In the past year, the normally sleepy topic of public records law has caught fire in Massachusetts. Thanks to extensive reporting by the news media, the public has become aware of widespread problems accessing public records, including questionable denials of access, demands for exorbitant fees, and ineffective administrative oversight. The Center for Public Integrity has given Massachusetts an “F” grade for its public access to information, and our State Police recently won the 2015 “Golden Padlock Award,” a national “honor” bestowed by Investigative Reporters & Editors to acknowledge “the dedication of government officials working tirelessly to keep vital information hidden from the public.”
As a result of these embarrassments, the legislature is finally giving serious consideration to updating the Public Records Act, G.L. c. 66, § 10, long viewed as the weakest freedom of information act in the country. House Bill 3665, “An Act to Improve Public Records,” addresses the substantial procedural obstacles to access, including high fees for production, slow response times, and the inability of courts to award attorneys’ fees to requesters who prevail in court. As of this writing, the bill remains on hold as sponsors consider objections from some cities and towns to its limitations on search fees and copying costs.
Even if this important legislation is enacted, however, significant barriers to access will remain. Many have noted that the bill does not address the exclusion of the legislature and the courts from the Public Records Act, and the Governor’s Office will be able to continue to declare itself exempt. Less remarked upon, but of arguably equal significance, the bill does not address the fact that in the last ten years, through statutory enactments and restrictive interpretation of existing law, vast categories of documents concerning the Massachusetts criminal justice system have been removed from public inspection. These changes have placed the Commonwealth well outside the norm of other states, and deprived the public of crucial information at a time of heightened public concern about criminal justice policies and police misconduct.
This article will focus on three categories of criminal justice records of particular concern.
Arrest Reports, the Investigatory Exemption and the CORI Statute
The Public Records Law, G.L. c. 66, § 10, provides that all records in the custody of covered governmental entities—including state agencies, municipalities, and law enforcement —are presumptively open to the public. The law also contains numerous “exemptions” to the statutory definition of “public record” that allow covered entities to withhold documents, but places the burden on the government to prove with specificity that an exemption applies. The exemptions are to be narrowly construed, and where possible, the government must redact sensitive material rather than deny records outright. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979).
One exemption allows the government to withhold “investigatory materials,” only if they are “necessarily compiled out of the public view by law enforcement or other investigatory officials” and their release “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” G.L. c. 4, § 7 cl. 26(f). Plainly, this is no “blanket exemption” for all “records kept by police departments,” and it does not permit “every document that may be placed within what may be characterized as an investigatory file” to be kept secret. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65 (1976). Rather, for the investigatory exemption to apply, there must be “specific proof” that the release of a particular record would prejudice the possibility of effective law enforcement. Because that burden can be established with a showing that release would expose confidential law enforcement techniques or discourage witnesses from coming forward in the future, the conclusion of an investigation does not necessarily eliminate protection. Nonetheless, courts have ordered the release of citizen witness statements,[i] police incident reports,[ii] and even the interview of a murder suspect,[iii] notwithstanding invocation of the exemption.
The language of the investigatory exemption reflects a legislative intent to balance the legitimate needs of the police against the substantial public interest to know about crime and law enforcement activities. However, in the last several years, law enforcement agencies have asserted that they need not contend with the narrowness of the investigatory exemption. They claim that routine police documents, such as arrest reports, incident reports and mugshots are subject to the Criminal Offender Record Information (CORI) statute, G.L. c. 6, § 167 et seq.; that the CORI statute gives police the “discretion” whether to withhold or release such documents; and thus they are “specifically or by necessary implication exempted from disclosure by statute,” in the words of another exemption.
These assertions are incorrect. While the CORI statute imposes restrictions on the dissemination of “criminal offender record information,” it expressly limits the restriction to information “recorded as the result of the initiation of criminal proceedings.” G.L. c. 6, § 167. Routine police documents like arrest reports and mugshots are prepared before and not “as the result” of the issuance of a criminal complaint. Accordingly, the CORI statute plainly “was not enacted to stop the release of police records,” and does not—“specifically or by necessary implication”—exempt such records from release under the Public Records Act. This was the analysis of then-Supervisor of Public Records Alan Cote in 2003, in a memorandum deriding a “troubling” law enforcement trend of withholding pre-arrest incident reports under CORI.[iv]
However, in 2010, the Department of Criminal Justice Information Services (DCJIS), which is tasked with implementing the CORI statute, adopted the novel position that the “initiation of criminal proceedings” is not the issuance of a criminal complaint, but rather, the “point when a criminal investigation is sufficiently complete that the investigating officer takes actions toward bringing a specific suspect to court.” That moment generally precedes arrest and the taking of a mugshot. The DCJIS later issued a regulation embodying this definition of “initiation.” 803 CMR 2.03(4) and 7.02. Now, police departments—as well as the current Supervisor of Records—routinely rely on the DCJIS regulations to deny public access to routine police records.
This does not mean that police departments never release arrest reports or mugshots—they often do under another DCJIS regulation that permits, but does not require, the dissemination of CORI records “specifically related to, and contemporaneous with, an investigation or prosecution.” 803 CMR 7.10. However, when the Boston Globe sought public records concerning the arrests of police officers for drunk driving, police departments almost uniformly relied on the CORI statute to deny the requests.[vi] Thus, in Massachusetts, reports of arrests—one of the most significant actions the government can take against an individual—are being released only at the discretion of the police, contrary to the strong presumption of openness at the heart of the Public Records Act.
The Boston Globe recently filed a groundbreaking lawsuit challenging the DCJIS regulations and the law enforcement interpretation of the CORI law. Boston Globe Media Partners, LLC v. Dep’t. of Criminal Justice Information Services, Suffolk Superior Court, No. SUCV2015-01404D. A decision in the case could affect not only the press and the public, but also attorneys seeking to investigate prior incidents. If the courts rule in favor of the law enforcement agencies, Massachusetts would become the only state where police are vested with the unfettered discretion over whether and when to grant public access to arrest reports.[vii]
Domestic Violence Records
Massachusetts police departments have long been required to assemble a log of daily arrest reports and keep it open for public inspection. G.L. c. 41, § 98F. Journalists use the logs to inform the public about crime in the community and to determine which court proceedings to cover. But in 2014, the governor signed legislation requiring police departments to exclude from the logs all reports of domestic violence, sexual assault, and the violation of abuse protection orders pursuant to G.L. c. 209A. Before this change, no type of crime, but for a limited exception, was excluded from public inspection.[viii] At the same time a different statute, G.L. c. 41, § 97D, was amended to provide that the police must keep all incident reports concerning domestic abuse confidential—that provision had previously applied only to charges of rape and sexual assault.
These changes to the law, included in a larger domestic violence bill, were intended to encourage victims of abuse to report the violence without the risk of embarrassment. However, the expurgation of the logs can also result in protecting the alleged perpetrators of abuse from publicity, thus arguably removing a deterrent to abuse. The exclusion also may dampen public awareness about violence in the community,[ix] prevent the public from learning about violence perpetuated by public officials or other persons holding positions of trust, and mask other criminal charges that may accompany domestic violence arrests, such as drug and firearms possession. While the domestic violence bill did not purport to seal court records (and thus cannot promise true confidentiality to victims), the mandatory exclusion of the information from police logs may hinder the news media’s efforts to learn about crimes in first place. It may also prevent the public from learning how the police respond to and otherwise handle reports of domestic abuse, thereby creating the risk that the crime could be driven further underground. This Massachusetts restriction appears to have no equivalent elsewhere in the United States.[x]
Sealing of Criminal Cases
In a celebrated “quartet” of decisions in the 1980s, the Supreme Court ruled that the public has a fundamental right protected by the First Amendment to attend criminal trials and pre-trial proceedings. One of the purposes of the First Amendment, the Court explained, is to assure “freedom of communication on matters relating to the functioning of government,” and it would be difficult to identify any government function “of higher concern and importance to the people than the manner in which criminal trials are conducted.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980). Numerous federal courts of appeal have applied the Supreme Court’s reasoning to hold that there is a First Amendment right of access to documents filed in criminal cases.
In 1989, the First Circuit held that a Massachusetts statute requiring the blanket sealing of records of cases resulting in not-guilty findings and other non-conviction dispositions was unconstitutional as written. Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989). The court held that records of dismissed or nolle prossed cases may be sealed only upon specific, on-the-record findings that sealing is necessary to effectuate a compelling governmental interest sufficient to overcome the public’s First Amendment right of access to criminal proceedings. The Supreme Judicial Court followed suit a few years later, ruling in Commonwealth v. Doe that in order to seal such records, the defendant must demonstrate on the specific facts of the case, that “the value of sealing to the defendant clearly outweighs the constitutionally-based value of the record remaining open to society.” 420 Mass. 142, 151 (1995). The value of open court proceedings is so weighty, and the First Amendment right so strong, that both the Pokaski and Doe courts anticipated that few defendants would be able to seal records under this standard. Pokaski, 868 F.2d at 506 n. 17; Doe, 420 Mass. at 150 n. 7.
In August 2014, however, the SJC departed sharply from this well-established case law. In Commonwealth v. Pon, 469 Mass. 296 (2014), the Court decided that the First Amendment does not apply after all, and that henceforth, defendants need show only “good cause,” not a compelling interest, to seal the records of a case ending in dismissal or a nolle prosequi. Id. at 311-312. While it remains true that in order to seal these records, defendants must overcome a common-law based “general principle of publicity,” the SJC invited motion judges to abandon the case-specific inquiry required by Doe (and, for that matter, the common law “good cause” test), and instead to “take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities.” Id. at 315-316. Pon gives great weight to “the compelling governmental interests in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants,” and only the barest acknowledgement of the public’s “general right to know so that it may hold the government accountable for the proper administration of justice.” Id. at 315 (emphasis supplied).
The SJC’s ruling in Pon once again puts Massachusetts law at the vanguard of criminal justice secrecy, and in sharp conflict with not only the First Circuit’s Pokaski decision but with every other federal court of appeals to have considered the standard for sealing criminal records. To be sure, the societal goals cited in Pon are important, but the articulated test makes it likely that many more criminal records—including in cases where the defendant admitted to facts sufficient to warrant a guilty finding in exchange for a continuance without a finding—will be shielded from the press and the public. While acknowledging in a footnote that a “different analysis may be necessary” if “the defendant is a public figure,” the SJC failed to recognize that today’s private figure can be tomorrow’s candidate for election, and it could be highly relevant to voters that a candidate for office once admitted to a crime. Perversely, the Pon decision also makes it more likely that the public and the media will resort to third-party background check services, which are likely to be less complete and accurate than official court records that are now permitted to be sealed under Pon.
If there is any part of our government that deserves scrutiny by the press and the public, it is the criminal justice system. More than 130 years ago, then-Supreme Judicial Court Justice Oliver Wendell Holmes wrote: “it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). We are in danger of abandoning that important principle in Massachusetts.
Jeffrey J. Pyle is a partner at Prince Lobel Tye LLP in Boston, where he practices in the fields of First Amendment, media law, and litigation. He is a member of the BBA Council, and previously served as Chair of the Amicus Committee and co-chair of the Civil Rights and Civil Liberties Section.
[i] Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 863 (1995).
[ii] Reinstein, 378 Mass. at 291; Globe Newspaper Co. v. Evans, No. CIV.A 97-4102-E, 1997 WL 448182, at *4 (Mass. Super. Aug. 5, 1997) (Burnes, J.).
[iii] Rafuse v. Stryker, 61 Mass. App. Ct. 595, 600 (2004).
[iv] SPR Bulletin No. 3-03, Nov. 21, 2003.
[vi] Todd Wallack, “Ruling Allows Police to Withhold Officers’ Drunken Driving Records,” Boston Globe, March 11, 2015.
[vii] See www.rcfp.org, last visited September 23, 2015. According to the Reporters Committee for Freedom of the Press (RCFP), which publishes a 50-state guide to access to public records, there is currently no state where police have unfettered discretion whether to withhold routine arrest reports.
[viii] The earlier exception provides that “any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public.” G.L. c. 41, § 98F (2013).
[ix] After the amendment of G.L. c. 41, § 98F, the City of Waltham noted a significant drop in the overall number of incidents reported in the police log. See Eli Sherman, “Waltham Police Comply with New Domestic Violence Law; Logs Show Far Fewer Arrests,” Waltham News Tribune, Aug. 28, 2014.
[x] Under California law, the names and addresses of victims of domestic assault may be withheld at the victim’s request. Cal. Gov’t Code, § 6254.
[xi] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press–Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Press–Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).