Supreme Judicial Court Rules in Favor of Transparency

Some personal honesty, first and foremost: MassTransparency is not a full-time gig for me, and it unfortunately means that when I get a little run down, it's the ancillary stuff that stands in the way. Thus the relative radio silence from these quarters as of late - mental exhaustion takes its toll. It didn't help that I had a host of pending reconsiderations with the Public Records Division of the Secretary of State's office citing Eric Mack v. District Attorney for the Bristol District despite the clear legal history. It's easy to go all "lol nothing matters" when it feels that way.

Today, however, is maybe the most important day for police transparency since the 2020 reform bill passed, and the most important day for police transparency in the courts in two decades, because the Supreme Judicial Court dropped its ruling in Eric Mack. To quote girl in red?

A general note for possible newcomers: I am not a lawyer, and I am reviewing this over lunch. I will likely have corrections as I move forward and read more, but my context on this is:

• What does this mean for transparency efforts overall?
• What does this mean for the POST records and the POST project?

I will say this much on an initial read: this is mostly great for transparency, with one exception. Whether this is good for Eric Mack remains to be seen. With all that said, let's dive in, shall we?

For my purposes regarding exemption (c) and public records, there are two critical points that went in favor of transparency.

1) Exemption (c) does not exempt police misconduct records

This is obvious to anyone who can read a plain English statute, but it is great to see it addressed directly. In Fall River, the police were using exemption (c) as a shield to withhold the names of the officers involved in the death of a suspect:

The district attorney's office argues that "[w]here the shooting was deemed to be justified in this death investigation under [G. L. c. 38, § 4], and no criminal prosecution ensued, the records are not 'law enforcement misconduct' records at all." Essentially, the district attorney's office asserts that unless an investigation ends in a finding that a law enforcement officer engaged in misconduct, the carve-out to the privacy exemption does not apply.

The SJC slapped that down pretty quick:

This contention of the district attorney's office finds no support in the language of the statute. General Laws c. 4, § 7, Twenty-sixth (c), provides, in relevant part, that the privacy exemption "shall not apply to records related to a law enforcement misconduct investigation."...

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."

Shorter: the plain language of the statute says law enforcement investigations are not exempt from disclosure because there's no carve out for disposition, and thus we apply the statute. This is big, because a major barrier for the POST Commission records was the disclosure of names of people without any findings or who were otherwise "exonerated." That brings us to the other major victory for transparency:

2) The POST Commission is not the exclusive body to release misconduct information

In one of the more twisted contortions regarding disclosure, many law enforcement officials argued, without any supporting evidence, that the legislation making such disclosures public record intended to make POST the sole arbiter:

The district attorney's office separately claims that the POST commission has exclusive authority under G. L. c. 6E, §§ 1 et seq., to release publicly the names of police officers in connection with any investigations, thereby taking such information out of the purview of the public records law.14 In support, the district attorney's office points to the level of detail within G. L. c. 6E, §§ 1 et seq., which it argues creates a clear implication that the Legislature intended the POST commission to be the exclusive avenue for members of the public to access law enforcement officers' names.

I think the common terminology for this was "pants-on-head crazy," if I'm being honest, but okay. Even taking it at face value, it's a reason that many departments don't want to disclose, right? SJC ain't having it:

We turn to the plain language of the statutory scheme at issue, which established the creation of the POST commission... Notably absent from this statutory scheme is any provision granting the POST commission exclusive authority to determine whether to release the names of officers involved in law enforcement misconduct investigations. "We do not read into the statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had the option to, but chose not to include" (citation omitted). Commonwealth v. Dones, 492 Mass. 291, 297 (2023). Based on the plain language of the statute, the statutory construction argument of the district attorney's office fails, and we need not proceed any further.

I feel like this was polite compared to what many of the justices believe, but I won't speculate further...

All and all? A good day for transparency.

What's keeping it from being a great day? One was alluded to in Chief Justice Kimberly Budd's concurrence at the end of the opinion:

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...

Presuming that disclosure would be detrimental to officer candor provides police departments (and other agencies) with a ready excuse to oppose the disclosure of information, which otherwise would be available to the public, based on a speculative, intangible, and largely unverifiable concern...

Transparency is especially critical in the context of community members' interactions with law enforcement...

Accordingly, I am doubtful of the arguments to that effect
raised by the district attorney's office and wary of embracing
the idea, despite its appearance in some of our cases.

This is in reference to the investigatory exemption (exemption (f)) relative to the interviews with law enforcement involved in the Fall River shooting. Exemption (f) is designed to ensure that citizen witnesses are protected for obvious reasons. Fall River and the District Attorney tried to apply this exemption to the interviews, claiming that officers would be less likely to sit for interviews were they to go public.

The SJC appears very skeptical of the argument put forth by the District Attorney ("we only have considered this factor for private individuals– not public officials performing duties in their official") but sent it back to the Superior Court to specifically address the investigatory exemption and make it part of this ruling. A majority of justices must not have felt there was enough information or discussion on this point (maybe contributing to the delay), but CJ Budd appears to have disagreed.

So what's next? I've already sent off my outstanding appeals to the Public Records Division citing this case, so I will hopefully have a full set of records within the next few weeks.

Then the real fun begins...

Jeff Raymond is a former columnist for the Millbury-Sutton Chronicle and Founding Editor of The Bramanville Tribune. He can be reached at jeff.raymond@masstransparency.org, on BlueSky at @jeffinmillbury.bsky.social, or on Twitter at @jeffinmillbury