Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester
| Decision Date | 07 January 2002 |
| Citation | 436 Mass. 378,764 NE 2d 847 |
| Parties | WORCESTER TELEGRAM & GAZETTE CORPORATION v. CHIEF OF POLICE OF WORCESTER & another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
David M. Moore, City Solicitor, for the defendants.
Vincent F. O'Rourke, Jr., for the plaintiff.
We are asked in this case to review an order of a Superior Court judge that compels the defendants, the chief of police of Worcester and the city of Worcester, to produce certain documents requested by the plaintiff, Worcester Telegram & Gazette Corporation, pursuant to G. L. c. 66, § 10, for inspection by their respective counsel, subject to a protective order. We affirm the order. Shawn Wilder filed a complaint alleging misconduct by Patrolman Michael A. Tarckini when, without cause or explanation, he detained and arrested Wilder at gunpoint.2 The Worcester police department claimed to have conducted an internal affairs investigation of the allegations and found no cause to discipline Patrolman Tarckini. On October 1, 1999, pursuant to G. L. c. 66, § 10 (a,)3 the plaintiff requested that the defendants release "copies of Worcester Police Department records on the internal investigation into the complaints lodged by Shawn Wilder or on his behalf, stemming from an incident [on] May 1, 1999." The defendants responded that the records sought by the plaintiff were specifically exempt from public disclosure pursuant to one or more of the exceptions set forth in G. L. c. 4, § 7, Twenty-sixth (a), (b), (c), and (f).4 The plaintiff then petitioned the supervisor of public records (supervisor), appealing from the defendants' refusal to comply with its public records request. The supervisor ordered the defendants to release the requested records to the plaintiff, redacting only the names and identifying details of voluntary witnesses, complainants, and informants. The defendants refused to comply with the plaintiff's request and the supervisor's order.5
On May 10, 2000, the plaintiff filed in the Superior Court a complaint in the nature of a mandamus action pursuant to G. L. c. 66, § 10 (b),6 and 950 Code Mass. Regs. § 32.08(2) (1993). The plaintiff sought to compel the defendants to release the following documents: (1) all complaints against the police department arising out of Wilder's detention and arrest; (2) all police officer, witness, and informant statements relating to such complaints; (3) all internal investigation reports relating to such complaints; (4) all investigatory findings relating to such complaints; and (5) all documents relating to the disposition of such complaints.7
The plaintiff also filed in the Superior Court a motion to permit inspection of the public records sought, subject to a protective order. Relying on Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852 (1995), it asserted that the circumstances of this case warranted inspection so as to test the defendants' claim that the requested documents were exempt from public disclosure.
The judge allowed the plaintiff's motion, pursuant to a detailed protective order. He acknowledged that the exemptions to public disclosure set forth in G. L. c. 4, § 7, Twenty-sixth, could apply, to some extent, to the documents requested by the plaintiff. However, the judge stated that he could not conclude, as a matter of law, that such documents were automatically exempt from disclosure without further inquiry into their precise nature. He opined that the custodian of public records could not be the sole arbiter of the applicability of any exemption to disclosure or the purpose behind G. L. c. 66, § 10, would be undermined.
The defendants filed in the Appeals Court a petition for interlocutory relief from the judge's order pursuant to G. L. c. 231, § 118, first par. A single justice of the Appeals Court denied the petition. The defendants filed a motion for reconsideration or, in the alternative, for an order reporting the following question to the full court: Whether Wakefield Teachers Ass'n v. School Comm. of Wakefield, 431 Mass. 792 (2000), precludes disclosure of internal affairs files under G. L. c. 4, § 7, Twenty-sixth. On reconsideration, the single justice declined to grant the defendants' request for interlocutory relief, but she gave the defendants leave to file a notice of appeal of this issue in the trial court. We transferred the case to this court on our own motion.8
The defendants contend that Wakefield Teachers Ass'n v. School Comm. of Wakefield, supra,
is dispositive of the plaintiff's motion to permit inspection of records because it established that the "personnel files" exemption in G. L. c. 4, § 7, Twenty-sixth (c), applies categorically to documents created or assembled as part of an investigation into allegations of misconduct by a particular public employee (here, Patrolman Tarckini).9 The defendants assert that there is no difference between the internal investigation conducted by the school superintendent in Wakefield Teachers Ass'n v. School Comm. of Wakefield, supra, and the internal affairs investigation conducted by the chief of police of Worcester. Because, as the defendants argue, a "personnel file" is exempt from disclosure, no amount of review by the plaintiff will make the requested documents public records. The plaintiff, on the other hand, asserts that, in light of the defendants' contention that all of the internal affairs documents sought by the plaintiff are exempt as "personnel files," its counsel, at a minimum, should be allowed to have access to the requested documents to determine the accuracy of the defendants' claim of exemption.
The primary purpose of G. L. c. 66, § 10, is to give the public broad access to governmental records. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983). To that end, disclosure is favored by the "presumption that the record sought is public." G. L. c. 66, § 10 (c). The purpose of G. L. c. 66, § 10, however, "should not be used as a means of disregarding the considered judgment of the Legislature that the public right of access should be restricted in certain circumstances." Globe Newspaper Co. v. Boston Retirement Bd., supra.
In G. L. c. 4, § 7, Twenty-sixth, the Legislature has identified twelve categories of records, otherwise public, that are exempt from disclosure, including "personnel ... files or information" and "investigatory materials necessarily compiled out of the public view by law enforcement ... 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." The custodian of the requested record has the burden of proving, with specificity, the applicability of the relevant exemption. See G. L. c. 66, § 10 (c); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). To the extent that only a portion of a public record may fall within an exemption to disclosure, the nonexempt "segregable portion" of the record is subject to public access. See G. L. c. 66, § 10 (a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 287-288, 290 (1979) ().
There is no "blanket exemption" to public disclosure for records kept by police departments or for investigatory materials. See District Attorney for the Norfolk Dist. v. Flatley, supra at 512-513 (); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65 (1976) (). Rather, the applicability of an exemption to public disclosure must be determined on a case-by-case basis.10 See Reinstein v. Police Comm'r of Boston, supra at 289-290. "There must be specific proof elicited that the documents sought are of a type for which an exemption has been provided" (footnote omitted). Bougas v. Chief of Police of Lexington, supra at 65-66.
This court has sanctioned several mechanisms for the review of "public records" to determine whether they are, in fact, exempt from disclosure pursuant to G. L. c. 4, § 7, Twenty-sixth. Where the applicability of an exemption is questionable, in camera inspection by a judge may be appropriate. Id. at 66. This court has stated, however, that "[i]n camera inspection and decision by the judge ... [should] be used only in the last resort." Reinstein v. Police Comm'r of Boston, supra at 295. See Bougas v. Chief of Police of Lexington, supra at 65.
Review of "public records" can be accomplished through the use of an itemized and indexed document log in which the custodian sets forth detailed justifications for its claims of exemption. See Reinstein v. Police Comm'r of Boston, supra at 295. Opposing counsel then has an opportunity to review the log, as well as the claimed exemptions, and to eliminate from further consideration those documents, or portions thereof, that are not controverted, thereby narrowing the scope of the court's inquiry.11 Id. The judge may employ the method of review he deems most advisable, and there is room for flexibility. Id. at 296.
A third avenue for the review of disputed "public records" is for a judge to permit counsel for the custodian and counsel for the party seeking production to have access to the documents subject to an appropriate protective order. See Globe Newspaper Co. v. Police Comm'r of Boston, supra at 868. ...
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