(concurring, with whom Ireland and Co win, JJ., join). I concur with the result reached by the court, as I agree that this defendant should have been allowed to put before the *194jury the treatment records pertaining to the complaining witness’s tendency to fantasize. I write separately, however, to point out the ways in which this case illustrates the shortcomings of the procedures announced in Commonwealth v. Bishop, 416 Mass. 169 (1993), shortcomings that were exacerbated to the point of questionable constitutionality by this court’s modification of those procedures three years later in Commonwealth v. Fuller, 423 Mass. 216 (1996). In my view, this system governing access to records is both unduly cumbersome and constitutionally flawed.
The promulgation of the detailed protocol in Bishop amounted to rule making, undertaken without input from any segment of the criminal justice system or the public that would be affected by those new rules.1 Not surprisingly, those rules, while well intentioned in theory, have proved burdensome and unworkable in practice. To prosecutors, defense counsel, defendants, complaining witnesses, health care providers, and trial judges, the Bishop procedures have engendered untold amounts of *195confusion, frustration, inconsistency, busywork, and delay.2 The practical shortcomings of these procedures for dealing with privileged records are well known to all who have had to try to use them.
At stake in these determinations is the correct resolution of two highly compelling but inherently conflicting interests — the complaining witness’s desire to keep intensely personal treatment records confidential (and in particular to keep them from the person who perpetrated the sexual assault in the first place) versus the defendant’s right to prepare and mount a defense (and in particular to uncover any inconsistent statements of or information about the complaining witness that would tend to show that the allegation of sexual assault is unreliable). The Legislature has accorded a privilege to many types of records *196that are often sought in prosecutions for sexual assault,3 but the legislative creation of such privileges cannot trump a defendant’s constitutional right to a fair trial. See Commonwealth v. Bishop, supra at 177, 182-183; Commonwealth v. Stockhammer, 409 Mass. 867, 883 (1991); Commonwealth v. Two Juveniles, 397 Mass. 261, 266-267 (1986). No matter how compelling the justification for the privilege, if honoring that privilege has the effect of depriving the defendant of his constitutional right to a fair trial, we must give higher priority to that constitutional right, not to the legislatively created privilege.4 In any given case, determining whether the defendant’s right to a fair trial will be denied by upholding the complaining witness’s asserted privilege is a determination that requires an exceptionally difficult balancing of these diametrically opposed but compelling interests.
Bishop operates on the mistaken assumption that the correct resolution of such a difficult question will be assisted by processing it through a convoluted maze of procedural steps, each step having its own particular technical requirements.5 The problem with such an approach is that, rather than improving the fairness and accuracy of the ultimate decision, the busywork of Bishop tends to trivialize the important interests at stake. Unnecessarily cumbersome procedures result in frustration and impatience, not in clarity of thought. I am unconvinced that the application of Bishop procedures have, in their practical effect, done anything to enhance the ability of trial judges to decide *197these motions for access to privileged materials correctly and fairly.
Far more troublesome than the mere practical burdens of Bishop is that these procedures ultimately fail to protect a defendant’s right to a fair trial. The present case, which passed through the Stage Two of Bishop eight months prior to this court’s decision in Commonwealth v. Fuller, supra, provides a disturbing illustration of how Bishop and Fuller will now operate to deprive defendants of access to exculpatory records and, ultimately, of their right to a fair trial. The Appeals Court and this court have both determined that the exclusion of the treatment records of the complaining witness in this case, which chronicled his difficulties distinguishing fantasy from reality, deprived this defendant of his right to a fair trial. Commonwealth v. Sheehan, 48 Mass. App. Ct. 916 (2000). However, had Fuller already been the law, this defendant’s Stage Two affidavit would not have met the requirement that he demonstrate “a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence that is relevant and material to the issue of the defendant’s guilt,” material evidence being defined in this context as evidence that “tends to create a reasonable doubt that might not otherwise exist.”6 Commonwealth v. Fuller, supra at 226. In other words, records *198that appellate courts have unanimously assessed as necessary to the defense would not, under the Fuller case, have even been summoned for in camera inspection. The irony of today’s decision — ordering a new trial because the judge excluded treatment records that, under current law, the defendant would never be allowed to see — is disturbing.
This case, coming just on the cusp of Fuller, offers us a concrete example of how these procedures, as modified by Fuller, provide inadequate protection to a defendant’s right to a fair trial. It is always difficult, and often impossible, to demonstrate what important exculpatory evidence is in documents that one has not seen. Here, the defendant was able to show us, from the records themselves, precisely how the information in those records was critical to his defense. Now, in the Fuller era, almost all such claims will be cut off at Stage Two, and we will never know what important exculpatory evidence went undiscovered because of a defendant’s inability to demonstrate the significance of something he had not been allowed to see.* *****7
Here, the defendant was the uncle of the complaining witness. Despite that relationship, a relationship that gave the defendant *199at least some background knowledge of the complaining witness and his family, the defendant was unable to craft a Stage Two affidavit that would even come close to meeting the stringent Fuller test (see note 6, supra). He obtained the exculpatory records on which we rely today only through the fortuity that his affidavit was reviewed some months prior to this court’s Fuller decision. A defendant who is a stranger to the complaining witness, or who has only a passing acquaintance with the complaining witness, will never be able to meet the Fuller test. That this defendant, despite the family relationship, could not do so demonstrates how nearly impossible a test it is to meet. This illustration, drawn from the case before us and not from any abstract or extreme hypothetical, should give us pause.
The numerous pragmatic burdens of the Bishop procedures would perhaps be tolerable if, in the final analysis, they led to an appropriate balancing of the competing interests at stake.8 However, despite the inordinate burdens of Bishop, we will still be unable to say with confidence that a defendant who has been denied access to privileged records has had a fair trial. These burdens are being imposed on the Trial Court, counsel, defendants, complaining witnesses, and health care providers for naught. In my view, Bishop is a failed experiment.9 Fuller has solved some of the pragmatic burdens of Bishop by the simple expedient of making it almost impossible for any defendant to satisfy Stage Two, but the high price to be paid for that solution — depriving an unknown number of defendants of their right to a fair trial — is unacceptable.
It is beyond the scope of this concurring opinion to recommend particular remedies to the many shortcomings of Bishop *200and Fuller or to devise specific alternative procedures to substitute for Bishop.10 I am convinced, however, that we can do better than we have done. I therefore concur in the result reached today, but hope that this court will soon have an appropriate opportunity to reconsider its adherence to these burdensome and constitutionally flawed procedures.
Neither the Commonwealth nor the defendant in Commonwealth v. Bishop, 416 Mass. 169 (1993), requested the court to overrule or revisit the very different protocol that had been adopted just two years earlier in Commonwealth v. Stockhammer, 409 Mass. 867 (1991), and made retroactive to all cases then pending on direct appeal by Commonwealth v. Figueroa, 413 Mass. 193 (1992), S.C., 422 Mass. 72 (1996). Indeed, based on Commonwealth v. Figueroa, supra, the Commonwealth acknowledged that the defendant was entitled to a remand for purposes of conducting the inspection of records to which he was entitled under Commonwealth v. Stockhammer, supra. There were no amicus briefs filed in Commonwealth v. Bishop, supra, and the court did not ask for amicus briefs in the case or otherwise announce that it was considering any substantive revision of its recent decisions in Commonwealth v. Stockhammer, supra, and Commonwealth v. Figueroa, supra. Thus, the procedural rules adopted in Commonwealth v. Bishop, supra, were crafted not only without input from the sources that normally assist this court with the promulgation of rules, but without any input from either of the parties or from any amici curiae.
Due to victims’ concerns about the divulging of sensitive and confidential information in their treatment records, the Commonwealth did ask the court to make more emphatic its earlier suggestion that defense counsel be made subject to a protective order to prevent further disclosure of such information following defense counsel’s review of those records (see Commonwealth v. Figueroa, supra at 203; Commonwealth v. Stockhammer, supra at 883), and supplied the court with a proposed model protective order to be used in connection with any inspection of privileged records under Commonwealth v. Stockhammer, supra.
The procedural history of the Bishop issues in this case offers one illustration of the confusion that still persists years after the adoption of the Bishop process. See Commonwealth v. Bishop, supra at 181.-183.
As to busywork, given the stringent requirements that must be met to have the records in question summoned for in camera inspection under Commonwealth v. Fuller, 423 Mass. 216, 226 (1996), the remaining Bishop stages now appear to be of little (if any) utility. As required by Commonwealth v. Fuller, supra, records cannot now be summoned for in camera inspection unless the defendant has shown “a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence which is relevant and material to the issue of the defendant’s guilt,” and that that evidence is not available elsewhere. In this context, the term “material” requires that the evidence from the records must “tendQ to create a reasonable doubt that might not otherwise exist.” Id. at 227. Presumably, judges then examining records in camera will not release anything to defense counsel that does not also meet this same “more stringent” standard. Id. Yet, under the remaining stages and requirements of Bishop, counsel may not even share with the defendant this exculpatory evidence, that is not available elsewhere, absent a further written motion and a written memorandum and order from the judge. Commonwealth v. Bishop, supra at 182-183, 189. Defense counsel then needs to file yet another motion, and obtain yet another court order, before this exculpatory material, unavailable from any other source, may be introduced at trial. Id. at 183, 189. How, given the exculpatory (and unique) nature of the material released, could counsel adequately represent a defendant without sharing this material with the client and introducing it at trial? Put another way, why should busy trial judges, where one judge has already decided that the records contain exculpatory evidence that “tends to create a reasonable doubt that might not otherwise exist,” be required to spend time reviewing additional motions and writing up decisions that state, as they must, that a defendant may see and use that exculpatory evidence?
See, e.g., G. L. c. 233, § 20B (psychotherapist-patient privilege); G. L. c. 233, § 20J (sexual assault counsellor privilege); G. L. c. 233, § 20K (domestic violence victims’ counsellor privilege); G. L. c. 112, § 129A (psychologist-patient privilege); G. L. c. 112, § 135A (social worker-client privilege).
I agree with the concurring opinions of Justice Greaney and Justice Spina that these privileges are of immense importance to victims and witnesses and that there are “significant social consequences” to any overriding of such privileges. Ante at 193 (Spina, J., concurring). To say that a defendant’s right to a fair trial is of greater weight merely recognizes, as it must, the paramount importance of that constitutional right. It does not, in any sense, belittle the compelling justification that underlies these privileges.
In most cases, each step also has its own judge. Because so many trial court judges have rotating assignments in a circuit system, each of the successive steps necessary to resolution of any given Bishop motion is often handled by a different judge.
The affidavit in support of the defendant’s initial Bishop motion stated only that the complaining witness had received psychiatric counselling both prior and subsequent to the alleged assault, that the counselling records “may contain versions of the event” that would be “important for impeachment,” “may reveal a propensity on the part of the complaining witness to lie,” “may reveal a motive” for making false allegations, “may reveal a family history” giving rise to bias, and “may contain evidence that sheds light on the complaining witness’ ability to perceive, recollect, and recall.” This list of speculative possibilities as to what general categories of useful material the records “may contain” would certainly not suffice under Commonwealth v. Fuller, 423 Mass. 216, 226 (1996), and appears deficient even under the original, more lenient Stage Two Bishop standard. Commonwealth v. Bishop, supra at 182, quoting People v. Gissendanner, 48 N.Y.2d 543, 549 (1979) (court must deny request if “defendant’s request is supported only by a desire to embark on an ‘unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness’ ”). However, based on these conclusory assertions of materiality, the records of one provider were summoned to court, reviewed in camera, found to contain relevant information, and released to defense counsel. Those were the records that substantiated the complaining *198witness’s tendency to fantasize. Thereafter, the defendant learned that another provider had also counselled the complaining witness. The motion seeking access to those additional records was pending as of the date of this court’s decision in Commonwealth v. Fuller, supra, and the defendant was therefore required to submit an affidavit that met the more stringent Fuller standard. The defendant was able to satisfy Fuller, but, ironically, he did so only by pointing to information in the treatment records he had already seen.
The Bishop court was aware of this paradox, and apparently assumed that the Stage Two test was lenient enough to prevent any unfair consequence to defendants. “There is, of course, a danger in requiring the defendant to make too substantial a showing to justify piercing a privilege. A threshold requirement, so framed, could place the defendant in a ‘Catch-22’ situation. ‘To gain access to the privileged records defendant must specifically allege what useful information may be contained in the target records. However, defendant has no way of making these specific allegations until he has seen the contents of the records.’ People v. Foggy, [121 Ill. 2d 337, 359 (Simon, J., dissenting), cert, denied, 486 U.S. 1047 (1988)]. Such a requirement would produce a less-inclusive result in that possibly material, or even exculpatory, communications would remain undiscovered.” Commonwealth v. Bishop, supra at 179 n.6. Despite that awareness, Fuller then imposed very stringent Stage Two requirements on defendants and, as this case illustrates, Stage Two now operates to produce the precise “ ‘Catch-22’ situation” that the court had hoped to avoid. Commonwealth v. Bishop, supra.
I agree that “[i]t is not too much to ask trial judges to spend some of their very valuable time on these important questions,” (ante, at 193 [Spina, J., concurring]), but we should not impose burdensome procedures that fail to protect defendants’ constitutional rights. Rather, we should strive to formulate efficient procedures that enhance (rather than hinder) a trial judge’s ability to reach a correct and fair result when deciding such important privilege issues.
The Trial Court now has eight years of experience operating under the Bishop protocol. I do not think that Bishop is of such “recent adoption” (ante at 191 [Greaney, J., concurring]) that it is premature to assess its effectiveness. The protocol adopted in a unanimous decision of this court in Commonwealth v. Stockhammer, 409 Mass. 867 (1991), was abandoned and completely replaced only two years after its adoption. See Commonwealth v. Bishop, supra.
I believe that it would be unwise to venture forth with any actual overhaul of Commonwealth v. Bishop, supra, in the absence of any briefing on the subject, and that endorsing some particular solution to the Bishop conundrum would be premature.