Police abuse exemption in public-records law, reform panel is told
The Cambridge Police Department refused to make public its policy on the use of force, following a public records request. State Police declined to provide a Central Massachusetts blogger with records in a more than six-decades-old case of unsolved murder. And a Quincy resident who had filed a police report was denied a copy of it.
Each of the police departments cited, at least in part, an exemption to the public records law that allows agencies to withhold investigatory materials that, if disclosed, “would probably prejudice the possibility of effective law enforcement.”
“We have some of the worst public records laws in the country,” said Dianne Kane-McGunigle,
A number of exemptions allow public agencies to keep secret routine documents that are easily accessible in most other states. Now, for the first time in more than four decades, Massachusetts lawmakers are in the midst of revamping the state’s weak public records law. As part of the overhaul, a state working group has been charged with reviewing and evaluating the way in which law enforcement agencies have used public records exemptions and will recommend changes to the Legislature by year’s end.
“From my perspective, the exemption is way too broadly construed and applied,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association and a member of the working group. “I don’t think it was meant to be that way. It needs to be tightened up and tailored.”
“There is a strong public interest in knowing what’s going on,” he added.
The working group, chaired by a representative of Secretary of State William F. Galvin, this week met for the first time to discuss the public’s interest in police records, such as daily logs, and unsolved investigations. They also discussed privacy and confidentiality concerns regarding the release of arrest reports.
The working group — which includes civil rights and media attorneys, law enforcement and trial court officials, along with state legislators — was asked to consider what information should be included in daily police logs, when an unsolved homicide should no longer be considered an active investigation, and whether victims should have greater access to police reports.
Salisbury Police Chief Thomas W. Fowler, a member of the working group, said its members are determined to strike the right balance to improve the law.
“I’m for transparency in government, but I also realize that releasing certain things can jeopardize an investigation,” Fowler said. “If we’re going to propose legislative changes it needs to take everyone’s view into account and be what’s best for everybody.”
Two of the most commonly used reasons for withholding law enforcement records are the investigatory exemption — which allows agencies to shield investigatory documents that would inhibit effective law enforcement— and the Criminal Offender Record Information, or CORI, statute. The latter has been used to withhold names of police officers caught driving drunk, and it kept secret a report about a judge accused of stealing a $4,000 watch at Logan International Airport, even though police often release similar records involving ordinary residents.
The state’s supervisor of records ruled that departments have “the discretion to withhold records determined to be [covered by] CORI.” The Globe challenged that decision in Suffolk Superior Court two years ago; the lawsuit is still pending.
There are restrictions on who can access criminal records from the CORI database.
“We have criminal laws that say you just can’t disseminate criminal information about anybody . . . we want people to be able to reenter [society] and reintegrate,” said Chris Dearborn, a Suffolk University Law School professor. But he said the working group is “going to find out that these exemptions are being used as shields. This has been historically a problem.”
The investigatory exemption was designed to avoid premature disclosure of information prior to a trial and to prevent the release of confidential investigative techniques, procedures, and sources of information. But it has often been used as a unilateral response to deny a variety of records requests.
In 2015, the Cambridge Police Department said its use-of-force policy was exempt because it was considered investigatory material. The year before, State Police would not give a blogger records on a 63-year-old cold case because they said the investigation remained ongoing. But state courts have ruled there must be “real signs” that a case is still active in order to claim that exemption.
“We believe in government transparency, and nowhere is transparency and what government does more important than in areas of criminal justice,” said working group member Jeffrey Pyle, a Boston lawyer who specializes in free-speech issues at Prince Lobel Tye LLC and is a coordinating attorney with the American Civil Liberties Union of Massachusetts. “There’s no such thing as a secret criminal justice system, nor should there ever be.”
Emily Snyder, spokeswoman for the attorney general’s office, which has a representative on the working group, said:
“We hope to provide clear parameters about what this exemption means to ensure government transparency, while allowing law enforcement agencies to do their job.”
Under current law, daily police department logs are public, but entries related to a mentally or physically handicapped person or reports of domestic violence, rape, or sexual assault are not. That exemption was designed to protect victims of sexual abuse and domestic violence, but has also made information about perpetrators off-limits to the public.