SJC: Mugshots and police reports on police officers and judges must be released

Booking photographs of judges and law enforcement officers who are arrested and any police reports connected with their cases are public records, even if the officials are never arraigned in court, the Supreme Judicial Court ruled Thursday.

In one of two major rulings on the intersection between the public’s right to know and the privacy protections in the state’s Criminal Offender Record and Information Act, the court ruled unanimously that The Boston Globe was entitled to booking photos and reports on police officers arrested on drunken driving charges and the booking photo and report on the arrest of a judge for theft.

"The public has a vital interest in ensuring transparency where the behavior of these public officials allegedly fails to comport with the heightened standards attendant to their office,'' Chief Justice Ralph Gants wrote in the 6-0 ruling.

The SJC also, for the first time, made it clear that government agencies must extract data from their electronic records to comply with requests under the state’s public records law. The law allows the government to deny requests if the information sought would force them to create a “new record.”

“We have not previously addressed what constitutes the creation of a new record,” Gants wrote in the second unanimous ruling. Requiring a “government entity to search its electronic database to extract requested data does not mean that the extracted data constitute the creation of a new record under the public records law.”

In the court’s decision ordering the release of booking photos and reports, Gants wrote that “where police officers and judges allegedly engage in criminal conduct that does not result in an arraignment ... the public has a substantial interest in ascertaining whether the case was not prosecuted because it lacked merit or because these public officials received favorable treatment arising from their position or relationships.”

Releasing the information to the Globe — or others who request it under the public records law — is an essential part of assuring public confidence in the judiciary and law enforcement, Gants wrote.

"Such matters implicate not only the integrity of the public officials who allegedly engaged in criminal conduct but also the integrity of our criminal justice system,'' he wrote.

The Globe filed the lawsuit that led to Thursday’s ruling in 2015 after police departments refused to release police reports and booking photographs of police officers accused of drunken driving and a report for a judge accused of stealing a $4,000 Cartier watch. A clerk magistrate refused to issue the criminal charges against the judge.

In the ruling, Gants wrote that the booking photos must be released.

"Disclosure of the booking photographs will eliminate confusion as to the identity of those arrested where they may have common names that may be shared by others,'' the chief justice wrote.

State Police and Attorney General Maura Healey’s office opposed releasing the information to the Globe.

In a companion ruling involving the Globe and the state’s 11 district attorneys, each of whom operate an electronic case management system, the SJC said prosecutors must disclose 22 data points about criminal cases sought by the Globe. Eight of the district attorney’s offices provided the Globe with the data, but the Plymouth, Worcester, and the Cape and Islands district attorneys refused, leading to a lawsuit filed by Healey’s office under the public records law.

The Globe, in a data request, did not ask for names of defendants or other personal identifying information, but it did ask for case docket numbers.

The SJC said that providing the case docket number would allow the Globe — or anyone else who makes the request — to bypass privacy protections in the CORI Act and delve into an individual’s criminal history not otherwise available to the public. For that reason, the court ruled the docket numbers must not be disclosed.

“The public records law cannot be interpreted to permit members of the general public to make an end run around the CORI restrictions by allowing them to generate criminal histories of individuals through public records requests to prosecutors, and thereby obtain a more extensive criminal history,” Gants wrote.

However, the SJC ordered prosecutors to provide 22 other data points and to do so by extracting the information from their existing databases.

“I sought this decision by the court for precisely the reason the court identified in its ruling. That is if we turned this information as requested over to the Globe they would be able to construct their own Criminal Record Database," Cape and Islands District Attorney Michael O’Keefe said in a statement. “That in my view violated the CORI law.”

“Ironically the Globe, a cheerleader for CORI reform ostensibly to help criminal defendants reintegrate into society by restricting who can access their criminal records, wanted to have unfettered access to the same information which they wanted denied to the public,” O’Keefe said, calling it the “height of hypocrisy.”

Worcester District Attorney Joseph Early Jr. and Plymouth District Attorney Timothy J. Cruz along with O’Keefe said in a joint statement they were considering whether to ask the SJC to rethink the other portion of its decision in the data request case.

“Our objective from the beginning has always been to comply with the Public Record Law, to comply with other laws pertaining to privacy rights of individuals, and to comply with our ethical obligations that limit the dissemination of information regarding accused persons,” the prosecutors said.