By Jeffrey J. Pyle and Michael J. Lambert
In a pair of decisions released on March 12, 2020, the Massachusetts Supreme Judicial Court (SJC) ordered law enforcement agencies to provide incident reports, mugshots, and prosecution data to The Boston Globe.
In both decisions, the SJC rejected arguments — long invoked by agencies and municipalities — that arrest and prosecution records are confidential under the state’s Criminal Offender Record Information Act (CORI Act). At the same time, the SJC limited the reach of the public records law to carry out the state’s policy of preventing undue collateral consequences from criminal charges.
Incident Reports and Mugshots
In 2014, The Boston Globe reported that off-duty Massachusetts police officers arrested for drunk driving often receive minimal penalties, even when they cause serious accidents. In the course of his reporting, Globe journalist Todd Wallack made public records requests for incident reports and mugshots associated with these arrests, but police departments refused to produce them, citing the CORI Act.
The CORI Act, passed in the 1970s, established a statewide database of criminal records. The act allows for different levels of access to the database depending on the requester, and provides that “criminal offender record information” as defined in the statute cannot be disclosed outside the strictures of the Act. Courts have construed the CORI Act to apply to certain information contained not just in the database, but in other police records as well, such as incident reports.
For many years, Massachusetts police departments invoked the CORI Act when they wanted to withhold information about specific crimes or criminals, while freely releasing mugshots, incident reports, and other offender information when it served their purposes. Consistent with this pattern, police departments responded to Wallack’s requests by asserting that the entirety of the incident reports concerning drunk-driving cops constituted exempt CORI — even as they voluntarily published the names and mugshots of other people arrested for the same crime on their websites.
The Globe sued over the denials in May 2015, and won a favorable ruling from the trial court. But in 2018, with the lawsuit (still) pending, the legislature revised the statutory definition of “criminal offender record information.” The new definition excluded from CORI any information related to charges dismissed before arraignment. The purpose of the change was to keep information about quickly-dismissed cases out of the CORI database, and thereby ensure that persons who have contact with law enforcement are able to obtain employment.
On appeal, the law enforcement agencies argued that the intent behind this change — to make it harder to get access to criminal charges dismissed before arraignment — should lead the court to deny Wallack’s requests. On March 12, 2020 (yes, almost five years after suit was filed!), the SJC disagreed. Construing the CORI exemption narrowly, the court noted that none of the charges against the arrested police officers had proceeded past arraignment, so the documents fell outside the definition of exempt CORI. The Globe had argued other reasons why the records weren’t CORI, but the SJC left them for another day. (Hopefully, future cases will avoid the potentially ironic result that information about criminal charges that are dismissed before arraignment are more open than fully-prosecuted infractions).
The police departments didn’t rely on anything other than CORI to justify denial, so the CORI ruling was dispositive. Nonetheless, the SJC went on to analyze whether the state’s “privacy” exemption might apply to the records. That exemption, for “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy,” requires a balancing of the private interest in the information against the public interest in its disclosure. Private interests, the Court stated, can include adverse employment and other consequences from releasing criminal histories.
If Wallack’s request “had sought records concerning the alleged misconduct of a private person,” the Court hypothesized, “there might be little to offset the risk of adverse collateral consequences arising from such disclosure unless there were investigative reasons for public disclosure of the records.” However, the records in this case “concern alleged misconduct by public officials” and therefore they “implicate not only the integrity of the public officials who allegedly engaged in criminal conduct but also the integrity of our criminal justice system.” Considering the public’s “vital interest in ensuring transparency,” the mugshots and incident reports of arrested officials cannot be withheld under the “privacy” exemption.
The second March 12, 2020 decision, Attorney General v. District Attorney for the Plymouth District, SJC-12722, likewise dealt with the CORI Act and the Public Records Law. The Globe submitted public records requests to each county district attorney’s office, asking for certain categories of information in internal electronic databases regarding the cases they prosecuted. The Globe did not ask for the names of defendants charged — instead it sought such information as the docket number, date of offense, description of crime, defendant race/ethnicity and gender, disposition, and sentence.
All but two county DA’s offices complied with the request. The outliers (Plymouth and the Cape & Islands) denied it, citing CORI. In an unusual (and welcome) step, the Massachusetts Attorney General’s Office — the state’s chief law enforcement officer — sued these two local DA’s offices on the Globe’s behalf.
The AG, for the Globe, argued that the information was not “CORI” because the Globe had excluded defendant names from its request, and CORI does not include “files in which individuals are not directly or indirectly identifiable.” The SJC largely agreed, holding that 22 of the 23 categories of information the Globe sought were sufficiently anonymized to fall outside of CORI. However, the court held there was no right to disclosure of docket numbers. Echoing its decision last year about vital records, the SJC held that docket numbers could permit a requester to “cobble together something akin to a Statewide criminal history of the defendant that may provide substantially more information about the defendant’s criminal history than a member of the public could obtain” through a regular criminal history request to the state, frustrating the legislature’s policy of limiting access to the statewide database.
In addition to ruling that most of the information in the Globe’s request was public, the SJC’s decision contains a significant “win” for data journalism. The district attorneys’ offices argued that the Globe’s request improperly required them to create a computer program to compile the selected data. A records requester, the DAs argued, cannot require the creation of a new record. But the SJC held that “where public records are in electronic form, as they increasingly are and will be, a public records request that requires a government entity to search its electronic database to extract requested data does not mean that the extracted data constitute the creation of a new record under the public records law.” This “type of data recovery . . . is expected in a digital world under the public records law.”
Also expected: continued tension between the right of the press and the public to monitor the criminal justice system, and the interest of the people it ensnares to live stable, secure, and productive lives.
Jeffrey J. Pyle and Michael J. Lambert are attorneys at the Boston firm Prince Lobel Tye LLP.
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