Metro

Ruling allows police to withhold officers’ drunken driving records

In most states, people are legally entitled to see basic criminal records, such as mug shots and police reports, just by asking for them.

But not in Massachusetts.

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In a series of recent rulings, the secretary of state’s office decided that many records related to criminal charges are exempt from the Massachusetts public records law, giving individual police chiefs and other officials the power to decide what to release or keep secret — even when the information relates to wrongdoing in their own departments.

The rulings, issued after the Globe challenged several law enforcement departments’ refusal to release records, further dilute the state’s open records law, already considered one of the weakest in the nation.

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Among the recent rulings: Boston police can withhold the names of five police officers caught drunken driving. State Police can withhold the report on an officer who was arrested. North Andover can refuse to release booking photos of a state trooper. And, the Department of Correction can withhold its entire log of people incarcerated in the state prison system.

The reason? The secretary of state’s office said state regulations that limit public access to the state database of criminal records, also known as “rap sheets” or Criminal Offender Record Information (known as CORI) reports, give law officials sweeping power to decide what other criminal records can be made public.

Departments have “the discretion to withhold records determined to be (covered by) CORI,” wrote Shawn Williams, the state’s supervisor of public records, who works for Secretary of State William F. Galvin, in a Feb. 20 order permitting the State Police to withhold an arrest report.

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The rulings have alarmed media organizations, government watchdogs, and civil rights lawyers, who fear it could give police the power to hide records of misconduct.

“It is a perversion of the public records law,” said Jeffrey J. Pyle, a public records lawyer with Boston law firm Prince Lobel Tye LLP, which represents many media organizations.

The rulings appear to make Massachusetts an outlier compared with most other states.

“The most basic information on an arrest is almost always public,” said Adam Marshall, a fellow with the Reporters Committee for Freedom of the Press, which tracks public records laws across the country.

Marshall said his own review found mug shots appear to be public in at least 40 states. And he believes arrest reports are even more widely available.

But many police departments welcomed the rulings, noting that agencies sometimes have good reason to withhold records to avoid disrupting ongoing cases and to protect people’s privacy rights.

“We wholeheartedly agree that police agencies must have discretion in determining which records are appropriate for public release at the time they are requested,” State Police spokesman David Procopio said.

Even before the rulings, citizens and reporters faced an uphill challenge obtaining many government records in Massachusetts. State law contains dozens of exceptions that allow documents to be withheld and no statutory penalties for agencies that flout the law.

People denied government records can appeal to the secretary of state’s public records division. But a Globe review last year found that the agency often takes months to issue decisions, usually sides with government agencies, and stopped referring orders to the attorney general for enforcement when agencies still refused to release documents.

That means people must go to court on their own to obtain records when agencies refuse to comply with the secretary of state’s orders, a process that can take years and cost tens of thousands of dollars.

Law enforcement agencies have almost always been able to withhold records related to active investigations, a powerful exemption agencies sometimes invoke liberally. State Police last year refused a blogger’s request for the file on a 63-year-old unsolved murder case, saying the case technically remained open, even though it later acknowledged the main suspect was long dead and the agency wasn’t pursuing any new leads.

Now Galvin’s deputy has gone further by deciding that police can permanently withhold records even after an investigation is completed and an arrest has been made, citing the rules limiting access to the state’s database of Criminal Offender Record Information. The law defines CORI as records collected by law enforcement starting with the “initiation of criminal proceedings” against a suspect.

But the state’s interpretation of the law has changed over time.

In 2010, the secretary of state’s office argued the CORI Act didn’t cover mug shots or other records created before a formal criminal complaint was entered in court. However, in more recent rulings, the agency relied on regulations defining the start of criminal proceedings as the moment when police take steps to bring a suspect to court — a definition the office said would include arrest reports and mug shots.

Pyle, the public records lawyer with Prince Lobel, said he thinks the secretary of state’s office gave too much deference to the CORI regulations crafted by state officials and should have instead relied on the actual wording of the state law.

“It’s just an abdication of his responsibilities to interpret the public records law,” he said.

The office also ruled that the entire inmate booking log — which shows who has been locked up in state prison — is protected under CORI, even though the law says “any member of the general public” should be able to find out if someone is imprisoned or on probation.

The Globe is considering whether to appeal the rulings.

The secretary of state’s office also ruled two departments couldwithhold records of officers who were arrested under an exemption for personnel records.

“Police departments and the majority of chiefs have long held that personnel records are within their purview and we concur,” said Jerry Flynn, executive director for the New England Benevolent Association Inc., the largest law enforcement union in New England.

But watchdogs note that the secretary of state’s rulings permit police to treat charges against their own officers differently than the general public.

The Boston police, for instance, withheld names of five officers charged with drunken driving over the past few years, even though it has published the names of civilians charged with the same offense.

“It’s a double standard,” said a 31-year-old advertising professional from Somerville, whose arrest was posted on the Boston police blog five years ago. He asked that his name not be used because he has stopped drinking and is trying to put the arrest behind him.

Boston police Lieutenant Michael McCarthy said the agency wasn’t giving officers special treatment. He said CORI rules only allow law enforcement agencies to release records around the same time as incidents — and the Globe asked for information too late.

However, a spokesman for the agency that manages the state database of criminal records said police departments usually have the authority to decide when to release mug shots, police reports, and other criminal records.

“The discretion remains with the department,” said Terrel Harris, spokesman for the Department of Criminal Justice Information Systems.

The deference to law enforcement agencies troubled even some organizations who have pushed to limit the scope of what shows up on people’s criminal records during background checks.

“I think there is certainly a balance to be struck between protecting people’s criminal records and the public’s right to know,” said Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, “but striking the balance should not be left up to the police.”

Todd Wallack can be reached at twallack@globe.com. Follow him on Twitter @twallack.
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