Mass Dump sues Northwestern DA for withholding names of cops accused of crimes

David Sullivan’s office said releasing the names of cops accused of crimes and other misconduct would violate their privacy

Northwestern District Attorney David Sullivan’s office violated the Massachusetts public records law by withholding the names of police officers accused of crimes and other misconduct, according to a lawsuit filed by The Mass Dump in Suffolk County Superior Court on Monday.

In January 2022, the Dump made a records request for the district attorney’s Brady list and other related records. Brady lists are a tool that some prosecutors use to protect the due-process rights of people charged with crimes. These documents aid prosecutors in notifying defendants about allegations of dishonesty or other misconduct that can be used to challenge the officers’ credibility in court.

The DA’s office said it did not maintain a Brady list but provided disclosure letters about more than 30 police officers who faced allegations including domestic violence, indecent assault on a minor, possession of child pornography, drunk driving, providing false testimony in court, and accepting money for hours they did not work.

The documents show that the DA’s office regularly relies on some officers with problematic pasts.

According to the records, the Northampton Police Department sustained allegations that an officer was responsible for a domestic assault and untruthfulness related to the assault in 2015. Between 2021 through January 2022, information about the officer was disclosed in at least 22 criminal cases, the records show.

In May 2018, another Northampton officer received a continuation without a finding for alleged drunk driving and leaving the scene of property damage, and the officer was placed on probation for one year before the case was dismissed, according to the records. In 2021, this information was disclosed in at least 33 criminal cases, the records show.

However, the DA’s office blacked out all of the officers’ names, claiming they are protected by the personal privacy exemption to the public records law.

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 core issue in this case is what that language means, according to the Dump’s attorney, Mason Kortz.

“We think the best interpretation is the most obvious one: When a police officer is suspected of unprofessional, unethical, or illegal conduct, the public has a right to know the results,” Kortz said.

“The 2020 amendment to the public records law was part of a larger bill addressing police accountability in Massachusetts,” he added. “Allowing law enforcement agencies to shield officers from public scrutiny would significantly undermine that legislative intent of the bill.”

Assistant District Attorney Cynthia Von Flatern, the DA’s records access officer, wrote that this “new language is very vague” and “is not defined in the statute.” She argued that the Brady disclosure letters are personnel records under the privacy exemption.

“The reputation and livelihood of a police officer, as for any employee, is critically important to that employee,” she wrote. “Release of information that should remain private will jeopardize an employee’s reputation, privacy, career, and life.”

The state Appeals Court ruled in 2003 that internal-affairs investigations of police officers are not personnel records and cannot be withheld on that basis.

“It would be odd, indeed, to shield from the light of public scrutiny as ‘personnel [file] or information’ the workings and determinations of a process whose quintessential purpose is to inspire public confidence,” the Appeals Court wrote.

The DA’s office also blacked out docket numbers related to criminal charges against officers. Docket numbers are identification numbers that courts assign to cases and can be used by journalists and other members of the public to look up and obtain records of those cases.

Von Flatern said the docket numbers and the names of officers who have been charged with crimes are exempt under the state’s Criminal Offender Record Information law, which protects some information about people’s criminal records.

The Dump made three appeals to the Public Records Division of the Massachusetts Secretary of the Commonwealth’s Office. In all three of her decisions, then-Supervisor of Public Records Rebecca Murray found that the DA’s office had not justified withholding the names or docket numbers under the privacy exemption or CORI law.

“[W]here these letters were created as templates after the criminal proceedings in which the police officers were involved, the [DA’s] Office has not demonstrated how this information fits within the definition of CORI,” Murray wrote.

In Murray’s third decision, she gave the district attorney’s office 10 business days to comply. Von Flatern responded 40 business days later and only did so after being contacted twice by Angela Puccini, the compliance supervisor for the Public Records Division.

“Please be advised that, respectfully, [the DA’s office] must decline to provide unredacted copies of the [records],” Von Flatern wrote.

Before filing suit, Kortz asked the DA’s office to release unredacted versions of the records to “spare the taxpayers of Hampshire and Franklin counties the expense of defending an unnecessary lawsuit.” The DA’s office refused.

Kortz 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.

“As a strong supporter of investigative journalism, I believe that this case will not only help my client shed light on the accountability — or lack thereof — in local police departments, but also pave the way for other reporting in the future,” Kortz said.

Kortz was assisted by Harvard law students Vincent Wroble and Carolina Rabinowicz, the latter of whom has since graduated.

“Having the opportunity to participate in the Cyberlaw Clinic as a law student was invaluable,” Rabinowicz said. “I was able to work on a real public records case in a supervised setting designed to help me improve my legal skills through practice. … The case itself was particularly interesting, with important ramifications for civil rights in Massachusetts.”

You can download the complaint and attachments here.

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UPDATE (6/19/2023): The Northwestern DA’s office released a statement to the media saying that it is not giving special treatment to police officers by withholding their names and docket numbers.

UPDATE (7/3/2023): I appeared on The Weed Out podcast to discuss the lawsuit against the Northwestern DA’s office.

UPDATE (7/18/2023): Northwestern DA David Sullivan appeared on the WHMP program Talk The Talk to discuss the lawsuit, making a variety of false and contradictory claims — even denying that his office possesses the relevant records.

UPDATE (7/26/2023): The Dump filed an amended complaint that takes into account Sullivan’s comments during the WHMP interview. The updated complaint argues that Sullivan’s comments suggest that his office did not adequately search for the responsive records and asks the court to order his office to locate any additional documents.

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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 these Northwestern 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. If you have any story ideas, let me know about them! You can email me at aquemere0@gmail.com. Please follow me on Facebook, Twitter, and Mastodon.

That’s all for now, folks — but expect more exciting news in the near future.