Mass. Orders Release of Records Detailing Investigation into Off-Duty Police Officer

By Sean F. Driscoll

sean_driscollWhen the Cape Cod Times hears of police misconduct, reporters routinely ask for records of the police department’s internal investigation. In some cases, departments delay their release, or decline to do so all together.

That was the case with the town of Falmouth, which refused on two occasions to release internal investigation records related to a police officer, Michael Rogers, whom we understood was the subject of disciplinary proceedings related to some off-duty activity that occurred in September 2013. I first requested the records under the Massachusetts Open Records Law in October, and was told the investigation was ongoing and that my request would be reconsidered after the matter was closed.

When we heard the investigation was done in December and Rogers had been demoted from lieutenant to sergeant, my colleague, George Brennan, again filed a request for the information and pointed Town Manager Julian Suso to SPR Bulletin 03-04, in which then-Supervisor of Records, Alan Cote, specifically discusses internal affairs investigations. This time we were denied outright, with Suso citing a privacy exemption. The town’s position was that the conduct covered by the investigation happened while Rogers was off-duty, which made the record a personnel file. The town pointed to another open records case, this time regarding the conduct of an off-duty firefighter, in which the state did not order the release of an internal investigation, as justification for its actions.

Following a phone call between George Brennan and Suso in which no progress was made, I filed an appeal with the State Supervisor of Records in January. In it, I wrote that the Supervisor of Records has consistently ruled that investigations pertaining to municipal employees, especially those involved in public safety, be released to ensure the public’s confidence and trust.

In short, I wrote, the philosophy is that ensuring the public’s trust and a spirit of openness in the integrity of public safety officials is so important that it trumps any privacy concerns that would arise from an internal investigation.

The state agreed with me. In March, it ordered the town to release the records, saying “an internal investigation into the conduct of an officer that related to an ‘intramural departmental matter’ or ‘non-police matter’ does not lessen the public concern of that investigation. The competence and integrity of a police force are intrinsically public concerns.”

When the town did release the (redacted) records, they revealed that Rogers had been found in his pickup truck partially clothed with a woman who was not his wife. One of his fellow officers happened upon him while doing a late-night, routine check of a business; the incident made her uncomfortable, so she ultimately reported it to superiors. Other incidents of alleged misconduct were referenced in the investigation, painting a broader picture of Rogers’ behavior.

It was frustrating that the town declined a request that was such a clear-cut example of an open record, but the extra steps to appeal to the state were worth the time — as they always are whenever a public official forgets that information belongs to the public, not to them.

Sean is a reporter for the Cape Cod Times and be emailed at

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