Understanding Expungement Versus Sealing

The policy of the criminal offender record information (CORI) scheme is to provide the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns. The public presumptively has access to criminal records relating to criminal proceedings: blanket restriction on access to records of cases ending in acquittal, dismissal, nolle prosequi, or finding of no probable cause violates the First Amendment, even if access is not denied permanently.

However, importantly, individuals with criminal records can petition to either seal or expunge their conviction and non-conviction records subject to varying conditions and requirements. There is a significant difference between expunging a criminal record and sealing it: when a record is expunged, all traces of it vanish, and no indication is left behind that information has been removed, but in contrast, when records are sealed, they continue to exist but become unavailable to the public. 

Sealed records are still available to law enforcement, courts, and appointing authorities.

Sealed records are accessible in redacted form by law enforcement in order to conduct their daily duties. Courts can access sealed conviction records in subsequent criminal cases for purposes of sentencing, but not records from any case that did not result in a conviction (dismissal, probation, or a CWOF resulting in dismissal, acquittal, etc.).

The same rule applies to appointing authorities: such governing bodies like the Board of Probation can access sealed records resulting in convictions but not any other records. However, when records are expunged, they truly no longer exist and are thus almost completely unavailable by law enforcement, courts, appointing authorities, employers, members of the public, or anyone else.

The sealing and expungement statutory schemes are fairly complex. Records can be sealed either through an administrative process after a waiting period or by a judge without a waiting period, depending on whether or not the records relate to a case resulting in a conviction. The expungement process also has two paths: “time-based” expungement involving a waiting period or “reason-based” expungement, only available in extremely rare cases.

Numerous crimes are ineligible for sealing and/or expungement, and there are a myriad of standards that apply depending on whether records are being sealed or expunged and depending on whether such records relate to a case that resulted in a conviction or not.

Check out our additional articles exploring sealing and expungement in greater detail to learn more about these two important pathways to limit access to your prior criminal records and move on with your life without fear of such a record affecting your housing or employment prospects or coming back to bite you in a subsequent criminal case.

In combination with the protections under the sealing and expungement statutes, Massachusetts has other strong protections against employment discrimination based on prior criminal records. Massachusetts recently amended a “ban the box” provision which prohibits employers from asking about any kind of criminal record information on their initial written applications.

After the initial application, in an interview, employers may generally ask about any prior unsealed felony convictions. 

It is Illegal for Most Employers to Ask Questions At Any Stage of the Hiring About:

1. an arrest or criminal detention (e.g., being held at a police station) that did not end in a conviction; or
2. any criminal case filed against you in court that did not end in a conviction;
3. a first-time conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, disturbance of the peace; or
4. a conviction for a misdemeanor where the date of the conviction or your release from incarceration was 3 or more years ago; or
5. a juvenile record, except for cases where the juvenile is tried and convicted as an adult in an adult court rather than in the juvenile court); or
6. a sealed or expunged criminal record.

Additionally, it is illegal to ask applicants for jobs, housing, licensing, or volunteer opportunities to provide a copy of their own CORI record for the employer or other requestor. It is also illegal to ask an applicant for a job, housing, licensing, or volunteer opportunity, questions about a CORI report unless the interviewer gives the applicant a copy of the report BEFORE asking the questions.

Finally, it is illegal for employers, housing, licensing, or volunteer opportunity screeners to not provide applicants with a copy of the CORI or other background report they obtained if they rejected the applicants due to a criminal record.

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Learning about the process for clearing your prior criminal record and the differences between sealing and expungement is an important first step to putting such prior offenses behind you and moving on with your life. Your next step should be to contact experienced criminal defense attorney Nate Amendola—an expert on the Massachusetts sealing and expungement statutes—to help guide you through whichever process you choose within the complex sealing and expungement scheme and help make sure as few people as possible, if any, are able to access your prior records.

If you’ve been arrested on an OUI/DUI charge, domestic violence, disorderly conduct, or drug possession, you should speak to an experienced defense attorney as soon as possible. You can contact us online or call our office directly at 781-740-0800 to schedule your free consultation with one of our top-notch defense lawyers. We have been proudly servicing clients throughout Norwell, Massachusetts, and surrounding areas such as Plymouth, Barnstable, Nantucket, and more.