Mass Dump files second suit for police misconduct records, this one targeting Bristol County DA
Mass Dump files second suit for police misconduct records, this one targeting Bristol County DA
Lawsuits accuse DAs of improperly withholding information about cops accused of crimes and misconduct
Bristol County District Attorney Thomas Quinn’s office violated the Massachusetts public records law by claiming a laundry list of exemptions to withhold information about police officers accused of crimes and other misconduct and assessing an excessive $500 fee for some of the records, according to a lawsuit filed by The Mass Dump in Suffolk County Superior Court on Wednesday.
It’s the second transparency lawsuit the Dump has brought against a DA this summer. In June, the Dump took the Northwestern District Attorney’s Office to court for blacking out the names of accused officers from its so-called Brady disclosures.
These documents are used by prosecutors to notify criminal defendants about allegations of dishonesty or other misconduct that can be used to challenge the credibility of officers testifying against them. In January 2022, the Dump made requests to both DAs for their disclosures and other related records.
The DAs claimed that the names of officers accused of crimes are protected by the state’s Criminal Offender Record Information, or CORI, statute — despite a 2020 Massachusetts Supreme Judicial Court ruling that arrest reports of police officers and other public officials cannot be withheld under this law.
The DAs also claimed that the names of officers accused of any misconduct are protected by the personal privacy exemption to the public records law — even though, in 2020, the state Legislature updated this exemption to explicitly say that it “shall not apply to records related to a law enforcement misconduct investigation.”
The Dump appealed to the Public Records Division of the Secretary of the Commonwealth’s Office. Despite three findings each by then-Supervisor of Public Records Rebecca Murray that the DAs had not provided a legitimate basis for withholding the names, both refused to provide the unredacted records.
“This office is complying with the newly amended language in [the privacy exemption] that has not yet been interpreted by the courts in this regard, while at the same time protecting individual privacy rights,” wrote Mary Lee, a Bristol County assistant district attorney.
After the Dump said it planned to sue, the Bristol County office partially backed down and agreed to reveal most of the names. However, it still refused to supply the identities of officers who it said were exonerated from misconduct accusations.
“These records of exoneration are not records of a misconduct investigation, as the documents demonstrate no misconduct by those officers,” Lee wrote. “The records therefore are simply personnel records of those officers.”
The Dump’s lawsuit alleges that this argument, and others raised by the Bristol County office to withhold additional records, are erroneous.
“When it comes to police misconduct, the public has a right to know how internal investigations are conducted,” said Mason Kortz, the Dump’s attorney. “This is true regardless of the outcome of the investigation — after all, the public has a strong interest in knowing who is not being held accountable for potential misconduct.”
He added: “While the public records law recognizes an interest in individual privacy, it must be balanced with the public’s interest in holding the government accountable. The Legislature, courts, and supervisor of records have all addressed this balance; in this case, none of them support the district attorney’s interpretation of the law.”
In a landmark 2003 decision, the state Appeals Court found that records from internal affairs investigations are not personnel records under the privacy exemption. That case concerned records related to a police officer who the Worcester Police Department exonerated from an excessive force allegation.
“A citizenry’s full and fair assessment of a police department’s internal investigation of its officer’s actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights,” the Appeals Court wrote. “Disciplinary action is but one possible outcome; exoneration and protection of the officer and the department from unwarranted criticism is another.”
In addition to the names, the Bristol County office has withheld witness statements about alleged misconduct, records related to its decisions about whether to disclose alleged misconduct to defendants, and records related to prosecutions of police officers. Some of the withheld records concern Michael Pessoa, a former Fall River officer who was convicted of assault and filing a false report in May and faces similar charges in two other cases.
The DA’s office cited a plethora of justifications to withhold this information, including the privacy exemption, the deliberative-process exemption, the investigatory exemption, impoundment orders, and grand jury secrecy rules. The DA’s office also cited a state law that allows people to sue for invasions of privacy but stopped relying on this statute after the Dump threatened to go to court.
In addition, the DA’s office attempted to charge a $500 fee for copies of its communications with criminal defendants and their lawyers. These records would show how often the DA’s office relies on officers with problematic histories when building criminal cases.
While the public records law allows agencies to assess fees for records under some circumstances, fees must be “reasonable” and cannot be “designed to limit, deter or prevent access to requested public records,” according to the text of the statute.
Murray, the records supervisor, rejected the majority of the DA’s arguments, although she declined to provide an opinion about the records related to pending prosecutions.
The Dump’s suit against the Northwestern District Attorney’s Office — which released Brady disclosures about more than 30 officers but refused to provide any of their names — remains ongoing. The Northwestern office’s response to the complaint is due by the end of July.
Kortz, who represents the Dump in both lawsuits, is a clinical instructor at Harvard Law School’s Cyberlaw Clinic, which is part of the Berkman Klein Center for Internet & Society. The Cyberlaw Clinic provides pro bono legal services regarding issues like technology, free speech, and intellectual property.
In both lawsuits, Kortz was assisted by Harvard law students Vincent Wroble and Carolina Rabinowicz, the latter of whom has since graduated. In the Bristol County suit, Kortz was also assisted by Sandra Ascencio, a Columbia Law School student who is serving as a summer intern at the Cyberlaw Clinic.
The Dump’s lawsuits follow a March decision by a Suffolk County Superior Court judge that the Bristol County DA was wrong to withhold officer names, reports, and other records related to the deadly shooting of Anthony Harden by a Fall River police officer. The judge found that the privacy and investigatory exemptions did not protect records sought by Harden’s brother, Eric Mack. The DA’s office has since appealed the ruling, asking the Supreme Judicial Court to review it.
You can download the Bristol County complaint and attachments here.
Unfortunately, making sure that public records are, you know, actually public is a ton of work! If you want to see more efforts like this, please consider supporting The Mass Dump and its mission of greater transparency in Massachusetts, either by signing up for a paid subscription to this newsletter or sending a tip via PayPal. I can’t do this important work without your help.
Brady records about police misconduct are vital. My investigative reports about alleged police brutality incidents in Egremont and Shirley wouldn’t have been possible without them. That’s why I’m willing to go to court for the Northwestern and Bristol County records.
The public records law has allowed me to publish other important police records, like a database of complaints against Boston police officers and databases of complaints and use-of-force incidents involving the Massachusetts State Police. Again, I can’t do this work without your help — so please consider becoming a supporter.
As always, thanks for reading! Please follow me on Facebook, Twitter, Bluesky, and Mastodon. You can email me at aquemere0@gmail.com.
You can read more about my first lawsuit here:
You can also listen to me talk about the Northwestern lawsuit on The Weed Out podcast here.
That’s all for now.