The plaintiff contends that because the sealed records statute, G. L. c. 276, Section 100A, is rehabilitative in nature, it should be read to prohibit the use of sealed criminal offender information for any purposes other than those specifically enumerated in the statute. The plaintiff argues that, since G. L. c. 276, Section 100A, does not specifically allow gun licensing authorities access to sealed criminal records, the use of this information by the chief of police in revoking the plaintiff's gun licenses was impermissible.
We agree with the plaintiff that the sealed records statute serves a useful rehabilitative purpose in providing a mechanism whereby the fact of a prior conviction is, in most instances, shielded from public view. [Note 2] On the basis of the statutory language and the legislative history of G. L. c. 276,
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Section 100A, however, we are unable to agree that the sealed records statute must operate to preclude the use of criminal offender information by gun licensing authorities.
General Laws c. 276, Section 100A, provides that the Commissioner of Probation, "in response to inquiries by authorized persons other than any law enforcement agency, any court, or any appointing authority, shall in the case of a sealed record . . . report that no record exists." [Note 3] This provision must be read to imply that law enforcement agencies, courts, and appointing authorities do have access to criminal records which have been sealed.
Such a reading is consistent with legislative history, which reveals that even the broadest versions of the proposed sealed records statute did not, as the plaintiff suggests, purport completely to erase the fact of a prior criminal conviction; rather, each version contained provisions requiring the Commissioner to report the fact of a sealed felony conviction to any inquiring police or court agency. See 1971 House Doc. No. 588; 1917 House Doc. No. 5362. See also 1971 House Doc. No. 5719; 1971 House Journal 2227-2228. Thus, the legislative history of Section 100A supports our conclusion that under the statute the defendant is clearly allowed access to and, by implication, use of information regarding a sealed criminal record.
Although the plaintiff urges us to hold otherwise, we further conclude that our reading of the sealed records statute is consistent with G. L. c. 6, Sections 167-178, the statutory scheme regulating the maintenance and dissemination of criminal offender information. General Laws c. 6, Section 172, inserted by St. 1972, c. 805, Section 1, provided [Note 4] that "[c]riminal
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offender record information shall be disseminated . . . only to (a) criminal justice agencies and (b) such other individuals and agencies as are authorized access to such records by statute."
The defendant falls into both of these categories. First, the defendant is part of a "criminal justice agency" as defined in the statute. G. L. c. 6, Section 167. Second, as was shown above, the defendant chief of police, as a member of a law enforcement agency, is "authorized access to such records by" G. L. c. 276, Section 100A. [Note 5] The Criminal History Systems Board itself recognized this authority when it advised in its January, 1975, memorandum that "the criminal justice agency would be entitled to the information in [a] sealed record pursuant to . . . an application [for a gun license]." Thus, we conclude that, even under the broad regulatory provisions of the Criminal Offender Record Information System, the defendant would have been able to receive information regarding the plaintiff's prior criminal record and to use this information in determining the plaintiff's eligibility for a gun license. [Note 6]
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2. In characterizing as slanderous the defendant's publication of the fact of the prior felony convictions, the plaintiff concedes that truth is an absolute defense. Bander v. Metropolitan Life Ins. Co., 313 Mass. 337 , 342 (1943). Comerford v. Meier, 302 Mass. 398 , 402 (1939). Foss v. Hildreth, 10 Allen 76 , 79 (1865). He argues, however, that where the record of a conviction has been sealed under G. L. c. 276, Section 100A, the fact of the conviction essentially is erased, so that the conviction is no longer a fact for any purposes other than those enumerated in the statute. Additionally, the plaintiff argues that, even if the statements were true, the defendant could not prove truth as an affirmative defense, because G. L. c. 276, Section 100A, provides: "[N]or shall such sealed records be admissible in evidence or used in any way in any court proceedings . . . except in imposing sentence . . . ."
We do not agree with the plaintiff's reasoning. First, the sealed records statute does not operate to erase the fact of a prior conviction (compare G. L. c. 6, Sections 167, 171, providing for the "purging" or expungement of criminal offender information so that "there is no trace of information removed and no indication that said information was removed." G. L. c. 6, Section 167); it seeks simply to ensure confidentiality. The information is in fact maintained (see G. L. c. 6, Sections 167-178) and is accessible to law enforcement agencies, courts, and appointing authorities under G. L. c. 276, Section 100A. There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.
Second, the plaintiff himself stipulated to the fact of his two prior felony convictions in a statement of agreed facts which was filed with the trial court on January 21, 1977. He confirmed his agreement to these facts during the trial. Therefore, we do not reach the question whether the above quoted passage from G. L. c. 276, Section 100A, applies to exclude evidence of sealed convictions, nor do we address any constitutional problems inherent in a claim that the sealed
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records statute purports to deprive an individual of an otherwise valid defense to a charge of defamation. The plaintiff waived any objections to admitting evidence of prior convictions by agreeing to those facts. Cf. Wheelock v. Henshaw, 19 Pick. 341 (1837).
