1. Attorney General v. Assistant Com'r of Real Property Dept. of Boston.,
380 Mass. 623, 404 N.E.2d 1254, May 09, 1980
Attorney General brought suit to insure compliance with order of
supervisor of public records that records of long-distance
telephone calls from mayor's office be made available to public.
The Superior Court, Suffolk County, Ford, J., issued summary
judgment, ordering assistant commissioner of real property of city
to disclose only that portion of long-distance telephone calls
containing information on date, length of time and cost of each
long-distance phone call made during month, and specifically
excluding from disclosure area codes and telephone numbers of
persons engaged in such long-distance calls.
After review was sought in the Appeals Court,
the Supreme Judicial Court, on its own initiative, ordered direct
appellate review.
The Supreme Judicial Court, Hennessey, C. J., held that fact issue
existed as to whether disclosure would constitute an unwarranted
invasion of personal privacy, precluding summary judgment.
Judgment reversed, order vacated and case remanded.
West Headnotes
[1] KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k58 k. Personal Privacy Considerations in General;
Personnel Matters. Most Cited Cases
Provision of public records statute exempting from disclosure
materials which may constitute an unwarranted invasion of privacy
requires that the seriousness of any invasion of privacy be
balanced against public right to know; given statutory presumption
in favor of disclosure, exemptions must be strictly construed and
public right to know should prevail unless disclosure would
publicize intimate details of a highly personal nature.
M.G.L.A. c. 4, ง 7, subd. 26(c).
[2] KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k58 k. Personal Privacy Considerations in General;
Personnel Matters. Most Cited Cases
Types of personal information which "privacy" exception to public
records statute is designed to protect include marital status,
legitimacy of children, identity of fathers of children, medical
condition, welfare payments, alcoholic consumption, family fights
and reputation.
M.G.L.A. c. 4, ง 7, subd. 26(c).
[3] KeyCite Notes
228 Judgment
228V On Motion or Summary Proceeding
228k181 Grounds for Summary Judgment
228k181(15) Particular Cases
228k181(15.1) k. In General. Most Cited Cases
(Formerly 228k181(15))
In action to insure compliance with order to make records of
long-distance telephone calls from office of mayor available to
public, fact issue existed as to whether disclosure would
constitute unwarranted invasion of personal privacy, precluding
summary judgment ordering disclosure of only that portion of
records containing information on date, length of time and cost of
each long-distance call made during month and specifically
excluding from disclosure area codes and telephone numbers of
persons engaged in such long-distance calls.
M.G.L.A. c. 4, ง 7, subd. 26(c);
c. 66, งง 10, 10(b).
**1255 *623 Jonathan Brant, Asst. Atty. Gen., for plaintiff.
Marcia D. Seeler, Asst. Corp. Counsel, Newtonville, for defendant.
HENNESSEY, Chief Justice.
In this case we consider whether a judgment entered in the Superior
Court that the records of telephone calls from the office of the
mayor of Boston were subject to only partial disclosure under the
Massachusetts public records statutes was correct.
The case was decided upon a motion of the plaintiff for judgment
on the pleadings.
*624 We reverse, and remand the case to the Superior Court for a
hearing on the merits.
An employee of a Boston television station requested the defendant,
assistant commissioner of real property of the city of Boston,
pursuant to the public records law, G.L. c. 66, s 10, to provide
him with a record of all long distance telephone calls placed from
or charged to any telephones in the offices of the mayor of the
city of Boston during the month of February, 1977.
The requested information included the date, time, place called,
area code, telephone number, length of time and cost of each long
distance call made during the relevant time period.
The defendant refused to make the record available and the
applicant requested a ruling from the supervisor of public records
(supervisor), pursuant to G.L. c. 66, s 10(b ), that the requested
records are public records.
The supervisor issued an order that the requested long distance
telephone call records are public records and ordered the
defendant to make them available to the public.
The defendant did not comply with the supervisor's order.
The supervisor referred the matter to the Attorney General as
provided in G.L. c. 66, s 10(b ), and the Attorney General brought
suit in the Superior Court to insure compliance with
G.L. c. 66, s 10(b ).
The defendant answered that disclosure of the long distance
telephone call records would constitute an unwarranted invasion of
privacy pursuant to a specific exemption in the public records
law.
G.L. c. 4, s 7, Twenty-sixth (c ).
After the defendant answered, the Attorney General moved for
judgment on the pleadings.
The motion was heard before a master who recommended rulings
similar to those ultimately issued by the court.
A judge of the Superior Court subsequently issued a summary
judgment, finding no genuine issue as to material fact, and
ordering the defendant to disclose only that portion of the long
distance telephone call records containing information on the
date, length of time and cost of each long distance call made
during the month of February, 1977.
In addition, the judgment *625 specifically excluded from
disclosure the area codes and telephone numbers of persons engaged
in such long distance calls.
It is from this portion of the judgment which the Attorney General
now appeals.
General Laws c. 66, s 10, as amended through St.1976, c. 438, s 2,
which sets forth the procedure for seeking a public record,
establishes
"a presumption that the record sought is public" and places
"the burden . . . upon the custodian to prove with specificity the
exemption which applies."
G.L. c. 66, s 10(c ).
This statute thus places the burden of persuasion on the custodian
of the records to demonstrate that the records sought come within
some specific statutory exemption to the general rule of public
disclosure.
**1256 Bougas v. Chief of Police of Lexington,
371 Mass. 59, 62, 354 N.E.2d 872 (1976).
The defendant here, in arguing that the judgment below was
correct, relies upon the definition of "public records" contained
in G.L. c. 4, s 7, Twenty-sixth, as amended through St.1979, c. 230,
and more particularly the words in part (c ) of that clause, which
exempt from disclosure
"any other materials or data relating to a specifically named
individual, the disclosure of which may constitute an unwarranted
invasion of personal privacy."
The master, in his recommendation to the Superior Court, found
that disclosure of area codes and telephone numbers might
constitute such an unwarranted invasion of privacy.
(1) (2) Analysis under exemption (c ) requires that the seriousness
of any invasion of privacy be balanced against the public
right to know. [FN1]
Attorney Gen. v. Collector of Lynn,
--- Mass. ---, --- [FNa],
385 N.E.2d 505 (1979);
Hastings & Sons Publishing Co. v. City Treasurer of Lynn,
--- Mass. ---, --- n.8 [FNb],
375 N.E.2d 299 (1978).
Given the statutory presumption in favor of disclosure, exemptions
must be strictly construed.
Attorney Gen. v. Assessors of Woburn,
--- Mass. --- [FNc],
378 N.E.2d 45 (1978).
The public right to know should prevail unless disclosure would
publicize "*626 intimate details" of "a highly personal nature."
Attorney Gen. v. Collector of Lynn,
--- Mass. supra at --- [FNd],
385 N.E.2d 505.[FN2]
FN1. This balancing process parallels that required by analogous
Federal law.
See Department of the Air Force v. Rose,
425 U.S. 352, 372-373, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976);
Columbia Packing Co. v. United States Dep't of Agriculture,
417 F.Supp. 651, 654 (D.Mass.1976),
aff'd,
563 F.2d 495 (1st Cir. 1977).
FNa. Mass.Adv.Sh. (1979) 191, 197.
FNb. Mass.Adv.Sh. (1978) 920, 927 n.8.
FNc. Mass.Adv.Sh. (1978) 1586.
FNd. Mass.Adv.Sh. (1979) at 198.
FN2. The Federal courts have consistently held that the comparable
privacy exemption under Federal law relates only to disclosure of
"intimate details" of a "highly personal" nature.
Getman v. N. L. R. B.,
450 F.2d 670, 675 (D.C.Cir.1971).
The types of personal information which the privacy exemption is
designed to protect include
"marital status, legitimacy of children, identity of fathers of
children, medical condition, welfare payments, alcoholic
consumption, family fights (and) reputation."
Rural Hous. Alliance v. United States Dep't of Agriculture,
498 F.2d 73, 77 (D.C.Cir.1974);
Joseph Horne Co. v. N. L. R. B.,
455 F.Supp. 1383, 1386 (W.D.Pa.1978);
Pacific Molasses Co. v. N. R. L. B. Regional Office # 15,
577 F.2d 1172, 1182 (5th Cir. 1978),
(union authorization cards fall within privacy exemption based on
"strong privacy interest (of employees) in their personal
sentiments regarding union representation").
(3) From these principles the Attorney General argues that
information is sought here for the purpose of monitoring the
expenditure of public monies by public officials, and that the
judgment of the Superior Court implicitly recognized the
validity of that purpose in ordering the disclosure of the
portion of the records pertaining to the date, time and cost of
each call.
However, the argument continues:
(1) without area codes and telephone numbers, this information
does not provide an adequate basis for assessing the
reasonableness of the expense to the public for each call, and
(2) the public interest in monitoring such expenditures outweighs
the interest in privacy, if any, which may apply to persons
involved in long distance telephone communications with the
mayor's office.
In pursuing the latter point, the Attorney General asserts that
there can be no substantial expectation of privacy in one who
allows the listing of a number in a telephone book, or gives out
an unlisted number to certain persons, or indeed merely subscribes
for a telephone in the face of common knowledge that the long
distance calls will be recorded by the telephone company.
Cases concerning expenditures for public salaries,
Hastings & Sons Publishing Co. v. City Treasurer of Lynn,
supra --- Mass. at ---- [FNe],
375 N.E.2d 299
and records of tax delinquents,
Attorney Gen. v. Collector of Lynn,
supra --- Mass. at --- [FNf],
385 N.E.2d 505 are cited as examples in which the public right to
**1257 know about public expenditures outweighed embarrassment to
certain persons.
FNe. Mass.Adv.Sh. (1978) at 927.
FNf. Mass.Adv.Sh. (1979) at 191.
*627 The defendant, on the other hand, argues that the judge
properly applied the balancing test and fashioned a judgment which
fairly recognized the two competing interests.
He argues briefly the "chilling effect" upon the mayor's office in
the operation of its business.
However, the main thrust of his argument is that there is a
genuine "expectation of confidentiality" in cases where persons
receive unsolicited telephone calls; that revelation of telephone
numbers can in turn result in harassment of the subscribers by
investigators, and that the language of
Attorney Gen. v. Collector of Lynn, supra, requires that the
public interest in obtaining information must
"substantially outweigh" the seriousness of any invasion of
privacy before the private interest will be ordered to yield.
The contents of the opposing arguments, based as they must be on
various hypotheses, suggest almost inevitably the need for a
hearing on the merits of this case.
For example, while good and sufficient reason for protecting area
codes may have been suggested to the master or the judge, no such
reason has been suggested to this court.
This issue should be examined factually, as should many other
circumstances.
The present theoretical arguments will be aided by an inquiry into
such matters as the identification of those who have access to the
use of the telephones in the mayor's office, and characterization
of the numbers called, whether listed or unlisted, individual,
corporate or public agency.
An orderly effort must be made to divide calls into categories of
public business and personal matters.
As to the former category, the burden is on the defendant to show
that the calls are exempted under the law.
If any calls are in the latter category, further inquiry may be
precluded if it is established that they were not paid for out of
public funds.
Such facts should assist the Attorney General in constructing a
more specifically reasoned request, and should assist all
concerned in an equitable balancing of the opposing interests, as
required by the law.
It may well be that some helpful and manageable method of in
camera inspection of records by the judge may be devised.
Cf. Attorney Gen. v. School *628 Comm. of Northampton,
127 Mass. 375 [FNg],
375 N.E.2d 1188 (1978);
Mobil Oil Corp. v. F. T. C.,
430 F.Supp. 849, 852 (S.D.N.Y.1977).
FNg. Mass.Adv.Sh. (1978) 1108.
We add that, although the parties have argued constitutional
issues, we perceive no showing, in the circumstances so far
disclosed, that there is any constitutional protection for the
telephone subscribers here concerned, in so far as numbers and
area codes are concerned.
Cf. Opinion of the Justices,
--- Mass. ---, --- [FNh],
376 N.E.2d 810 (1978);
Getman v. N. L. R. B.,
450 F.2d 670, 675 (D.C.Cir.1971);
Disabled Officer's Ass'n v. Rumsfeld,
428 F.Supp. 454, 458 (D.D.C.1977)
(disclosure of names and addresses is very low degree of disclosure);
Buckley v. Valeo,
424 U.S. 1, 84, 96 S.Ct. 612, 665, 46 L.Ed.2d 659 (1976)
(no constitutional infirmity in requirement of reports, which are
disclosed to public, containing name, address, occupation and
place of business of each contributor of over $100 to political
campaign).
FNh. Mass.Adv.Sh. (1978) 1116, 1129.
The judgment is reversed, the Superior Court order is vacated, and
the case is remanded to the Superior Court for a hearing on the
merits.
So ordered.
Mass., 1980.
END OF DOCUMENT
Copr. (C) West 2002 No Claim to Orig. U.S. Govt. Works
2. Attorney General v. Board of Assessors of Woburn,
375 Mass. 430, 378 N.E.2d 45, Jun 19, 1978
The Massachusetts Attorney General instituted an action to require
a city board of assessors to give homeowners access to
"field assessment cards" prepared by a private contractor to
assist the assessors in reassessing real properties in the city.
The Superior Court, Middlesex County, Mitchell, J., entered
judgment declaring the field cards to be public records and
requiring them to be made available to the public, and direct
appellate review was granted.
The Supreme Judicial Court, Kaplan, J., held that the superior
court's conclusion was correct.
Affirmed.
West Headnotes
KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k54 k. In General. Most Cited Cases
(Formerly 326k14)
Field assessment cards prepared by private contractor to assist
city board of assessors in reassessing real properties within
city's boundaries at 100% of their fair market value were
"public records" subject to public disclosure.
M.G.L.A. c. 4 ง 7, subds. 26, 26(c, d, f); c. 66 งง 10, 10(a).
**45 *430 Jonathan Brant, Asst. Atty. Gen., for plaintiff.
Normand R. D'Amour, Lowell, for defendant.
KAPLAN, Justice.
Seeking to comply with the decision in
Sudbury v. Commissioner of Corps. & Taxation,
366 Mass. 558, 321 N.E.2d 641 (1974), the defendant board of
assessors of Woburn engaged a private company to assist in
reassessing the real properties within the boundaries of the city
at 100% of their fair market value.
Employees of the company inspected the properties, collated
relevant data, and recommended valuations.
The details, physical and financial, together with the inferences
drawn from them, were posted by the company employees on
standardized "field assessment cards."
These were turned over to the board as part of the work contracted
for, to be used by the board in preparing the actual *431 tax
valuations placed on the properties.
Although, as indicated, the Sudbury case called for reassessment
on the 100% basis, there was no legal requirement that the board
go about the task by engaging a private company or by using field
cards.
On May 19, 1977, one John DiFranza, a resident of the city, wrote
to the chairman of the board asking for a copy of the field card
covering his home.
He referred to the public records law
(G.L. c. 4, s 7, Twenty-sixth).
On the same day the chairman replied, denying the request under
the claimed authority of
Dunn v. Assessors of Sterling,
361 Mass. 692, 282 N.E.2d 385 (1972).
Thereupon, DiFranza, initiating the prescribed statutory
procedures (G.L. c. 66, s 10), applied to the supervisor of public
records (see G.L. c. 9, s 4) for a determination that the cards
were public records under the law and thus subject to inspection
and copying.
The supervisor on June 22, 1977, made a favorable determination,
setting forth his reasons in some detail, and ordered the board to
make disclosure accordingly.
As the board failed to comply, the supervisor requested the
Attorney General, plaintiff herein, to commence an appropriate
enforcement action.
The Attorney General did so in this court for Suffolk County.
A single justice ordered the action transferred to the
Superior Court.
There the parties entered into "stipulations of fact" describing
the situation as set out **46 above.
A judge of the Superior Court held for the plaintiff and entered
judgment declaring that the field cards were public records and
requiring the defendant board to make them available to the
public.
After the defendant lodged its appeal in the Appeals Court, the
plaintiff (appellee) applied to this court for direct appellate
review, which we granted.
Under G.L. c. 4, s 7, Twenty-sixth, as appearing in
St.1973, c. 1050, s 1, public records
"shall mean all . . . papers . . . or other documentary materials
or data, regardless of physical form or characteristics, made or
received by any . . . board . . . of any political subdivision,"
with nine *432 stated exemptions.[FN1]
General Laws c. 66, s 10, as amended through St.1976, c. 438, s 2,
in effect lays a duty on persons having custody of
"public records," as defined, to disclose them on request of
"any person" (s 10(a )), describes procedures for enforcing the
duty, which comprehend the procedure followed here (s 10(b )), and
adds that
"(i)n any court proceeding pursuant to paragraph (b ) there shall
be a presumption that the record sought is public, and the burden
shall be upon the custodian to prove with specificity the
exemption which applies" (s 10(c )).
FN1. The full text of cl. Twenty-sixth (before the listing of
exemptions) is:
" 'Public records' shall mean all books, papers, maps,
photographs, recorded tapes, financial statements, statistical
tabulations, or other documentary materials or data, regardless
of physical form or characteristics, made or received by any
officer or employee of any agency, executive office, department,
board, commission, bureau, division or authority of the
commonwealth, or of any political subdivision thereof, or of any
authority established by the general court to serve a public
purpose, unless such materials or data fall within the following
exemptions in that they are: . . . ."
The cards in question appear to fall partly within the current
statutory definition (unless one or more of the exemptions
applies), but the defendant board points to our decision in the
Dunn case, supra.
There the board of assessors of Sterling was upheld in its refusal
to disclose field cards produced under contract with a private
firm which had been engaged to assist it in making tax
assessments.
The facts correspond with the present case, but the difference is
that the part of G.L. c. 4, s 7, Twenty-sixth, considered
pertinent by the Dunn court, as it then stood i. e., as amended
through St.1969, c. 831, s 2, before amendment by the 1973 statute
made the right to disclosure turn on whether the record
"has been made or is required to be made by law."
This could not be predicated of the cards, which were a means of
assisting the board in making assessments, but not a means
required by law.
See also Town Crier, Inc. v. Chief of Police of Weston,
361 Mass. 682, 282 N.E.2d 379 (1972);
Hardman v. Collector of Taxes of N. Adams,
317 Mass. 439, 58 N.E.2d 845 (1945).
Cf. Lord v. Registrar of Motor Vehicles,
347 Mass. 608, 611, 199 N.E.2d 316 (1964).
*433 On the assumption that the authority of the Dunn case is
erased by the new statutory provisions, the defendant board
suggests that the exemption of par. (f ) of cl. Twenty-sixth for
"investigatory materials" may attach; but the irrelevance of par.
(f ) appears clearly from its text [FN2] and from the case of
Bougas v. Chief of Police of Lexington,
--- Mass. --- [FNa],
354 N.E.2d 872 (1976),
where the exemption was explained and applied. [FN3]
Of the other statutory exemptions, par. (c ), referring to
disclosures that involve unwarranted invasions of privacy, and
par. (d ), dealing with certain intra-agency memoranda,
conceivably might be thought pertinent, but on consideration they
also are seen to be irrelevant.[FN4]
FN2. Paragraph (f ) exempts
"investigatory materials necessarily compiled out of the public
view by law enforcement or other investigatory officials the
disclosure of which materials would probably so prejudice the
possibility of effective law enforcement that such disclosure
would not be in the public interest."
FNa. Mass.Adv.Sh. (1976) 2236.
FN3. The materials held exempt under par. (f ) consisted of reports
of police officers about an incident which had led to pending
criminal charges.
FN4. Clause Twenty-sixth, par. (c ), exempted
"personnel and medical files or information; also any other
materials or data relating to a specifically named individual,
the disclosure of which may constitute an invasion of personal
privacy"
(by St.1977, c. 691, s 1, effective October 29, 1977, the word
"unwarranted" was inserted before the word "invasion").
See Hastings & Sons Publishing Co. v. City Treasurer of Lynn,
374 Mass. 812, 375 N.E.2d 299 (1978)
(Mass.Adv.Sh. (1978) 920).
Cf. Attorney Gen. v. School Comm. of Northampton,
375 Mass. 127, 375 N.E.2d 1188 (1978)
(Mass.Adv.Sh. (1978) 1108).
See also DeLia v. Kiernan,
119 N.J.Super. 581,
293 A.2d 197,
petition for cert. denied,
62 N.J. 74,
299 A.2d 72 (1972).
Paragraph (d ) exempts
"inter-agency or intra-agency memoranda or letters relating to
policy positions being developed by the agency; but this
subparagraph shall not apply to reasonably completed factual
studies or reports on which the development of such policy
positions has been or may be based."
Cf. Kottschade v. Lundberg,
280 Minn. 501, 160 N.W.2d 135 (1968).
**47 Our conclusion is not put in question, rather it is
strengthened, by the several decisions in other jurisdictions about
the disclosure of field cards. [FN5]
Finally, it is possible to foresee *434 administrative burdens that
will result from the classification of such cards as public
records, but those difficulties may be eased by the language of
c. 66, s 10(a ) (disclosure "at reasonable times and without
unreasonable delay"), and in any event could not be allowed to
compromise the plain terms of the statutes.
FN5. Field cards were ordered disclosed in
Gold v. McDermott,
32 Conn.Super. 583, 347 A.2d 643 (1975);
Menge v. Manchester,
113 N.H. 533, 311 A.2d 116 (1973) (distinguishing our Dunn case);
Tagliabue v. N. Bergen,
9 N.J. 32, 86 A.2d 773 (1952);
DeLia v. Kiernan, supra;
Matter of Sanchez v. Papontas,
32 A.D.2d 948, 303 N.Y.S.2d 711 (N.Y.1969).
A contrary result was reached in Kottschade v. Lundberg, supra.
To evaluate the decisions fairly, the particular statutory or
common law background must be consulted.
Judgment affirmed.
Mass.,1978.
END OF DOCUMENT
Copr. (C) West 2002 No Claim to Orig. U.S. Govt. Works
3. Reinstein v. Police Com'r of Boston,
378 Mass. 281, 391 N.E.2d 881, 5 Media L. Rep. 1875, Jun 19, 1979
Attorney brought action against Boston police department and its
police commissioner to secure access to police firearms discharge
reports.
The Superior Court, Suffolk County, Young, J., entered summary
judgment for commissioner and for police department, and attorney
appealed.
The Supreme Judicial Court, Kaplan, J., held that:
(1) exemption of police investigatory materials from disclosure
under statute providing for general disclosure of public
records does not stand as blanket exemption preventing
disclosure of all police firearms discharge records;
(2) police record as to which privacy exemption to disclosure
statute may have some application is not necessarily to be
withheld in its entirety; and
(3) records of firearms discharge reports kept by city police
department were not subject to blanket exemption from
disclosure because they may have contained criminal offender
record information.
Judgment vacated; case remanded with instructions.
West Headnotes
[1] KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k60 k. Investigatory or Law Enforcement Records. Most Cited
Cases
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k61 Proceedings for Disclosure
326k62 k. In General; Request and Compliance. Most Cited Cases
Statute providing for disclosure of public records does not exempt
all materials relating to police investigations; instead it
invites case-by-case consideration of whether access would
probably so prejudice possibility of effective law enforcement
that such disclosure would not be in the public interest, and fact
that some exempt material may be found in a document or report of
an investigatory character does not justify cloture as to all of
it.
M.G.L.A. c. 4 ง 7, subd. 26(f).
[2] KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k60 k. Investigatory or Law Enforcement Records. Most Cited
Cases
Exemption of police investigatory materials from disclosure under
statute providing for general disclosure of public records does
not stand as blanket exemption from disclosure of all police
firearms discharge records.
M.G.L.A. c. 4 ง 7, subd. 26(f).
[3] KeyCite Notes
410 Witnesses
410III Examination
410III(D) Privilege of Witness
410k298 k. Privilege as to Production of Documents. Most Cited
Cases
Where a police officer would be required to make an incident report
or to respond to questions in course of a firearms investigation,
on pain otherwise of losing his job, but he could not be
prosecuted criminally on basis of such information he supplied,
public disclosure of the officer's avowals as to firearms
discharge would not violate his Fifth Amendment rights.
M.G.L.A. c. 4 ง 7, subd. 26(c);
U.S.C.A.Const. Amend. 5.
[4] KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k61 Proceedings for Disclosure
326k64 k. Discretion and Equitable Considerations;
Balancing Interests. Most Cited Cases
In determining whether disclosure of material in police firearms
discharge report would constitute invasion of officer's personal
privacy thus exempting such report from disclosure under statute
providing for disclosure of public records, prospective invasion
of individual's privacy is to be weighed in each case against
public interest in disclosure.
M.G.L.A. c. 4 ง 7, subds. 26, 26(c); c. 66 ง 10(a).
[5] KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k58 k. Personal Privacy Considerations in General;
Personnel Matters. Most Cited Cases
Police record as to which privacy exemption to statute requiring
disclosure of public records generally may have some application
is not necessarily to be withheld in its entirety.
M.G.L.A. c. 4 ง 7, subds. 26, 26(c); c. 66 ง 10(a).
[6] KeyCite Notes
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k58 k. Personal Privacy Considerations in General;
Personnel Matters. Most Cited Cases
Records of firearms discharge reports kept by city police
department were not subject to blanket exemption from disclosure
under statute providing for disclosure of public records
generally, because they may have contained criminal offender
record information.
M.G.L.A. c. 4 ง 7, subds. 26, 26(a, f);
c. 6 งง 167, 172;
c. 66 ง 10(a, b).
**882 *282 John Reinstein, Boston, pro se.
Nicholas Foundas, Boston, for defendants.
William B. Vernon, Marshfield, for intervener.
*282 KAPLAN, Justice.
In this action, under statute, the plaintiff Mr. John Reinstein
sought to compel the defendants Boston police department and the
police commissioner of Boston to provide him with access to
certain departmental records.
A judge of the Superior Court, upon cross-motions for summary
judgment, denied all relief and directed entry of judgment for the
defendants.
From that judgment the plaintiff appealed, and we brought the case
here on our own motion.
As we believe the plaintiff may be entitled to access to some
parts of the records he requested, we shall reverse the judgment
for further proceedings below.
We begin by indicating how the records in question were created
and of what, in general, they consist.
The records have to do with the discharge of weapons by police
officers otherwise than under training or practice conditions.
The department's rule 35, which governed from 1950 to 1974,
justified discharge of a revolver by an officer in order to defend
himself or others from death or serious injury, or to arrest or
prevent the escape of a person who had committed a felony in the
officer's presence, or to bring about certain other results; but
the rule prohibited use of the weapon to aid in the arrest or stop
the flight of one who had merely committed a misdemeanor.
An officer who discharged a weapon
"except when practicing with it" was required to inform his
commanding officer, who in turn was to submit a written report of
the incident to the superintendent, including an account of the
circumstances, the injury if any inflicted, the care given to the
injured, and the names of the officer and others involved.
*283 Stricter standards for the use of deadly force under
"street conditions," [FN2] together with more elaborate
requirements for the reporting and investigation of incidents,
came in with rule 303, adopted by the department in 1974.[FN3]
We provide a brief summary.
An officer may discharge a firearm
"(t)o defend himself or another (person) from an unlawful attack
which he has reasonable cause to believe could result in death or
great bodily injury"; also
"(t)o apprehend a fleeing felon when the officer knows, as a
virtual certainty, . . . that the subject has committed a felony
during the commission of which he inflicted or threatened to
inflict deadly force upon the victim, and . . . that there is
substantial risk that the felon in question will cause death or
great bodily injury if his apprehension is delayed."
Use of warning shots is restricted as is firing at moving
vehicles.
FN2. Defined as
"all those in which an officer is rendering police services, as
opposed to attending a training course, maintaining equipment, or
engaging in purely administrative functions which do not bring
him into public contact."
FN3. The Boston police department is one of a number around the
country that have adopted restrictions on the use of deadly force
similar to those set forth in the Model Penal Code ss 3.04 3.11
(Proposed Official Draft 1962).
See Comment,
Deadly Force to Arrest: Triggering Constitutional Review,
11 Harv.C.R.-C.L.L.Rev. 361, 370 n. 42 (1976).
In recent years there has been extensive commentary on the
subject.
See Id.;
Note, Justification: The Impact of the Model Penal Code on Statutory Reform,
75 Colum.L.Rev. 914 (1975);
Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey,
12 Wm. & Mary L.Rev. 67 (1970);
Note, Justification for the Use of Force in the Criminal Law,
13 Stan.L.Rev. 566 (1961).
To monitor compliance with standards, and to subject standards to
intelligent criticism with a view to their possible
amendment,[FN4] rule 303 requires various reports and **883
investigations of shooting incidents.
The officer submits *284 a detailed "incident report",[FN5]
whereupon his commanding officer initiates an investigation of the
event conducted, usually, by the officer's immediate supervisor.
This eventuates in a report of findings to the commanding officer,
who presents this report with his own recommendations to the
police commissioner.
All this must occur within twenty-four hours of the incident.
In case a person has been wounded or killed, there is a
supplemental investigation and report by the internal affairs
division of the department.
Final review is carried out by a
"firearms discharge review board" of seven members: all are
departmental officials or police officers of whom two officers are
designated by the officer concerned in the incident.
On the basis of the several reports and its independent
investigation, the board makes findings regarding compliance with
regulations by all concerned, and presents ultimate
recommendations.
Receiving this report, the commissioner may return it for any
further consideration or report.
He retains authority for final departmental disposition of the
case.
All the reports mentioned are lodged with the commissioner, the
divisions of internal affairs and personnel, the ballistician, and
the chairman of the review board
(who is the superintendent- in-chief).
FN4. According to the commissioner's affidavit, some members of the
command staff thought the restrictions of rule 303 were excessive,
and a "firearms discharge review board" (mentioned below) was
established as part of the rule so that amendments could be
generated if necessary.
FN5. Among other things, the report is to state why the officer
used the weapon, how many rounds he fired, whether he was on or
off duty, and, where he fired at another person, the distance to
that person, the number of rounds fired by the latter, and who
fired first.
To return to the immediate facts:
The plaintiff, an attorney serving the Massachusetts Civil
Liberties Union, on February 1, 1977, wrote to the custodian of
records of the Boston police department requesting permission to
inspect and copy the records (meaning essentially the reports)
relating to the discharge of firearms by Boston police officers
during the period 1972 to 1976. [FN6]
He cited *285 G.L. c. 66, s 10(A ), which refers to
"any public record," as defined compendiously, with stated
exceptions, in
G.L. c. 4, s 7, Twenty-sixth. [FN7]
Promptly the custodian denied the request, claiming exemption under
four clauses of the latter text.
The plaintiff then asked the Supervisor of Public Records to
intercede (see G.L. c. 66, s 10(B ), as appearing in St.1976,
c. 438, s 2),[FN8] but, after in camera inspection by members of
his staff, the Supervisor replied **884 by letter that the records
were exempt from disclosure because they contained criminal
offender record information (CORI) as defined in G.L. c. 6, s 167
(and see s 172), and so were
"specifically . . . exempted from disclosure by *286 statute"
(G.L. c. 4, s 7, Twenty-sixth, (A )), and were further exempt
because they contained "investigatory materials"
(Id., (F )).
The Supervisor said, however, that access to a specific report
might be proper if any CORI was deleted and it appeared that
disclosure would not impede effective law enforcement.
FN6. The plaintiff did not seek the reports made by the internal
affairs division or any reports relating to pending investigations
or prosecutions.
FN7. General Laws c. 66, s 10(A ), as appearing in St.1978, c. 294,
provides,
"Every person having custody of any public record, as defined in
clause Twenty-sixth of section seven of chapter four, shall, at
reasonable times and without unreasonable delay, permit it, or
any segregable portion of a record which is an independent public
record, to be inspected and examined by any person, under his
supervision, and shall furnish one copy thereof upon payment of a
reasonable fee.
Every person for whom a search of public records is made shall,
at the direction of the person having custody of such records,
pay the actual expense of such search."
General Laws c. 4, s 7, Twenty-sixth, as appearing in
St.1973, c. 1050, s 1, contains the general definition:
" 'Public records' shall mean all books, papers, maps,
photographs, recorded tapes, financial statements, statistical
tabulations, or other documentary materials or data, regardless
of physical form or characteristics, made or received by any
officer or employee of any agency, executive office, department,
board, commission, bureau, division or authority of the
commonwealth, or of any political subdivision thereof, or of any
authority established by the general court to serve a public
purpose."
Several exceptions follow.
We quote certain of them, as relevant, below.
FN8. Section 10(B ) states in pertinent part:
"If the custodian refuses or fails to comply with such a request,
the person making the request may petition the supervisor of
records for a determination whether the record requested is
public.
Upon the determination by the supervisor of records that the
record is public, he shall order the custodian of the public
record to comply with the person's request.
If the custodian refuses or fails to comply with any such order,
the supervisor of records may notify the attorney general or the
appropriate district attorney thereof who may take whatever
measures he deems necessary to insure compliance with the
provisions of this section."
In May, 1977, the plaintiff commenced the present action pursuant
to G.L. c. 66, s 10(B ),[FN9] to secure access to the
1972-1976 records.
The defendants answered claiming sundry exemptions, and the Boston
Police Patrolmen's Association intervened on the defendants' side.
In due course the plaintiff served interrogatories under
Mass.R.Civ.P. 33, 368 Mass. 906- 907 (1975), intended to elicit
information about the structure and contents of the firearms
reports.
The defendants tendered some information,[FN10] but they objected
to most of the interrogatories, primarily on the ground that they
called for information whose exempt character was at issue in the
case.
At this point the plaintiff moved to compel answers to the
unanswered interrogatories and, alternatively, to require the
defendants to itemize and index the records and give detailed
justification for the asserted exemptions. [FN11]
The plaintiff moved also for summary judgment on the theory that,
with records presumptively public and subject to disclosure (see
G.L. c. 66, s 10(C )), no adequate defense had been raised to the
claim for access.
Cross- moving for summary judgment, the defendants annexed an
affidavit of the commissioner in which he asserted that the
records contained CORI, *287 and that disclosure would discourage
witnesses from coming forward during investigations and would
inhibit frank discussion by investigating officers. Attached was
the letter of the Supervisor of Public Records.[FN12]
The plaintiff responded by an affidavit invoking
Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974)
("When Affidavits are Unavailable"), and stating that he was not
able to meet the commissioner's representations because the
relevant material was under the defendants' exclusive control.
FN9. "If a custodian of a public record refuses or fails to comply
with the request of any person for inspection or copy of a
public record or with an administrative order under this
section, the supreme judicial or superior court shall have
jurisdiction to order compliance."
FN10. As indicated below, the defendants set out the names of
persons killed or injured in the incidents.
FN11. The latter motion was styled on that discussed in
Vaughn v. Rosen,
157 U.S.App.D.C. 340, 484 F.2d 820 (1973),
cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974),
cited below.
FN12. The letter had previously been annexed to the defendants'
answer and was ordered struck therefrom on the plaintiff's motion.
As noted, the judge granted summary judgment for the defendants.
He said it was undisputed that the records contained CORI
(the subdivision (A ) exemption).
Further, the commissioner's "uncontroverted affidavit" indicated
that the records constituted investigatory materials which might
lead to intradepartmental discipline (subdivision (F )).
Doubts on that score, according to the judge, were removed by the
Supervisor's letter which was entitled to "great weight." [FN13]
The judge said that his award of summary judgment "mooted" the
plaintiff's motions to compel answers to interrogatories and for
indexing and so he did not consider them further.
FN13. Because the case calls plainly for remand to consider
segregation of nonexempt material, we need not dwell at length on
the precise weight to be given the Supervisor's view.
But we note that
"the administrative remedy (of application to the Supervisor)
provided by this section (does not) in any way limit the
availability of judicial remedies" (s 10(B )), that the
Supervisor's staff acted in camera, and that no review of the
Supervisor's opinion was available to the plaintiff.
The judge's memorandum with order for judgment was dated
June 30, 1978; judgment entered on July 3, 1978.
It is perhaps of interest that there was no mention of the **885
approval on June 27, 1978, of an amendment of s 10(A ) making
clear what may not have been entirely evident before,[FN14]
namely, that the right to access extended to any *288 nonexempt
"segregable portion" of a public record.
St.1978, c. 294.[FN15]
The amendment parallels a 1974 amendment of the Federal Freedom of
Information Act.[FN16]
It is applicable to the present dispute.
See Lee Pharmaceuticals v. Kreps,
577 F.2d 610, 614 (9th Cir. 1978),
and cases cited.
FN14. Federal and State cases, however, had ordered disclosure of
segregable nonexempt portions of public records even in the
absence of specific statutes authorizing segregation.
See Vaughn v. Rosen,
157 U.S.App.D.C. 340, 345, 484 F.2d 820, 825 (1973);
Soucie v. David,
145 U.S.App.D.C. 144, 156, 448 F.2d 1067, 1079 (1971);
Bristol-Myers Co. v. F. T. C.,
138 U.S.App.D.C. 22, 25-26, 424 F.2d 935, 938-939 (1970);
Montes v. State,
94 Misc.2d 972, 406 N.Y.S.2d 664 (N.Y.1978).
FN15. The 1978 amendment requires disclosure of
"any segregable portion of a record which is an independent public
record," that is, any portion that falls within the statutory
definition of "public record" after exempt portions have been
deleted.
FN16. See 5 U.S.C. s 552(b)(7) (Supp. IV 1974):
"Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the
portions which are exempt under this subsection."
We cannot answer here and now whether there are nonexempt
segregable portions of the firearms records, or, if so, what these
portions are.
But the questions arise quite naturally and should be pursued on
remand.
The defendants themselves in answer to interrogatories disclosed
not only the number of persons injured or killed in the relevant
incidents, but also their names.
One can surmise by reference to rules 35 and 303 that the firearms
records probably contain other information whose disclosure would
be of considerable public interest and would offend no legitimate
interest on the part of the government or private citizens.
By way of illustration and again we speculate, we do not decide
consider so much of the records as would disclose, for each of the
years, the number, times, and places of incidents; number of
incidents in which police fired first, or fired only after weapons
had been fired by others; number of incidents in which violations
were found at the several levels of investigation; classifications
of violations and number per class; number of recommendations of
disciplinary action *289 at the several levels; number of officers
in fact disciplined; substance of any recommendations for changes
in the rules.
(Such data would permit comparisons as between the periods before
and after adoption of rule 303.)
It remains, first, to point out more specifically that none of the
claimed exemptions from disclosure stands as a blanket exemption
for the firearms records, especially when the statutory amendment
is taken into account, and, second, to indicate how the parties
and the judge are to proceed on remand.
[1] [2] 1. Exemptions. (a) Investigatory materials.[FN17]
In Bougas v. Chief of Police of Lexington,
371 Mass. 59, 354 N.E.2d 872 (1976), the plaintiffs
sought access to reports of the Lexington police and
letters to the police from private citizens regarding
an incident that resulted in misdemeanor charges
against several of the plaintiffs.
Holding against access (and this notwithstanding the fact that the
investigation had been concluded), we said the exemption for
investigatory materials aimed at
"the avoidance of premature disclosure of the Commonwealth's case
prior to trial, the prevention of the disclosure of confidential
investigative techniques, procedures, or sources of information,
the encouragement of individual citizens to come forward and speak
freely with police concerning matters under investigation, and the
creation of initiative that police officers might be completely
candid in recording their observations, **886 hypotheses and
interim conclusions."
Id. at ---, 354 N.E.2d at 876.
The present defendants urge that any disclosure here would defeat
the aims mentioned, but it is noteworthy that we said in Bougas
"(t)here is no blanket exemption provided for records kept by
police departments."
Id. at ---, 354 N.E.2d at 878.
Nor does the statute exempt all investigatory materials; instead
*290 it invites case-by-case consideration of whether access
"would probably so prejudice the possibility of effective law
enforcement that such disclosure would not be in the public
interest." [FN18]
That some exempt material may be found in a document or report of
an investigatory character does not justify cloture as to all of
it.
See Walker v. City of New York,
64 A.D.2d 980, 408 N.Y.S.2d 811 (N.Y.1978);
Montes v. State,
94 Misc.2d 972, 406 N.Y.S.2d 664 (N.Y.1978).
FN17. Subdivision (F ) of G.L. c. 4, s 7, Twenty-sixth, as
appearing in St.1973, c. 1050, s 1, exempts
"investigatory materials necessarily compiled out of the public
view by law enforcement or other investigatory officials the
disclosure of which materials would probably so prejudice the
possibility of effective law enforcement that such disclosure
would not be in the public interest."
FN18. However, we recognize that in given circumstances certain
categories of records, such as witness statements to be used in a
pending criminal proceeding, may be exempt from disclosure without
an inquiry into whether disclosure would cause undue prejudice to
effective law enforcement in the particular case.
See NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)
(allowing "generic" determination that disclosure of statements of
witnesses to be used in pending unfair labor practice proceeding
would interfere with enforcement proceeding).
We conceive that protection might with reason be claimed by the
department against giving up the identity of confidential sources
or revealing secret investigative procedures touching on firearms
cases under the departmental rules.
But prima facie there is no ground for uneasiness about letting
the plaintiff have the times and places of incidents or the like
or aggregated facts resembling those referred to above by way of
illustration.[FN19]
FN19. For cases in varying settings authorizing disclosure of all
or portions of police reports dealing with the legality of police
conduct, often against a contention that those reports were exempt
as "investigatory,"
see Houston v. Rutledge,
237 Ga. 764, 229 S.E.2d 624 (1976)
(files concerning deaths of prison inmates);
Montes v. State,
94 Misc.2d 972, 406 N.Y.S.2d 664 (N.Y.1978)
(personnel records, including citizen complaints, concerning
particular officer);
Walker v. City of New York,
64 A.D.2d 980, 408 N.Y.S.2d 811 (N.Y.1978)
(complaints and investigations concerning shooting by
particular officer);
Farrell v. Village Bd. of Trustees,
83 Misc.2d 125, 372 N.Y.S.2d 905 (N.Y.1975)
(written reprimands for on-duty misconduct).
Information in the firearms records that might bear on possible
discipline of police officers or putative criminal prosecution of
individuals could possibly invite comparison with the information
ruled sensitive in the Bougas case, but there is value in
observing a distinction drawn *291 by the courts in construing the
analogous "investigatory" exemption of the Federal act. [FN20]
The distinction is between
"government surveillance or oversight of the performance of duties
of its employees" and
"investigations which focus directly on specifically alleged
illegal **887 acts, illegal acts of particular identified
officials, acts which could, if proved, result in civil or
criminal sanctions."
Rural Hous. Alliance v. United States Dep't of Agriculture,
162 U.S.App.D.C. 122, 130, 498 F.2d 73, 81 (D.C.Cir.1974).
Although
"(t)here is no clear distinction between investigative reports and
material that, despite occasionally alerting the administrator to
violations of the law, is acquired essentially as a matter of
routine,"
Id. at n.47, quoting from
Center for Nat'l Policy Review v. Weinberger,
163 U.S.App.D.C. 368, 371, 502 F.2d 370, 373 (1974),
still the distinction is taken lest the exemption "swallow() up the Act."
Id.
"(M)ost information sought by the Government about is own
operations is for the purpose *292 ultimately of determining
whether such operations comport with applicable law . . . .
Any internal auditing or monitoring conceivably could result in
disciplinary action, in dismissal, or indeed in criminal charges
against employees.
But if this broad interpretation is correct, . . . exemption 7
(investigatory materials) defeats one central purpose of the Act
to provide public access to information concerning the
Government's own activities."
Id.
FN20. That exemption, as originally written, covered
"investigatory files compiled for law enforcement purposes except
to the extent available by law to a private party."
Pub.L. No. 89-487, s 3(e), 80 Stat. 251 (1966).
Because of a belief that the exemption had been read to broadly,
Congress amended it in 1974 to cover
"investigatory records compiled for law enforcement purposes, but
only to the extent that the production of such records would
(A) interfere with enforcement proceedings,
(B) deprive a person of a right to a fair trial or an impartial
adjudication,
(C) constitute an unwarranted invasion of personal privacy,
(D) disclose the identity of a confidential source and, in the
case of a record compiled by a criminal law enforcement
authority in the course of a criminal investigation
. . . confidential information furnished only by the
confidential source,
(E) disclose investigative techniques and procedures, or
(F) endanger the life or physical safety of law enforcement
personnel."
5 U.S.C. s 552(b)(7) (Supp. IV 1974).
Thus the exemption has been better adapted to its perceived
purposes, NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 221-236, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978).
As amended, it has been used as a guide to the interpretation of a
State statute.
Jensen v. Schiffman,
24 Or.App. 11, 544 P.2d 1048, 1051 (Or.App.1976).
The distinction described in our text has been applied in cases
decided under the earlier as well as the later versions of the
investigatory exemption.
See Sears, Roebuck & Co. v. General Servs. Administration,
166 U.S.App.D.C. 194, 509 F.2d 527 (1974);
Center for Nat'l Policy Review v. Weinberger,
163 U.S.App.D.C. 368, 502 F.2d 370 (1974);
Metropolitan Life Ins. Co. v. Usery,
426 F.Supp. 150 (D.D.C.1976).
Privacy.
Although the privacy issue was not mentioned by the judge below,
the defendants and intervener invoke that part of subdivision (C )
which exempts
"materials or data relating to a specifically named individual,
the disclosure of which may constitute an invasion of personal
privacy."
A police officer would be obliged to make an incident report or to
respond to questions in the course of a firearms investigation, on
pain otherwise of losing his job; but he could not be prosecuted
criminally on the basis of the information he supplied.
Garrity v. New Jersey,
385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967);
Gardner v. Broderick,
392 U.S. 273, 278, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968).
Broderick v. Police Comm'r of Boston,
368 Mass. 33, 38 & n.3, 330 N.E.2d 199 (1975);
Silverio v. Municipal Court of Boston,
355 Mass. 623, 628-630, 247 N.E.2d 379 (1969).
In these circumstances the public disclosure of the officer's
avowals would not violate his Fifth Amendment rights.
Cf. Lefkowitz v. Cunningham,
431 U.S. 801, 805-806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977).
Yet if members of the public were allowed access to the material
elicited from the officer he might suffer an intrusion on his
privacy with possible collateral injuries such as loss of
opportunities for future employment.
Against the prospective invasion of individual privacy is to be
weighed in each case the public interest in disclosure:
the tilt of the scale will suggest whether the subdivision (C )
exemption should be allowed.
See Attorney Gen. v. Collector of Lynn,
--- Mass. ---, --- - --- [FNA], 385 N.E.2d 505 (1979);
Hastings & Sons Publishing Co. v. City Treasurer of Lynn,
--- Mass. ---, --- [FNB], 375 N.E.2d 299 (1978);
Getman v. NLRB, 146 U.S.App.D.C. 209, 213, 450 F.2d 670, 674 (1971).
Cf. Attorney Gen. v. School Comm. of Northampton,
--- Mass. ---, --- & n.5 [FNC], 375 N.E.2d 1188 (1978).
*293 Materials not unfavorable to the officer would naturally make
a weaker claim for exemption than those that picture him in a more
garish color.
There is surely room for argument in the present context that the
public interest does not demand connecting officers by name to
particular incidents, and there are Federal cases which have, in
analogous settings of work evaluations, approved the deletion of
particular identifying details from a document which is otherwise
ordered disclosed.
See Associated Dry Goods Corp. v. NLRB,
455 F.Supp. 802, 815 (S.D.N.Y.1978);
Nationwide Mut. Ins. Co. v. Friedman,
451 F.Supp. 736, 745 (D.Md.1978);
Metropolitan Life Ins. Co. v. Usery,
426 F.Supp. 150, 168-169 (D.C.C.1976);
Vaughn v. Rosen,
383 F.Supp. 1049, 1054-1055 (D.D.C.1974),
aff'd, 173 U.S.App.D.C. 187, 523 F.2d 1136 (1975).
Cf. Department of Air Force v. Rose,
425 U.S. 352, 376-377, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).
In all events, like those Federal courts, we reject the suggestion
**888 that any record as to which the privacy exemption may have
some application is necessarily to be withheld in its entirety.
FNa. Mass.Adv.Sh. (1979) 191, 197-198.
FNb. Mass.Adv.Sh. (1978) 920, 928.
FNc. Mass.Adv.Sh. (1978) 1108, 1115 & n.5.
CORI.[FN21] This information, defined in G.L. c. 6, s 167, as amended by
St.1977, c. 691, s 2, comprises
"records and data in any communicable form compiled by a criminal
justice agency which concern an identifiable individual and
relate to the nature or disposition of a criminal charge, an
arrest, a pre- trial proceeding, or other judicial proceedings,
sentencing, incarceration, rehabilitation, or release."
Section 167 goes on to say,
"Such information shall be restricted to that recorded as the
result of the initiation of criminal proceedings or any
consequent proceedings related thereto"; further, the information
"shall not include evaluative information, statistical and
analytical reports and files in which individuals are not
directly or indirectly identifiable, or intelligence
information."
CORI may not be disclosed to members of the *294 general public
(see s 172;
New Bedford Standard-Times Publishing Co. v.
Clerk of the Third Dist. Court of Bristol,
--- Mass. ---(1979) [FND]),
387 N.E.2d 110 (1979),
although it is available to criminal justice agencies and some
others as prescribed in the statute.
FN21. Subdivision (A ) of G.L. c. 4, s 7, Twenty-sixth, as
appearing in St.1973, c. 1050, s 1, exempts materials
"specifically or by necessary implication exempted from disclosure
by statute."
FNd. Mass.Adv.Sh. (1979) 515.
We may assume, with the judge below, that the firearms reports may
contain CORI, for example, mention of arrests.
It is indeed open to argument that the information appearing in
the reports would not have been recorded in connection with the
initiation or progress of criminal proceedings, and thus would be
outside CORI as defined; but that may be too fine a point,
especially with regard to rule 303 incident reports, for these, we
are told, sometimes do double duty by being turned in also as
regular police reports.
But, granted that true CORI or information plausibly within that
nondisclosure policy may appear in the firearms material sought by
the present plaintiff, deletion or separation of the offending
material seems quite possible. The defendants do not dispute this
point.
2. Steps on remand.
The plaintiff's interrogatories and his motions to compel
answers and for itemization, indexing, and detailed
justification were all an attempt to surmount an obvious
difficulty in the enforcement of the duty to provide access to
public records.
In general, disclosure is favored the statute creates
"a presumption that the record sought is public," and the
burden is
"upon the custodian to prove with specificity the
exemption which applies."
See G.L. c. 66, s 10(C );
Attorney Gen. v. School Comm. of Northampton,
supra at --- [FNE], 375 N.E.2d 1188;
Hastings & Sons Publishing Co. v. City Treasurer of Lynn,
supra at --- - --- [FNF],
375 N.E.2d 299.
Yet a plaintiff usually starts with a handicap of ignorance as to
what exactly the records contain, while the custodian agency has
the not inconsiderable advantage of full knowledge, which lends
some appearance of authority to its protestation that any attempt
at analysis would prejudice decision because it would itself
amount to disclosure.
"This lack of knowledge by the party see(k)ing *295 disclosure
seriously distorts the traditional nature of our legal system's
form of dispute resolution."
Vaughn v. Rosen,
157 U.S.App.D.C. 340, 484 F.2d 820, 824 (D.C.Cir.1973),
cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
In camera inspection and decision by the judge is a solution, but
an unhappy one, to be used only in the last resort, precisely
because it forfeits bilaterality.
See Bougas v. Chief of Police of Lexington,
supra 371 Mass. at --- - ---,
354 N.E.2d 872.
FNe. Mass.Adv.Sh. (1978) at 1115.
FNf. Mass.Adv.Sh. (1978) at 924-925.
Federal courts, following the lead of the Vaughn case, have evolved
a working procedure short of the in camera device.
When claims of exemption by an agency appear not otherwise capable
of fair analysis, the agency is required, on motion, to itemize
and index the records requested and give detailed justifications
for its claims.
**889 "In a large document it is vital that the agency specify in
detail which portions of the document are discloseable and
which are allegedly exempt.
This could be achieved by formulating a system of itemizing and
indexing that would correlate statements made in the Government's
refusal justification with the actual portions of the document.
Such an indexing system would subdivide the document under
consideration into manageable parts cross-referenced to the
relevant portion of the Government's justifications.
Opposing counsel should consult with a view toward eliminating
from consideration those portions that are not controverted and
narrowing the scope of the court's inquiry."
Vaughn, supra at 827.
The procedure plays in with the "segregable" rule, as established
by Federal statute and now by our own. Of the many cases in which
the technique has been applied, we cite in the margin a few that
will perhaps be found most instructive.[FN22]
FN22. See Ray v. Turner,
190 U.S.App.D.C. 290, 298-302, 587 F.2d 1187, 1195-1199 (1978)
(reprinting inadequate justifications
190 U.S.App.D.C. at 301-302, 587 F.2d 1198-1199);
Baker v. Central Intelligence Agency,
188 U.S.App.D.C. 401, 580 F.2d 664 (1978);
Ash Grove Cement Co. v. F.T.C.,
167 U.S.App.D.C. 249, 511 F.2d 815 (1975);
Serbian E. Orthodox Diocese v. Central Intelligence Agency,
458 F.Supp. 798 (D.D.C.1978);
Flower v. Federal Bureau of Investigation,
448 F.Supp. 567 (W.D.Tex.1978);
Cerveny v. Central Intelligence Agency,
445 F.Supp. 772 (D.Colo.1978);
Mobil Oil Corp. v. F.T.C.,
406 F.Supp. 305 (S.D.N.Y.1976).
*296 On remand, the judge, in dealing with the plaintiff's
undecided motions, should take such benefit from the Federal
method as he may think advisable.
Plainly there is room for improvisation.
While the defendants may be obliged to furnish specific reasons
for withholding information, the entire process, we think, could
be facilitated in a case like the present by the plaintiff's being
reasonably forthcoming about what in fact he is interested to find
out.
The Federal experience tends to show that with willing cooperation
much can be settled by agreement of the parties.
The judgment will be vacated and the case remanded for further
proceedings consistent with this opinion.
So ordered.
Mass., 1979.
END OF DOCUMENT
Copr. (C) West 2002 No Claim to Orig. U.S. Govt. Works
4. District Attorney for Norfolk Dist. v. Flatley,
419 Mass. 507, 646 N.E.2d 127, Feb 15, 1995
Rape victim brought action against owner of apartment building
where rape occurred.
Upon motion by owner, the Superior Court, Suffolk County,
O'Connor, J., entered order compelling production from district
attorney of statements of witnesses and district attorney's notes
from his interview with victim.
District Attorney sought review.
Single justice affirmed, and district attorney appealed.
The Supreme Court, Lynch, J., held that record did not show
whether trial judge found that district attorney's notes
constituted public records or whether district attorney met his
burden of proof that documents were exempt from public disclosure
as "law enforcement investigative materials."
Order vacated and case remanded.
West Headnotes
[1] KeyCite Notes
326 Records
326II Public Access
326II(A) In General
326k30 k. Access to Records or Files in General. Most Cited Cases
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k57 k. Internal Memoranda or Letters; Executive Privilege. Most
Cited Cases
In Massachusetts, neither courts nor legislature has adopted
"deliberative process" privilege to public access to government
records.
KeyCite Notes
[2]
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k61 Proceedings for Disclosure
326k63 k. Judicial Enforcement in General. Most Cited Cases
Record did not show whether trial court found that handwritten
prosecutor's notes created by prosecutor following interview with
rape victim constituted public records or whether district
attorney provided specific proof that notes were exempt from
public disclosure as "law enforcement investigative materials,"
and therefore remand was required.
M.G.L.A. c. 4, ง 7, cl. 26(f);
c. 66, ง 10.
**127 *507 William J. Duensing, Asst. Atty. Gen., for plaintiff.
John A. Kiernan (John P. Noyes, with him), Boston, for Thomas J. Flatley.
LYNCH, Justice.
The district attorney for the Norfolk district (district attorney),
appeals from a decision **128 of a single justice of this court,
dismissing a petition under
G.L. c. 211, ง 3 (1992 ed.), seeking to vacate a decision of a
Superior Court judge ordering him to produce documents contained
within a prosecutorial file.
We remand this case to the single justice *508 where a judgment is
to enter vacating the order of the Superior Court judge and
remanding the case to the Superior Court for further proceedings
consistent with this decision.
This matter arises from a civil action pending in the Superior
Court Department, in which it is alleged that the plaintiff was
the victim of an aggravated rape and an assault and battery which
occurred in her apartment.
The individual who perpetrated those crimes was prosecuted,
convicted, and sentenced to prison.
The Appeals Court affirmed the judgments.
Commonwealth v. Stande,
26 Mass.App.Ct. 1115, 529 N.E.2d 895 (1988).
The apartment where the rape occurred is owned and managed by the
defendant, Thomas J. Flatley.
In the course of discovery in this case, Flatley subpoenaed the
assistant district attorney who had prosecuted the criminal case
(prosecutor), to produce the contents of his files which related
to the investigation, prosecution, or trial of the criminal
case. [FN2]
Flatley argued that the contents of the file were relevant to the
issues in the civil case and that inconsistencies exist between
the victim's statements to the Randolph police department and her
later testimony at the criminal trial.
At the hearing on Flatley's motion to compel production, the
prosecutor described generally the categories of documents
contained within the file.
After hearing arguments by counsel, the motion judge allowed
Flatley's motion to compel
"but only to the extent of statements of witnesses, sworn or
unsworn, in the possession of the district attorney."
The prosecutor then notified the judge and the parties to the
civil litigation that he had located additional materials in his
criminal prosecution file constituting fifteen pages of
handwritten notes created by him following his initial interview
with the victim.
When the district attorney argued that these notes did not fall
within the purview of the judge's order for production, the judge
convened a supplemental telephonic *509 hearing regarding the
newly discovered documentation contained within the prosecutorial
file.
After hearing arguments by counsel, including a specific
description of the prosecutor's notes, the judge ruled that the
notes were within the scope of his order, and therefore, must be
produced.
The district attorney then filed a motion for reconsideration,
which another judge denied.
The district attorney then sought review of the judge's decision
before the single justice pursuant to
G.L. c. 211, ง 3.
After determining that it was proper to use the extraordinary
powers under
G.L. c. 211, ง 3, to review the judge's decision, the single
justice dismissed the district attorney's complaint. [FN3]
He then filed a timely notice of appeal.
FN2. In this case, the defendant Flatley served the prosecutor with a
subpoena duces tecum and notice of deposition seeking
"[t]he entire contents of the District Attorney's office file or
files which relate to the investigation, prosecution and trial of
[the criminal defendant] for the aggravated rape [and] assault
and battery of [the victim]."
FN3. The single justice decided that
"it is proper for this Court to use its extraordinary powers under
G.L. c. 211, ง 3, to review the Superior Court's action at this
stage rather than to limit the [district attorney] to an appeal to
the full court after an adjudication of contempt."
Given the district attorney's position as both an elected official
and the chief law enforcement officer of the Commonwealth in the
Norfolk district, we agree with the single justice's decision that
it was proper for the district attorney to seek relief pursuant to
G.L. c. 211, ง 3 (1992 ed.).
We review a decision of a single justice to determine whether there
has been a clear error of law or an abuse of discretion.
See Department of Mental Retardation v. Kendrew,
418 Mass. 50, 53, 634 N.E.2d 109 (1994);
Delisle v. Commonwealth,
416 Mass. 359, 360, 622 N.E.2d 601 (1993).
1. Deliberative process privilege.
The district attorney contends that the documents sought
(i.e., fifteen pages of handwritten notes assembled after
prosecutor's initial interview with rape victim) are
"prosecutorial deliberative material," and therefore, should be
protected from public access.
Attorney Gen. v. Tufts,
239 Mass. 458, 490-491, 132 N.E. 322 (1921).
See **129 Gomez v. Nashua,
126 F.R.D. 432, 435 (D.N.H.1989);
United States v. Berrigan,
482 F.2d 171, 180-181 (3d Cir.1973).
[1] The Federal courts have long recognized the
"deliberative process privilege" which prevents the disclosure
of intra-agency memoranda and documents that record the
deliberative, predecisional process leading to an agency
decision.
See *510 N.L.R.B. v. Sears, Roebuck & Co.,
421 U.S. 132, 150-151, 95 S.Ct. 1504, 1516-1517, 44 L.Ed.2d 29 (1975).
N.O. v. Callahan,
110 F.R.D. 637, 641 (D.Mass.1986)
(documents containing discussions regarding fiscal policy privileged).
However, in Massachusetts, neither the courts nor the
Legislature has adopted a "deliberative process" privilege as
the district attorney now suggests.
See Babets v. Secretary of Human Servs.,
403 Mass. 230, 239, 526 N.E.2d 1261 (1988)
(declining to create "deliberative process" or
"executive" privilege as asserted by the defendants);
N.O. v. Callahan,
supra at 642
(acknowledging absence of any Massachusetts opinion
recognizing deliberative process privilege).
However, this court has stated that
"[i]t is a principle of law founded upon sound public policy and
arising out of the creation and establishment of constitutional
government that communications made to a district attorney in
order to secure the enforcement of law are privileged and
confidential in the sense that they cannot be revealed at the
instance of private parties in aid of actions at law."
Attorney Gen. v. Tufts, supra.
Over one century ago this court explained the rationale for this
rule:
"It is the duty of every citizen to communicate to his government
any information which he has of the commission of an offence
against its laws.
To encourage him in performing this duty without fear of
consequences, the law holds such information to be among the
secrets of state, and leaves the question how far and under what
circumstances the names of the informers and the channel of
communication shall be suffered to be known, to the absolute
discretion of the government...."
Worthington v. Scribner, 109 Mass. 487, 488 (1872).
These two cases not only establish a broad privilege encompassing
all communications made to a prosecutor for the purpose of
securing law enforcement, but also make the privilege absolute.
No subsequent Massachusetts decision modifies or abrogates either
Tufts or Worthington.
However, the Legislature has adopted
G.L. c. 66, ง 10 (1992 ed.), the public records statute, which
requires public access to various records and documents in the
*511 possession of public officials unless otherwise exempt.
[FN4] See Hastings & Sons Publishing Co. v. City Treasurer of Lynn,
374 Mass. 812, 815-816, 375 N.E.2d 299 (1978)
(discussing history of public records statute).
"The class of records to which the public must be afforded access
is defined in G.L. c. 4, ง 7, Twenty-sixth [1992 ed.]." [FN5]
Globe Newspaper Co. v. Boston Retirement Bd.,
388 Mass. 427, 430, 446 N.E.2d 1051 (1983)
(discussing interrelationship between statutes).
Generally, the public records statute favors disclosure by creating
a "presumption that the record sought is public."
G.L. c. 66, ง 10(c ). [FN6]
However,
G.L. c. 4, ง 7, Twenty-sixth, details specific exemptions to the
public records statute, but in order for a record to qualify as
exempt, the custodian of the record has the burden
"to prove with specificity" that an exemption applies.
G.L. c. 66, ง 10(c ).
See Attorney Gen. v. School Comm. of Northampton,
375 Mass. 127, 131, 375 N.E.2d 1188 (1978);
**130 Bougas v. Chief of Police of Lexington,
371 Mass. 59, 61-62, 354 N.E.2d 872 (1976).
FN4. General Laws c. 66, ง 10(a ) (1992 ed.), states in pertinent
part:
"Every person having custody of any public record ... shall, at
reasonable times and without unreasonable delay, permit it, or
any segregable portion of a record which is an independent public
record, to be inspected and examined by any person, under his
supervision, and shall furnish one copy thereof upon payment of a
reasonable fee."
FN5. General Laws c. 4, ง 7, Twenty-sixth (1992 ed.), states that
public records shall include
"all books, papers, maps, photographs, recorded tapes, financial
statements, statistical tabulations, or other documentary
materials or data, regardless of physical form or
characteristics, made or received by any officer or employee of
an agency, executive office, department, board, commission,
bureau, division or authority of the commonwealth."
FN6. General Laws c. 66, ง 10(c ) (1992 ed.), states in pertinent
part:
"[T]here shall be a presumption that the record sought is public,
and the burden shall be upon the custodian to prove with
specificity the exemption which applies."
[2] 2. G.L. c. 4, ง 7, Twenty-sixth (f) exemption.
The district attorney contends that the information sought
constitutes "law enforcement investigative materials," and
therefore, is protected from public access under the specific
statutory exemption of
G.L. c. 4, ง 7, Twenty-sixth (f) (1992 ed.). [FN7]
The *512 exemption advanced by the district attorney recognizes
that "disclosure of certain investigatory materials could detract
from effective law enforcement to such a degree as to operate in
derogation, and not in support, of the public interest."
Bougas v. Chief of Police of Lexington,
supra.
The public policy concerns that support this exemption include
"the prevention of the disclosure of confidential investigative
techniques, procedures, or sources of information, [and] the
encouragement of individual citizens to come forward and speak
freely with police concerning matters under investigation."
Id. at 62, 354 N.E.2d 872.
FN7. Clause Twenty-sixth (f ) of G.L. c. 4, ง 7 (1992 ed.), exempts
"investigatory materials necessarily compiled out of the public
view by law enforcement or other investigatory officials the
disclosure of which materials would probably so prejudice the
possibility of effective law enforcement that such disclosure
would not be in the public interest."
With these policy concerns in mind, this court held in
Bougas v. Chief of Police of Lexington, supra, that certain police
reports and letters from private citizens regarding a specific
incident under investigation were exempt from public disclosure
under
cl. Twenty-sixth (f ) of G.L. c. 4, ง 7. Id. at 66, 354 N.E.2d 872.
Similarly, in WBZ-TV4 v. District Attorney for the Suffolk Dist.,
408 Mass. 595, 602-604, 562 N.E.2d 817 (1990),
we held that disclosure of a videotape of a lineup conducted for
grand jury purposes, as well as a videotaped witness statement
"could well have an adverse effect on effective law enforcement,"
and therefore, both were exempt from disclosure under
G.L. c. 4, ง 7, Twenty-sixth (f ). [FN8]
FN8. In Matter of a John Doe Grand Jury Investigation,
415 Mass. 727, 729-731, 615 N.E.2d 567 (1993),
we held that the same videotape of the lineup conducted for grand
jury purposes and previously sought in
WBZ- TV4 v. District Attorney for the Suffolk Dist.,
408 Mass. 595, 602-604, 562 N.E.2d 817 (1990),
should remain exempt from public disclosure even though the grand
jury proceedings and the related criminal investigation had been
concluded.
Therefore, recognizing the absence of a blanket exemption for
police records or investigatory materials, this court has stated
that a case-by-case review is required to determine whether an
exemption applies,
Reinstein v. Police Comm'r of Boston,
378 Mass. 281, 289-290, 391 N.E.2d 881 (1979), and that
"[t]here must be specific proof elicited that the documents sought
are of a type for which an exemption has been provided.
On *513 doubtful questions an in camera inspection may be
appropriate " (emphasis added).
Bougas v. Chief of Police of Lexington,
supra, 371 Mass. at 65-66, 354 N.E.2d 872.
Therefore, given the precedent set forth in
Attorney Gen. v. Tufts,
supra, and
Worthington v. Scribner,
supra,
and because it is unclear from the record whether the lower court
judge found that the prosecutor's handwritten notes constituted
public records under
G.L. c. 66, ง 10, or whether the district attorney met his burden
of proof that the documents indeed were exempt from public
disclosure under
G.L. c. 4, ง 7, Twenty-sixth (f ), we remand the case for a
determination of these two issues. [FN9]
FN9. Nothing in this opinion should be understood as preventing
inquiry of the prosecutor either by deposition or at trial
concerning statements made by the victim in the course of the
district attorney's investigation and prosecution of the crime.
The case is remanded to a single justice of this court, where a
judgment is to be entered vacating the order of the Superior Court
judge and remanding the case to the Superior Court for further
proceedings consistent with this opinion.
So ordered.
Mass.,1995.
END OF DOCUMENT
Copr. (C) West 2002 No Claim to Orig. U.S. Govt. Works
1975 Mass Acts 303 sect3