justice Info.

Servs., 484 Mass. 279, 282-286 (2020), and Pon, 469 Mass. at

303-308.

9

proceedings. G. L. c. 6, § 167. The CORI act established the

criminal history systems board, which later became the

Department of Criminal Justice Information Services (DCJIS), and

tasked it with overseeing the State's first unified criminal

offender record information management system. See St. 1972, c.

805, § 1; St. 2010, c. 256, §§ 1, 135. The CORI act also

strictly limited access to criminal offender record information

to only criminal justice agencies and other entities with

statutorily-authorized access. See Boston Globe, supra at 282,

citing St. 1972, c. 805, § 1.

In 2010, the Legislature amended the CORI act, creating a

tiered system of access based on the requestor's identity (2010

amendments). See Boston Globe, 484 Mass. at 285, citing

St. 2010, c. 256, § 21, and 803 Code Mass. Regs. § 2.05(2)

(2017); G. L. c. 6, § 172 (a). Notably here, the Legislature

incorporated the sealing statutes into the CORI act's statutory

scheme, thereby (1) excluding sealed records from certain

categories of criminal record offender information;

(2) specifying that only those entities entitled to the highest

level of access were permitted to access sealed records;

(3) shortening the waiting periods to seal a record under

§ 100A; and (4) expanding § 100C to permit judges to seal all

dismissed cases, even after an order of probation has been

terminated. See St. 2010, c. 256, §§ 3, 21; G. L.

10

c. 276, § 100A, as amended by St. 2010, c. 256, § 128; G. L.

c. 276, § 100C, as amended by St. 2010, c. 256, § 131. Overall,

although the 2010 amendments expanded access to certain

requestors, including employers and landlords, "for limited

use," they also "broaden[ed] the scope of the sealing provisions

to enable more individuals to shield their records from public

view." Pon, 469 Mass. at 297.

In 2018, the Legislature again amended the CORI act (2018

amendments), as well as the sealing statutes, in an effort to

enhance opportunities for individuals who had previously been

charged or sentenced as an adult in juvenile court. See

St. 2018, c. 69. The amendments further reduced waiting periods

to seal criminal records under § 100A and permitted professional

licensure applicants with records sealed under § 100C to answer

"no record" on their license applications. St. 2018, c. 69,

§§ 186, 187, 193, 194. In other words, after the 2018

amendments, physicians were no longer required to inform the

board of the existence of any criminal record sealed under

§ 100C on their license applications.

c. Board of registration in medicine. General Laws

c. 112, § 5, mandates the board to "promote the public health,

welfare, and safety" and "adopt rules and regulations governing

the practice of medicine," including licensing medical

professionals and any subsequent professional discipline. See

11

G. L. c. 13, § 10; 243 Code Mass. Regs. §§ 1.00 (2012), 2.00.

See also Kvitka v. Board of Registration in Med., 407 Mass. 140,

143, cert. denied, 498 U.S. 823 (1990). As such, the board has

the statutory authority to investigate complaints "relating to

the proper practice of medicine" and, upon a final

determination, to discipline physicians. G. L. c. 112, § 5.

See 243 Code Mass. Regs. §§ 1.03, 1.05. As part of its

disciplinary authority, the board must create physician

profiles, available to the public, which include in relevant

part "a description of any final board disciplinary actions."

G. L. c. 112, § 5.

Discussion.10, 11 1. Board's use of records sealed under

§ 100C in its disciplinary proceedings. As an initial matter,

10Although Doe submitted his license renewal application

and the court sealed Doe's criminal record prior to the 2018

amendments, see St. 2018, c. 69, §§ 186-194, we decide this case

under the current law because the 2018 amendments did not alter

the law in any manner that would affect our conclusion.

Moreover, "a declaration applying the current law is appropriate

because" the board has not yet determined whether to discipline

Doe, nor made his now-sealed criminal record publicly available;

thus, any such decision will would be governed by the law as it

exists under the 2018 amendments. Boston Globe, 484 Mass. at

287-288.

11We first conclude we have the authority to review Doe's

claims pursuant to our authority under G. L. c. 231A, § 1, and

G. L. c. 214, § 1, as Doe asserted in his first amended

emergency petition for relief. The board does not contest our

authority pursuant to those jurisdictional statutes. We need

not decide, therefore, whether we have authority to review this

case under G. L. c. 249, § 4, as Doe initially argued.

12

we conclude that the board is not entitled to access records

sealed under § 100C. 12 Nevertheless, the facts of this case

In addition, Doe urges us to determine whether his criminal

conduct provides a sufficient basis for discipline. However,

the board has not yet determined whether it will discipline Doe;

thus, the issue is not before us. While we recognize that the

board's draft consent order indicates that such discipline is a

distinct possibility, we will not preemptively deprive the board

of its statutory authority to determine under what circumstances

discipline is warranted. See G. L. c. 112, § 5; Langan v. Board

of Registration in Med., 477 Mass. 1023, 1025 (2017), quoting

Sugarman v. Board of Registration in Med., 422 Mass. 338, 342

(1996) ("board has broad authority to regulate the conduct of

the medical profession"). We, therefore, only consider whether

the board is permitted to proceed in its disciplinary

proceedings.

12The board argues that, pursuant to a certification issued

in 2002 designating it as a criminal justice agency (2002

certification), it is entitled to access and to use sealed

criminal records. See G. L. c. 276, § 100D. We disagree for

several reasons. First, under the CORI act, as amended by the

2010 amendments, it is clear that the board is a governmental

licensing agency, which is not entitled to access sealed

records, including those sealed under § 100C. See G. L. c. 6,

§ 172 (a) (3) (iv); 803 Code Mass. Regs. § 2.05(4); Currier v.

National Bd. of Med. Examiners, 462 Mass. 1, 4 (2012) (board is

"Commonwealth's licensing agency for physicians"). See also

G. L. c. 276, § 100C (prohibiting disclosure of existence of

records sealed to any entity other than law enforcement agency

or court). The principal function of the board's disciplinary

unit is to investigate complaints and to prosecute disciplinary

actions against its licensees; the board is not permitted to

impose criminal penalties. See G. L. c. 112, § 5; 243 Code

Mass. Regs. §§ 1.01(2), 1.05(2). Cf. G. L. c. 6, § 167

(defining criminal justice agencies, in relevant part, as

agencies whose principal function relates to crime prevention,

or apprehension or prosecution of criminal offenders).

Second, it would be illogical for the Legislature to permit

applicants to refrain from disclosing the existence of sealed

criminal records on their medical license applications, per the

2018 amendments, while simultaneously permitting the board to

access those same sealed records, without explicit statutory

13

demonstrate that there may be situations in which the board

obtains an unsealed criminal record, which is then sealed during

the pendency of the board's disciplinary investigation, and

which the board may wish to use as a basis for its final

disciplinary determination.13

2. Analysis of the sealing statutes. Each of the three

sealing statutes delineate the ways in which entities are

prohibited from using the records sealed under it. Both §§ 100A

authority to do so. See G. L. c. 276, § 100C, as amended by

St. 2018, c. 69, §§ 193, 194. Cf. G. L. c. 6, §§ 172 (a) (9),

(13), 172B, 172F (authorizing specific noncriminal justice

agencies access to sealed records).

Finally, even if the 2002 certification remained in effect,

it does not explicitly provide the board with access to sealed

records, as statutorily required at the time. See G. L. c. 6,

§ 172 (2001) (requiring criminal history systems board both to

certify agency as criminal justice agency and to specify "the

extent of [that agency's] access"). Rather, the 2002

certification granted the board's disciplinary division access

to criminal offender record information only "for any purpose

consistent with approved criminal justice duties and

responsibilities, including accessing police reports on

physicians and acupuncturists under investigation by your

agency."

13Although Doe sent his criminal record to the board, there

are other avenues through which the board may come to possess

such a record under § 100C. For example, under G. L. c. 221,

§ 26, in any case in which "a physician pleads nolo contendere

to charges or where sufficient facts of guilt were found and the

matter was continued without a finding," the clerk of the court

is required to inform the board within one week of such

dispositions, "together with a copy of the court proceedings in

the case."

14

and 100B provide, in relevant part, the nearly identical

language:

"Such sealed records shall not operate to disqualify a

person in any examination, appointment or application for

public service in the service of the commonwealth or of any

political subdivision thereof; nor shall such sealed

records be admissible in evidence or used in any way in any

court proceedings or hearings before any boards or

commissions, except in imposing sentence in subsequent

criminal proceedings" (emphasis added).

Although § 100C, like §§ 100A and 100B, prohibits its sealed

records from disqualifying an individual from public service,

§ 100C omits the language in §§ 100A and 100B that prohibits use

of sealed records in court proceedings or hearings before boards

or commissions. See G. L. c. 276, § 100C.

"Courts must follow the plain language of a statute when it

is unambiguous and when its application 'would not lead to an

"absurd result," or contravene the Legislature's clear

intent.'" Commonwealth v. Kelly, 470 Mass. 682, 689 (2015),

quoting Commissioner of Revenue v. Cargill, Inc., 429 Mass. 79,

82 (1999) (Cargill). "[W]e do not 'read into [a] statute a

provision which the Legislature did not see fit to put there,

whether the omission came from inadvertence or of set

purpose.'" Fernandes v. Attleboro Hous. Auth., 470 Mass. 117,

129 (2014), quoting General Elec. Co. v. Department of Envtl.

Protection, 429 Mass. 798, 803 (1999). "The omission of

particular language from a statute is deemed deliberate where

15

the Legislature included such omitted language in related or

similar statutes." Fernandes, supra.

The omission of the language prohibiting the board from

using records sealed under § 100C in its board proceedings makes

clear that the board may do so. See G. L. c. 276, §§ 100A,

100B, 100C. Had the Legislature intended to include such a

prohibition in § 100C, it "demonstrated that it knows how to do

so." Stearns v. Metropolitan Life Ins. Co., 481 Mass. 529, 536

(2019). The Legislature enacted § 100C after it enacted both

§§ 100A and 100B. See St. 1971, c. 686; St. 1972, c. 404;

St. 1973, c. 322. The Legislature amended § 100C four times

since it was originally enacted in 1973, including most recently

in 2018. The Legislature did not, however, add to § 100C the

statutory language that had been included in §§ 100A and 100B

since its enactment prohibiting the use of sealed records in

board proceedings. See G. L. c. 276, § 100A, as inserted by

St. 1971, c 686; G. L. c. 276, § 100C, as amended by St. 1983,

c. 312; St. 1984, c. 123; St. 2010, c. 256, §§ 131, 132;

St. 2018, c. 69, §§ 193, 194. It is not our place to amend a

statute's clear language to add language the Legislature chose

to omit. See Fernandes, 470 Mass. at 129; Cargill, 429 Mass. at

16

82. Therefore, we conclude that the board may use a record

sealed under § 100C in its disciplinary proceedings.14

3. Board's public disclosure of records sealed under

§ 100C. 15, 16 We next determine whether, upon a final

14

Doe argues that any board disciplinary action based on

his record sealed under § 100C would violate his equal

protection rights because, pursuant to the 2018 amendments, the

Legislature no longer requires professional license applicants

to disclose the existence of any such records on their license

applications. Thus, Doe argues, the 2018 amendments created two

classes of physicians with records sealed under § 100C:

(1) those who submitted their medical license applications prior

to the 2018 amendments, who were required to disclose such

sealed records; and (2) those who submit their medical license

applications after the 2018 amendments, who are not required to

do so. This argument is unavailing. Even if the 2018

amendments impermissibly created two classes of physicians, Doe

is not a member of the disadvantaged group; thus, he is not

entitled to relief. When Doe submitted his application to renew

his medical license, in which he properly disclosed his criminal

charge, he had not yet petitioned the court to seal his record.

Therefore, when he submitted his application, Doe did not even

possess a record sealed under § 100C.

15

Although we conclude that the board is not a criminal

justice agency, we note that to the extent it argued as much,

its designation as a criminal justice agency would preclude it

from publicly disclosing any criminal offender record

information it received in its capacity as such, including

records sealed under § 100C. Indeed, any disclosure of criminal

offender record information, other than in accordance with the

CORI act, subjects the offending entity to civil and criminal

penalties, as expressly stated by statute and by the 2002

certification. See G. L. c. 6, §§ 177, 178.

16

We recognize that this case comes to us before the board

has decided whether to discipline Doe; thus, whether the board

may make Doe's record sealed under § 100C publicly available is

not yet ripe. However, in the event the board decides to

discipline Doe based on his sealed criminal record, Doe would

undoubtedly appeal that decision. Thus, in the interest of

17

disciplinary decision, the board is statutorily permitted to

disclose the contents of a record sealed under § 100C as the

basis for such decision. To do so, we must harmonize the

board's statutory obligation to make publicly available

physician disciplinary information under G. L. c. 112, § 5, with

the confidentiality requirements under G. L. c. 276, § 100C.

Looking at the plain language of both statutes, as well as their

legislative histories, and that of the CORI act, see G. L. c. 6,

§§ 167-178, we conclude that while the board is permitted to

disclose evidence it obtained independent of a record sealed

under § 100C, the board may not publicly disclose the contents

of such a sealed record. 17

In 1996, the Legislature enacted "An Act providing for

increased public access to data concerning physicians"

(physician profile act), St. 1996, c. 307, in an effort to

increase public access to physician information, thereby

enabling people to "choose their own doctors." Donohue,

Developing Issues Under the Massachusetts "Physician Profile"

judicial efficacy, we exercise our discretion and address the

issue now.

17As the parties agree, records sealed under § 100C are

statutorily exempt from disclosure pursuant to the public

records law. See G. L. c. 4, § 7, Twenty-sixth (a) and (c);

Globe Newspaper Co. v. District Attorney for the Middle Dist.,

439 Mass. 374, 383 (2003) (CORI act operates as exception to

"public records" definition).

18

Act, 23 Am. J.L. and Med. 115, 115-116 (1997). The physician

profile act amended G. L. c. 112, § 5, to require the board to

create physician profiles, available to the public, which

include, in relevant part, "a description of any final board

disciplinary actions." See St. 1996, c. 307, § 5. Although

neither the statute nor the accompanying regulations require any

level of specificity, the board asserts that such public

disclosure is important to its "statutory mission of ensuring

that only qualified competent physicians of good moral character

are licensed to practice."

The sealing statutes, on the other hand, including § 100C,

prohibit any public access to such sealed records and prohibit

the commissioner of probation from disclosing the existence

thereof, except in response to inquiries from statutorily

permissible entities. See G. L. c. 276, §§ 100A-100C; Attorney

Gen., 484 Mass. at 270. See also Commonwealth v. Moe, 463 Mass.

370, 373 n.8 (2012), cert. denied 568 U.S. 1231 (2013),

quoting Commonwealth v. Boe, 456 Mass. 337, 338 n.2 (2010)

(records sealed under § 100C "become unavailable to the

public"; Police Comm'r of Boston v. Municipal Court of the

Dorchester Dist., 374 Mass. 640, 648 (1978) (sealing orders

require courts to "segregate [the sealed] records from the

generality of records and to ensure their confidentiality to the

extent specified in the controlling statute"). Section 100C "is

19

intended to enable such individuals to overcome the inherent

collateral consequences of a criminal record and achieve

meaningful employment opportunities." Pon, 469 Mass. at 297.

See Rzeznik v. Chief of Police of Southampton, 374 Mass. 475,

479 (1978) (purpose of sealing statutes to shield "fact of a

prior conviction" from public view). Thus, permitting the board

to make publicly available the existence of a record sealed

under § 100C would be inconsistent with the sealing statute's

clear purpose.18

The CORI act's plain language and legislative history

further support this conclusion. First and foremost, the CORI

act explicitly prohibits public dissemination of criminal

offender record information, 19 including sealed records. See

18Moreover, criminal records are sealed pursuant to § 100C

only upon a judge's determination that the former criminal

defendant sufficiently demonstrated that his privacy interest

outweighed the public's interest in access to his criminal

record. See Pon, 469 Mass. at 314-315. The record here

demonstrates that there was evidence of Doe's profession before

the sealing judge. We see no reason to permit the board to make

publicly available information that a judge has already

determined the public does not require. See id. at 301 (§ 100C

permits sealing of records "whose availability [do] not serve

criminal justice purposes").

19As stated, this prohibition only applies to criminal

offender record information that is "compiled by a Massachusetts

criminal justice agency." G. L. c. 6, § 167. See generally

Attorney Gen. v. District Attorney for the Plymouth Dist., 484

Mass. 260, 266 (2020) (CORI act permits general public to obtain

complete criminal history by going "to the clerk's office in

every court house, search[ing] for every case under the

individual's name, and review[ing] the court file").

20

St. 2010, c. 256, §§ 128-132; G. L. c. 6, §§ 177, 178. The

legislative history for both the 2010 and 2018 amendments, which

came after the Legislature enacted the physician profile act,

also demonstrates the Legislature's intent to limit access to

sealed criminal records and to reduce barriers for former

criminal defendants with such records.

Moreover, we already have concluded that the board is not

permitted to access sealed records, as it is neither a criminal

justice agency nor a separately statutorily entitled entity.

See G. L. c. 6, §§ 172 (a) (1), 177, 178; 803 Code Mass. Regs.

§ 2.05(2) (2020). Accordingly, it would defy logic to prohibit

entities who are, in fact, entitled to access sealed criminal

records from disseminating them, while also permitting the

board, which is not entitled to access such sealed records, to

make those records publicly available.

Our public disclosure prohibition, however, is confined to

the actual record sealed under § 100C. It does not extend to

independent evidence regarding or the conduct underlying Doe's

criminal case, which it obtains separate and distinct from Doe's

sealed record. See Moe, 463 Mass. at 373 n.8, quoting Boe, 456

Mass. at 338 n.2 (records sealed under § 100C "do not disappear;

they continue to exist but become unavailable to the public").

See generally Boston Globe, 484 Mass. at 290 ("the goal of the

CORI act is to limit the dissemination of someone's State-

21

compiled CORI report only to authorized recipients"). Such

independent evidence in this case includes Doe's self-report and

the statements Doe made during an interview with the board. 20

We do note, however, that because nothing in the statute

requires the board to publish the basis for its final

disciplinary decision, see G. L. c. 112, § 5, the board should

limit its description to that which is necessary to fulfill its

mission. Indeed, the board's executive director attested to the

fact that the board has discretion regarding the nature and

specificity of the information it discloses to the public.

Conclusion. In sum, § 100C does not prohibit the board

from using a record sealed under that section in its

disciplinary proceedings. Section 100C does prohibit the board

from publicly disclosing any information gleaned directly from a

record sealed under § 100C, but § 100C does not prohibit the

20 We recognize that this case presents somewhat unique

circumstances in that Doe self-reported his criminal conduct

prior to petitioning the court to seal his record. There may be

other situations wherein the board learns of a physician's

criminal conduct only after a court seals his or her criminal

record. The timing, however, does not affect the board's

ability to publicly disclose that physician's criminal conduct

underlying his or her criminal record as the basis for a final

disciplinary decision, so long as the board possessed relevant

evidence separate and distinct from the record sealed under

§ 100C.

Moreover, we need not, in a factual vacuum, define the

boundaries of what type of independent evidence the board would

be permitted to make publicly available.

22

board from publicly disclosing any independent evidence

regarding or the conduct underlying such a sealed record, which

it obtains separate and distinct from the record. This case is

hereby remanded to the single justice with directions to issue

an order consistent with this opinion.

So ordered.