When and to what extent police investigation records are public records remain difficult questions to resolve. The Supreme Judicial Court recently analyzed how various exemptions in the law apply to such records. In Mack v. District Attorney for Bristol District, the plaintiff brought suit after the DA’s office withheld various records that the plaintiff requested relating to fatal police shooting of the plaintiff’s brother. The DA withheld some documents and redacted others, citing to the privacy exemption (G.L. c. 4, § 7, cl. Twenty-sixth (c)), the policy deliberation exemption (G.L. c. 4, § 7, cl. Twenty-sixth (d)), and the investigatory exemption (G.L. c. 4, § 7, cl. Twenty-sixth (f)).
First, the DA argued that it properly withheld crime scene photographs, home security videos, still images, names of officers and public officials, and videotaped public employee interviews under Exemption (c), the privacy exemption. The SJC, however, found that since these records fell within the “law enforcement misconduct investigation” carve-out to the privacy exemption, this exemption could not be used to withhold the records from disclosure. This was the case, the Court clarified, even though the investigation did not end with a finding that a law enforcement officer engaged in misconduct.
Next, the DA argued that Exemption (f), the investigatory exemption, protected videotaped interviews of police officers and paramedics because disclosing these interviews would chill prospective witnesses from agreeing to recorded interviews in the future and release of these interviews may reduce the likelihood that officers are completely candid when questioned. Because the SJC in prior cases had only considered these arguments as applied to private citizens, it remanded the case to the Superior Court to address whether the DA had met its burden of showing that release would unduly prejudice effective law enforcement or discourage voluntary and candid witness statements when the interviewees are specifically “public officials performing duties in their official capacity.”
Third, the DA claimed that three of the withheld documents were work product to which Exemption (d), the policy deliberation exemption, applied. However, the Court found that only portions of one of these documents, a draft report of the District Attorney’s office, fell within the exemption, as they contained discussions of the law and legal analysis that may “convey the ‘mental impressions, conclusions, opinions, or legal theories’ as to the criminal responsibility of the officers.” The redaction was proper even though the final report was released to the public. In contrast, a draft State Police homicide report and a “room summary,” which recounted the factual events leading to the decedent's death, contained only factual information and, therefore, could not be withheld under this exemption.
Finally, the DA argued that only the POST Commission could release the names of police officers in connection with any investigation, relying on the detailed requirements of G.L. c. 6E, §§ 1- 16, as impliedly superseding any obligation to produce those names under the Public Records Act. The SJC disagreed, finding no such exemption under the plain language of the statute.
