Bos. Globe Media Partners, LLC v. Dep't of Criminal Justice Info. Servs.

• Decision Date: 12 March 2020
• Docket Number: SJC-12690
• Citation: 140 N.E.3d 923,484 Mass. 279
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOSTON GLOBE MEDIA PARTNERS, LLC v. DEPARTMENT OF CRIMINAL JUSTICE INFORMATION SERVICES & others.

484 Mass. 279

140 N.E.3d 923

BOSTON GLOBE MEDIA PARTNERS, LLC

v.DEPARTMENT OF CRIMINAL JUSTICE INFORMATION SERVICES & others.¹

SJC-12690

Supreme Judicial Court of Massachusetts, Suffolk..

Argued November 5, 2019

Decided March 12, 2020

Elizabeth N. Dewar, State Solicitor (Daniel J. Hammond, Assistant Attorney General, also present) for Department of Criminal Justice Information Services & another.

Jason M. Lederman, Assistant Corporation Counsel, for Boston Police Department.

Jonathan M. Albano, Boston, for the plaintiff.

The following submitted briefs for amici curiae: Ruth A. Bourquin & Matthew R. Segal for American Civil Liberties Union of Massachusetts.

Robert J. Ambrogi for Massachusetts Newspaper Publishers Association.

Pauline Quirion, Boston, for Greater Boston Legal Services & another.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

GANTS, C.J.

In the summer of 2012, the State police arrested a Barnstable law enforcement officer for operating a motor vehicle while under the influence. The State police arrested a Tewksbury police officer for the same offense in August 2014. Following this second incident, a reporter for Boston Globe Media Partners, LLC (Globe), made public records requests to the State police, seeking booking photographs and police incident reports related to the arrests. The State police refused to comply with the requests, claiming that the records were "criminal offender record information" (CORI), as defined in G. L. c. 6, § 167, and therefore were not "public records," as defined in G. L. c. 4, § 7, Twenty-sixth, because they were "specifically or by necessary implication exempted from disclosure by statute." The Globe also requested a police incident report involving an investigation into whether a District Court judge had taken another passenger's watch from a bin at a security checkpoint at Logan International Airport. The State police denied that request on the same basis.

In addition, the Globe made a public records request to the Boston police department for, among other things, the names of officers charged with driving under the influence, as well as the related booking photographs and incident reports. The Boston police department withheld the records on the same grounds as the State police had. The Globe appealed all of these denials to the supervisor of records (supervisor) in the office of the Secretary of the Commonwealth, who upheld the law enforcement agencies' decisions in each case.

In May 2015, the Globe brought suit against the State police, the Boston police department, and the Department of Criminal Justice Information Services (DCJIS), among others (collectively, law enforcement agencies), seeking a judgment declaring that the requested records must be disclosed under the public records law. On cross motions for summary judgment, a Superior Court judge ruled in favor of the Globe and declared that booking photographs of police officers arrested for alleged crimes and police incident reports involving public officials were not exempt from disclosure under the public records law. The law enforcement agencies appealed, and a single justice of the Appeals Court stayed the judgment "insomuch as the judgment requires the named defendants to provide access to the records that are the subject of this action CORI." We transferred the appeal to this court on our own motion. For the reasons that follow, we affirm the judge's decision, albeit on different grounds.²

Statutory background. This case requires us to attempt to harmonize the language and legislative purpose of two statutes: the public records law, G. L. c. 66, § 10, and the CORI act, G. L. c. 6, §§ 167 - 178B.

1. The public records law. The public records law, G. L. c. 66, § 10, governs the public's right to access records and information held by State governmental entities. Under the public records law, anyone has the right to access or inspect "public records" upon request. G. L. c. 66, § 10 (a ). "The primary purpose of the [public records law] is to give the public broad access to governmental records." Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-383, 764 N.E.2d 847 (2002). In enacting the public records law, the Legislature recognized that "[t]he public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner," Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158, 385 N.E.2d 505 (1979) ( Collector of Lynn ), and that "greater access to information about the actions of public officers and institutions is increasingly ... an essential ingredient of public confidence in government," New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Ct. of Bristol, 377 Mass. 404, 417, 387 N.E.2d 110 (1979) (Abrams, J., concurring).

"Public records" are broadly defined as "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 Massachusetts governmental entity. G. L. c. 4, § 7, Twenty-sixth. But "[n]ot every record or document kept or made by [a] governmental agency is a ‘public record.’ " Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 454, 870 N.E.2d 33 (2007). The Legislature has identified twenty categories of records that fall outside the definition of "public records" and are consequently exempt from disclosure under the public records law. G. L. c. 4, § 7, Twenty-sixth (a )-(u ). Here, only one exemption has been claimed by the law enforcement agencies: G. L. c. 4, § 7, Twenty-sixth (a ) (exemption [a] ) excludes records from disclosure where they are "specifically or by necessary implication exempted from disclosure by statute."

A public record holder may invoke exemption (a ) as the basis for withholding requested records where another statute -- the "exempting statute" -- expressly prohibits disclosure. See, e.g., Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 544 n.5, 362 N.E.2d 1189 (1977), citing G. L. c. 167, § 2 (copies of bank examination reports "shall be furnished to such bank for its use only and shall not be exhibited to any other person ... without the prior written approval of the commissioner"); G. L. c. 111B, § 11 (alcohol treatment records "shall be confidential"); G. L. c. 41, § 97D (all reports of rape or sexual assault "shall not be public reports"). Alternatively, a record may be withheld where the exempting statute protects the record from disclosure by "necessary implication," such as where the exempting statute prohibits disclosure as a practical matter. See, e.g., Champa v. Weston Pub. Schs., 473 Mass. 86, 91 n.8, 39 N.E.3d 435 (2015) (Federal statute "does not expressly prohibit disclosure of ‘education records,’ but it does condition receipt of Federal funds on the nondisclosure of education records").

Under the public records act, "a presumption shall exist that each record sought is public and the burden shall be on the defendant agency or municipality to prove, by a preponderance of the evidence, that such record or portion of the record may be withheld in accordance with state or federal law." G. L. c. 66, § 10A (d ) (1) (iv). Therefore, the burden rests with the law enforcement agencies to prove that the CORI act specifically or by necessary implication exempts the requested records from disclosure.

2. The CORI act. First enacted in 1972, the CORI act centralized the collection and dissemination of criminal record information in the Commonwealth. St. 1972, c. 805. See New Bedford Standard-Times Publ. Co., 377 Mass. at 413, 387 N.E.2d 110. It created a unified management system for all criminal record information, allowing, for the first time, the compilation of a comprehensive State criminal history for each offender (CORI report). St. 1972, c. 805, § 1. It also strictly limited dissemination of those State-compiled criminal histories to criminal justice agencies and other entities specifically granted access by statute. Id. By imposing these restrictions, the Legislature intended to address the need of criminal justice agencies to access criminal offender information while "embedded[ing] in the statutory public policy of Massachusetts" its "interest in promoting the rehabilitation and reintegration into society of former criminal defendants." Globe Newspaper Co. v. Fenton, 819 F. Supp. 89, 97 (D. Mass. 1993) ( Fenton ).

In the following years, groups such as employers, victim advocates, and the press began to voice dissatisfaction with the inaccessibility of criminal record information and challenged the constitutionality of the CORI act and related provisions. See, e.g., New Bedford Standard-Times Publ. Co., 377 Mass. at 405, 387 N.E.2d 110 (challenging constitutionality of CORI statute insofar as it limited public access to index of court records); Fenton, 819 F. Supp. at 90 (challenging inaccessibility of newly created electronic indices of criminal cases); Globe Newspaper Co. v. Pokaski, 684 F. Supp. 1132, 1132 (D. Mass. 1988), aff'd in part and reversed in part, 868 F.2d 497 (1st Cir. 1989) (challenging constitutionality of criminal record sealing under G. L. c. 276, § 100C ). After years of debate and gradual modification, see, e.g., St. 1990, c. 319; St. 1977, c. 691, the CORI act was substantially revised in 2010 by the enactment of CORI reform. St. 2010, c. 256. See Massing, CORI Reform -- Providing Ex-Offenders with Increased Opportunities without Compromising Employer Needs, 55 Boston Bar J. 21, 21 (2011) (discussing statutory history).

CORI reform created a new agency, DCJIS, to manage "data processing and data communication systems ... designed to ensure the prompt collection, exchange, dissemination and distribution of such public safety information as may be necessary for the efficient administration and operation of criminal justice...