Police-misconduct records are not private, Mass high court rules
Records of police-misconduct investigations aren’t exempt from public disclosure under privacy exemption, Massachusetts Supreme Judicial Court rules
Law-enforcement agencies cannot withhold records related to investigations of alleged police misconduct under the privacy exemption to the Massachusetts Public Records Law, the Massachusetts Supreme Judicial Court ruled Friday, thwarting efforts by prosecutors to use a law intended to increase police transparency to do the opposite.
A sweeping police reform law passed by the state Legislature in 2020 amended the privacy exemption to say that it “shall not apply to records related to a law enforcement misconduct investigation.”
However, Bristol County District Attorney Thomas Quinn’s office argued that it could invoke the privacy exemption to withhold information about a deadly police shooting — including the names of the officer who pulled the trigger and another officer who was present — because it said the officers did nothing wrong.
The DA’s office argued that an investigation of possible police misconduct isn’t a “misconduct investigation” unless a law-enforcement agency concludes that misconduct occurred.
“This contention of the district attorney’s office finds no support in the language of the statute,” according to an opinion written by Supreme Judicial Court Justice Frank Gaziano. “To require the investigation to end with a finding of police misconduct places the cart before the horse and runs counter to the goals of police accountability and transparency.”
A spokesperson for the DA’s office did not respond to requests for comment.
The lawsuit was filed by Eric Mack, whose brother Anthony Harden was shot to death by Fall River police officer Chelsea Campellone in November 2021.
Mack said he and his family were “very pleased with the decision from the SJC.”
“The decision will increase transparency and allow the public to hold government officials accountable,” he said. “While there is still more work to be done, this is a step in the right direction.”
Mack sued the DA’s office in February 2022 after it refused to provide many of the records about the shooting that he requested, including photographs of the scene, a surveillance video showing officers entering and leaving Harden’s apartment, recordings of investigators’ interviews with officers and EMTs, and other documents.
According to the SJC decision, none of the records sought by Mack can be withheld under the privacy exemption because they are all related to a police-misconduct investigation.
“As the district attorney’s office has acknowledged, the purpose of the investigation in this case was to determine whether the two responding officers committed any crimes or violated the Fall River police department’s use of force policy in relation to the decedent’s death,” the SJC writes.
“Overall, this is a very good decision and is supportive of the public record statute,” said Mack’s attorney, Howard Friedman. “Privacy is just not going to be a sustainable objection to requests for law-enforcement misconduct investigations.”
The SJC also rejected the DA’s argument that only the Massachusetts Peace Officer Standards and Training (POST) Commission has the authority to release the names of officers who are accused of misconduct.
The POST Commission was created by the 2020 police reform law to oversee police officer certification and create a statewide database of complaints against officers. The POST Commission itself filed an amicus brief opposing the DA’s argument.
According to the SJC decision, there is no language in the 2020 law saying that only the POST Commission can release the names of officers.
“Based on the plain language of the statute, the statutory construction argument of the district attorney’s office fails, and we need not proceed any further,” according to the decision.
However, the SJC punted on another important issue: whether the DA’s office can withhold the recorded interviews with officers and EMTs under the Public Records Law exemption for law-enforcement investigations.
According to the SJC, a Suffolk County Superior Court judge who sided with Mack failed to consider whether the investigatory exemption applies to the interviews. The SJC sent the case back to the lower-court judge to consider this issue.
The DA’s office argued that officers would decline to be interviewed for investigations if the recordings could be released due to concerns that people would post the recordings online “for the purpose of ridiculing or vilifying the interviewees,” according to court records.
According to the SJC decision, the high court has previously ruled that law-enforcement agencies can withhold interviews under the investigatory exemption to encourage witnesses to speak with investigators, but the court “only … considered this factor for private individuals — not public officials performing duties in their official capacity.”
In a separate opinion, Chief Justice Kimberly Budd agreed with the decision to send the issue back to the Superior Court but went further, saying she was “doubtful” of the DA’s argument that officers would be less candid if they knew interviews could be made public.
Officers would have more incentive to provide truthful information to investigators if the recordings could be released, according to Budd’s opinion.
“Presuming that disclosure would be detrimental to officer candor provides police departments (and other agencies) with a ready excuse to oppose the disclosure of information, which otherwise would be available to the public, based on a speculative, intangible, and largely unverifiable concern,” Budd writes.
The SJC also declined to order the DA’s office to pay the attorney’s fees for Mack’s lawyer, Friedman.
The decision means Friedman will still be awarded fees for his work in the Superior Court but won’t be awarded fees for his work on the appeal, which was brought by the DA’s office after it lost in the lower court.
The Superior Court judge who sided with Mack previously awarded fees for Friedman’s work under a provision of the law that generally requires judges to order government agencies that lose public records lawsuits to pay the opposing party’s attorney’s fees.
“I am mystified,” Friedman said. “We won on virtually every issue. I don’t understand why we weren’t awarded attorney’s fees [for the appeal]. … It would have been helpful if they explained the reasoning.”
In addition to the Mack case, the Bristol County DA’s office is facing a lawsuit by The Mass Dump for refusing to release records related to police-misconduct investigations.
The Dump is also suing the Northwestern DA’s office for refusing to release the names of officers accused of misconduct and the case numbers for officers charged with crimes. The Northwestern office filed an amicus brief in the Mack case supporting the rejected argument that only the POST Commission can release the names of accused officers.
The records at issue in both lawsuits are Brady disclosures, which are used by prosecutors to notify criminal defendants about allegations of officer misconduct that defendants can that can be use to challenge the credibility of officers testifying against them.
The Dump’s lawsuits were paused while the Mack case played out in the SJC because they involve similar legal issues. Now, the two DA’s offices have until mid-May to indicate whether they intend to continue fighting the Brady disclosure requests.
The Dump is represented by attorney Mason Kortz, an instructor at the Harvard Law School Cyberlaw Clinic.
“The decision in the Mack case gives full effect to the clear intention of the Massachusetts Legislature: to provide greater insight into police-misconduct investigations,” Kortz said. “However, it is frustrating that the district attorney spent so much time — and taxpayer money — litigating an issue that was evident from the face of the statute.”
He added: “Hopefully, the Mack decision serves to remind agencies that obstructing legitimate public records requests is ultimately a net loss for the requester, the agency, and the public. If not, the Harvard Cyberlaw Clinic will continue to represent individuals who are pursuing greater government transparency and accountability in Massachusetts.”
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