Globe Newspaper Co. v. Police Com'r of Boston

• Decision Date: 05 April 1995
• Citation: 419 Mass. 852,648 N.E.2d 419
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: , 23 Media L. Rep. 1822 GLOBE NEWSPAPER COMPANY & another 1 v. POLICE COMMISSIONER OF BOSTON & another. 2

Page 419

648 N.E.2d 419

419 Mass. 852, 23 Media L. Rep. 1822

GLOBE NEWSPAPER COMPANY & another ¹ v. POLICE COMMISSIONER OF BOSTON & another. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Jan. 10, 1995.

Decided April 5, 1995.

Susan M. Prosnitz, Sp. Asst. Corp. Counsel (Carol A. Thompson, Asst. Corp. Counsel with her), for Police Commissioner of Boston.

Pamela L. Hunt, Asst. Atty. Gen., for Dist. Atty. for the Suffolk Dist.

Jonathan M. Albano, Boston, for the plaintiffs.

John M. Collins, Shrewsbury, for Massachusetts Chiefs of Police Ass'n, Inc., amicus curiae, submitted a brief.

Carl Valvo & Paul J. McCarthy, Boston, for Massachusetts Police Ass'n, amicus curiae, submitted a brief.

LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

The plaintiffs, Globe Newspaper Company and Sean P. Murphy, one of its reporters (whom we shall refer to collectively as Globe) brought this action for declaratory and injunctive relief in the Superior Court pursuant to the public records law, G.L. c. 66, § 10(b ) (1992 ed.), and G.L. c. 231A (1992 ed.), against the defendant the police commissioner of Boston (commissioner). The district attorney for the Suffolk district was permitted to intervene on the police commissioner's side of the dispute. (When the context suggests, we shall refer to the commissioner and the district attorney collectively as defendants.) The action sought to compel disclosure of materials compiled by the internal affairs division (IAD) of the Boston police department (department) in its inquiry into allegations of police misconduct during the investigation of the murder of Carol DiMaiti Stuart and the shooting of her husband, Charles Stuart. The case was tried before a Superior Court judge who, after conducting an in camera inspection of the materials, ordered the disclosure of most of the requested information, subject, in certain instances, to prescribed redactions. A stay of the judgment entered on the disclosure order was allowed by a single justice of the Appeals Court. The defendants appealed, and we allowed their joint application for direct appellate review. We agree with the judge's decision for the most part, but conclude that some of the information sought by the Globe is exempt from disclosure.

The background of the case is as follows. Following the October 23, 1989, murder of Carol DiMaiti Stuart (and the shooting of her husband, Charles Stuart), the Boston police department conducted a highly publicized investigation of the incident. During the course of the investigation, several citizen witnesses claimed that they had been coerced by the police into providing false information incriminating one Willie Bennett as the perpetrator of the crimes. The United States Department of Justice subsequently investigated numerous allegations of misconduct by the Boston police, and, on July 10, 1991, the United States Attorney for the District of Massachusetts released the results of the Federal investigation to the public in the form of a twenty-page report and press release (report). Although the United States Attorney stated in the report that he chose not to prosecute any members of the Boston police department for Federal criminal civil rights violations, the report publicly alleged in detail specific instances of serious police misconduct. ³ The report also disclosed the identities of citizen witnesses in the Federal investigation and summarized information that the witnesses had provided to the police and to the Suffolk County grand jury.

As a result of the report, the IAD of the department conducted its own investigation into the allegations of police misconduct during the Stuart investigation. In addition to examining materials compiled during the criminal investigation, which included hotline tips, audio tapes, transcripts of witness interviews, and grand jury testimony, IAD investigators interviewed several citizen witnesses and police officers. At a press conference held in August, 1992, the department released the results of its internal investigation in a fifty-three page public document entitled, "The Stuart Investigation: A Response to the U.S. Attorney's Report" (response). In addressing at length each of the specific allegations contained in the report, the response summarized, in some detail, witness interviews conducted during both the IAD and criminal investigation. The response also summarized (also in some detail) IAD interviews of police officers and referred to the grand jury testimony of several citizen witnesses.

By letter dated September 15, 1992, the Globe requested that the commissioner release the materials compiled during the police department's IAD investigation. The Globe relied on G.L. c. 66, § 10(a ), which requires, upon request, disclosure of "any public record," as defined in G.L. c. 4, § 7, Twenty-sixth (1992 ed.). The commissioner denied the Globe's request, asserting that statutory exemptions protected the information from disclosure. The Globe then initiated the present action.

The judge held a trial at which he heard testimony from several witnesses. ⁴ The judge decided to conduct an in camera "line-by-line" examination of all the materials, ⁵ after which he filed a twenty-five page memorandum entitled "Rulings and Order" extensively analyzing the materials in light of the issues raised by the parties. The judge ruled that some materials, or parts thereof, were exempt from disclosure under either the statutory exemption, G.L. c. 4, § 7, Twenty-sixth (a ), ⁶ or the privacy exemption, G.L. c. 4, § 7, Twenty-sixth (c ). ⁷ These rulings are not disputed on appeal. The judge also concluded that the remaining materials were not protected by either the privacy exemption or the investigatory exemption, G.L. c. 4, § 7, Twenty-sixth (f ). ⁸ The judge indicated that the considerable amount of previous publicity given to much of the information in the report and the response had influenced his decision to order disclosure of materials that might otherwise be protected. We are concerned with the defendants' contentions that the disputed materials which the judge ordered disclosed are exempt from disclosure. We have organized the materials into five categories: transcripts and audio tapes of citizen witness statements, police officer statements and related materials, grand jury testimony, homicide hotline records, and other miscellaneous items. We shall discuss each category after first setting out general legal principles that apply to the dispute.

Under the public records law, there exists "a presumption that the record sought is public," ⁹ G.L. c. 66, § 10(c ), and a government agency which refuses to comply with an otherwise proper request for disclosure has the burden of proving "with specificity" that the information requested is within one of nine statutory exemptions to disclosure. Moreover, the existence of some exempt information in a document will not "justify cloture as to all of it," Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290, 391 N.E.2d 881 (1979), because "the right to access extend[s] to any nonexempt 'segregable portion' of a public record." Id. at 287-288, 391 N.E.2d 881.

Application of the privacy exemption, see note 7, supra, requires a balancing between any claimed invasion of privacy and the interest of the public in disclosure. See Reinstein v. Police Comm'r of Boston, supra at 292, 391 N.E.2d 881; Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156, 385 N.E.2d 505 (1979); Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 818, 375 N.E.2d 299 (1978). "Where the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield to the public interest." Attorney Gen. v. Collector of Lynn, supra, 377 Mass. at 156, 385 N.E.2d 505. In identifying the existence of privacy interests, we have suggested for consideration: whether disclosure would "result in personal embarrassment to an individual of normal sensibilities," id. at 157, 385 N.E.2d 505; whether the materials sought contain " 'intimate details' of a 'highly personal' nature," Hastings & Sons Publishing Co. v. City Treasurer of Lynn, supra, 374 Mass. at 818, 375 N.E.2d 299, quoting Getman v. NLRB, 450 F.2d 670, 675 (D.C.Cir.1971); and whether "the same information is available from other sources," Attorney Gen. v. Collector of Lynn, supra, 377 Mass. at 157, 385 N.E.2d 505. Against these, and other case-specific relevant factors, a judge must weigh the public interest in disclosure. We have also 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." Id. at 158, 385 N.E.2d 505.

Application of the investigatory exemption, see note 8, supra, does not contemplate a balancing test. Rather, the inquiry is whether the materials requested are "investigatory materials necessarily compiled out of the public view," and, if so, whether the agency resisting disclosure has demonstrated that their release "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." Apart from grand jury testimony, which is in a separate category, the materials compiled here are "investigatory materials necessarily compiled out of the public view." ¹⁰ See Reinstein v. Police Comm'r of Boston, supra, 378 Mass. at 290-291, 391 N.E.2d 881. See also Stern v. FBI, 737 F.2d 84, 89 (D.C.Cir.1984); Aspin v. Department of Defense, 491 F.2d 24, 30 (D.C.Cir.1973). The question under the investigatory exemption therefore becomes whether the disclosure ordered would be so prejudicial to effective law enforcement that it is in the public interest to maintain secrecy. In deciding that question, we keep in mind that the exemption aims at "the prevention of the disclosure of...