In a potentially far-reaching ruling, a Suffolk Superior Court judge ruled this week that law enforcement agencies in Massachusetts can’t use the state’s criminal records law to withhold lists of people jailed, mug shots of police officers who are arrested, and police reports involving public officials accused of breaking the law.
“This is a key victory for public access, barring law enforcement from arbitrarily withholding documents, often about accused and suspected criminals,” said Brian McGrory, editor of The Boston Globe, which brought the lawsuit.
The paper filed the suit in 2015 against several state agencies, the Boston Police Department, and the North Andover Police Department after they withheld photos and reports of more than a half-dozen law enforcement officers who were charged with driving under the influence, as well as a report about a judge who was accused of stealing a watch at Logan International Airport. Boston police would not provide the names of officers who had been arrested, even though detailed information about ordinary residents who were arrested was posted on the department’s website.
The case could potentially have far-reaching implications for journalists and citizens trying to obtain records on public officials and other influential people who break the law. Currently, some police departments regularly provide police reports, while others routinely reject public records requests.
“We need to know when police are breaking laws instead of enforcing them,” said Justin Silverman, executive director of the New England First Amendment Coalition, an advocate for greater access to public records. “It’s a matter of public trust. Mugshots and incident reports should not be withheld to spare the reputation of a police officer.”
Boston police and state officials said they are still reviewing the decision and have not yet decided whether to appeal.
Despite defending the agencies’ in court, Attorney General Maura Healey has repeatedly said she was troubled by the idea that police departments could legally withhold records when their government employees run afoul of the law, while remaining free to release criminal records about other people. “Government accountability and transparency are key values of my office, and the law needs to be applied consistently,” Healey said Friday
The state and cities that denied the Globe’s requests cited the state’s Criminal Offender Record Information Act, which was adopted in 1972 to create a centralized state database of criminal records. The Legislature has restricted public access to that database, in part to help allow former criminals to eventually move on with their lives and find jobs and housing.
But over the years, some government officials have argued the law should also apply to documents outside the database because the statute says it applies to records created “as the result of the initiation of criminal proceedings or any consequent proceedings.”
A number of state and local agencies, including Secretary of State William F. Galvin’s office, argued that arrests and mug shots should be withheld because they fall under a state Department of Criminal Justice Information Services regulation that defines the initiation of criminal proceedings as “the point when a criminal investigation is sufficiently complete that the investigating officers take action toward bringing a specific suspect to court.”
But Judge Douglas H. Wilkins wrote that court rules, case law, and dictionaries make it clear that criminal proceedings don’t actually begin until a criminal case is initiated through an indictment or issuance of a criminal complaint — typically well after a mug shot or police report is normally created. Moreover, Wilkins said the law did not give the state the power to broaden the scope of the statute to include arrest records and other events before a criminal case has formally begun in court. “Here, the legislative mandate specifically ‘restrict[s]’ the reach of any attempt to define CORI,” Wilkins ruled.
Wilkins also ruled that inmate booking logs are public records — even when people are jailed after a criminal case has formally begun — for a separate reason: The CORI statute specifically says anyone can obtain “information indicating custody status and placement within the correction system.” The judge also noted that the Department of Correction has already provided similar information to a private company, Appriss Inc., which in turn has set up a searchable database of inmate information on the Internet.
The judge, however, dismissed the case against the North Andover police department saying the case was moot because the Globe has since obtained the records and would not necessarily run into a similar dispute with the town in the future.
Wilkins noted that it is possible some law enforcement records could still be withheld under other exemptions in the law, such as one for domestic violence reports. But the judge noted that the departments did not claim those exemptions applied in this case.
The decision is the latest in a number of cases in which the Globe has successfully challenged in court a ruling by former supervisor of records Shawn Williams, the person in Galvin’s office charged with overseeing public records appeals. Williams stepped down a year ago to take a job handling public records requests for the City of Boston.
Coincidentally, the Legislature asked a working group of various officials to examine the exemptions, as well as the public interest in releasing law enforcement records, and the privacy interests in withholding certain records. That working group discussed the court ruling Friday. The group is expected to file a report with the Legislature by Dec. 30.
Rebecca Murray, who succeeded Williams as the supervisor of records, said she welcomed the “clarity provided by the court” about the status of police records and plans to issue a bulletin to government officials about the narrower interpretation of CORI.
Todd Wallack can be reached at firstname.lastname@example.org. Follow him on Twitter @twallack.