Freedom of information – Public records law – Investigatory exemption

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Where a plaintiff requested certain records that relate to a fatal shooting, a remand is necessary for a determination whether the public records law’s investigatory exemption applies.

“In this action, the plaintiff, Eric Mack, has requested, pursuant to G.L.c. 66, §10 (public records law), certain records that relate to the fatal shooting of his brother, Anthony Harden (decedent). A judge in the Superior Court granted the plaintiff’s motion for summary judgment, mandating disclosure of the requested documents, absent a few minor exceptions. Seeking to prevent the disclosure of these records, the district attorney for the Bristol district (district attorney’s office) appealed from the judge’s order and asserts that each of the requested records is exempt from the definition of ‘public records’ under at least one of three enumerated exemptions: the privacy exemption, the policy deliberation exemption, and the investigatory exemption. … The district attorney’s office further argues that, pursuant to G.L.c. 6E, §§1 et seq., the Massachusetts Peace Officer Standards and Training Commission (POST commission) has exclusive authority to release officers’ names. For the following reasons, we affirm in part, reverse in part, and remand the case to the trial court for a determination whether the investigatory exemption applies to certain material. …

“General Laws c. 4, §7, Twenty-sixth (c), clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct. To require the investigation to end with a finding of police misconduct places the cart before the horse and runs counter to the goals of police accountability and transparency. Thus, the investigation into the shooting of the decedent in this case was a ‘law enforcement misconduct investigation.’ Accordingly, the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each ‘relate[] to a law enforcement misconduct investigation’ and may not be withheld under the privacy exemption. …

“Here, the district attorney’s office contends that disclosure of the videotaped public employee interviews would hamper investigation by discouraging witnesses — both private and public — from agreeing to video-recorded interviews in the future. …

“Although the district attorney’s office asserted this exemption before the motion judge, the judge did not address whether the investigatory exemption applied to these interviews. Therefore, we remand to the Superior Court to address whether the district attorney’s office has met its burden to show that the investigatory exemption applies. If the judge finds that the investigatory exemption applies to any record on remand, then the district attorney’s office may withhold that record even if another exemption does not apply. …

“Here, the district attorney’s office identifies three documents that it claims are work product to which the policy deliberation exemption applies: (1) a draft of the MSP homicide report, (2) a draft of the preliminary DAO report, and (3) the room summary. …

“… While the district attorney’s office has not met its burden of showing that the entire draft report is not a reasonably completed factual study or report, … the district attorney’s office has met its burden of showing that the policy deliberation exemption applies to the ‘Applicable Laws’ and ‘Conclusion’ sections of the draft report. These two sections are severable from the purely factual sections of the draft report. Therefore, the ‘Applicable Laws’ and ‘Conclusion’ sections of the draft report may be redacted, and the remaining factual sections of the report must be disclosed. …

“Because the ‘Applicable Laws’ and ‘Conclusion’ sections of the draft preliminary DAO report are exempt from disclosure, we reverse the motion judge’s order with respect to the mandated disclosure of these sections. We also reverse insofar as the order requires disclosure of the videotaped public employee interviews and the investigator’s interview questions, and we remand this case to the Superior Court for further proceedings to determine whether the investigatory exemption applies to the interviews or the investigator’s interview questions. In all other respects, the order and judgment in favor of the plaintiff are affirmed.”

Concurring judge’s comments

Budd, C.J. (concurring). “I agree that this matter should be remanded to allow the judge to address whether the investigatory exemption to the public records law applies to the videotaped interviews of public employees, an issue the judge did not address. … I write separately to note that although the district attorney for the Bristol district (district attorney’s office) argues that records of police interviews fall under the exemption because disclosure could disincentivize officers from being candid, attending to this concern is not in keeping with the letter or spirit of the public records law.”

Mack v. District Attorney for the Bristol District (Lawyers Weekly No. 10-049-24) (37 pages) (Gaziano, J.) (Budd, C.J., concurring) The case was heard by James Budreau, J., on a motion for summary judgment. Mary Lee for the defendant; Howard Friedman for the plaintiff; Graham D. Welch for Lawyers for Civil Rights Boston and others; the following submitted briefs for amici curiae: Rebecca Jacobstein, Mason A. Kortz, Jessica J. Lewis and Daniel L. McFadden for Andrew Quemere and others; Nick J. Erickson, of Colorado, Brian S. Fraser, of New York, and David Milton for National Police Accountability Project; Randall E. Ravitz for Massachusetts Peace Officer Standards and Training Commission; David E. Sullivan and Cynthia M. Von Flatern for district attorney for the northwestern district (Docket No. SJC-13468) (April 26, 2024).

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