Reinstein v. Police Com'r of Boston

• Decision Date: 19 June 1979
• Citation: 391 N.E.2d 881,378 Mass. 281
• Parties: , 5 Media L. Rep. 1875 John REINSTEIN v. POLICE COMMISSIONER OF BOSTON et al., 1 Boston Police Patrolmen's Association, Incorporated, Intervener.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 881

391 N.E.2d 881

378 Mass. 281, 5 Media L. Rep. 1875

John REINSTEIN v. POLICE COMMISSIONER OF BOSTON et al., ¹ Boston Police Patrolmen's Association, Incorporated, Intervener.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1979.

Decided June 19, 1979.

John Reinstein, Boston, pro se.

Nicholas Foundas, Boston, for defendants.

William B. Vernon, Marshfield, for intervener.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS & ABRAMS, JJ.

KAPLAN, Justice.

In this action, under statute, the plaintiff Mr. John Reinstein sought to compel the defendants Boston police department and the police commissioner of Boston to provide him with access to certain departmental records. A judge of the Superior Court, upon cross-motions for summary judgment, denied all relief and directed entry of judgment for the defendants. From that judgment the plaintiff appealed, and we brought the case here on our own motion. As we believe the plaintiff may be entitled to access to some parts of the records he requested, we shall reverse the judgment for further proceedings below. We begin by indicating how the records in question were created and of what, in general, they consist.

The records have to do with the discharge of weapons by police officers otherwise than under training or practice conditions. The department's rule 35, which governed from 1950 to 1974, justified discharge of a revolver by an officer in order to defend himself or others from death or serious injury, or to arrest or prevent the escape of a person who had committed a felony in the officer's presence, or to bring about certain other results; but the rule prohibited use of the weapon to aid in the arrest or stop the flight of one who had merely committed a misdemeanor. An officer who discharged a weapon "except when practicing with it" was required to inform his commanding officer, who in turn was to submit a written report of the incident to the superintendent, including an account of the circumstances, the injury if any inflicted, the care given to the injured, and the names of the officer and others involved.

Stricter standards for the use of deadly force under "street conditions," ² together with more elaborate requirements for the reporting and investigation of incidents, came in with rule 303, adopted by the department in 1974. ³ We provide a brief summary. An officer may discharge a firearm "(t)o defend himself or another (person) from an unlawful attack which he has reasonable cause to believe could result in death or great bodily injury"; also "(t)o apprehend a fleeing felon when the officer knows, as a virtual certainty, . . . that the subject has committed a felony during the commission of which he inflicted or threatened to inflict deadly force upon the victim, and . . . that there is substantial risk that the felon in question will cause death or great bodily injury if his apprehension is delayed." Use of warning shots is restricted as is firing at moving vehicles.

To monitor compliance with standards, and to subject standards to intelligent criticism with a view to their possible amendment, ⁴ rule 303 requires various reports and investigations of shooting incidents. The officer submits a detailed "incident report", ⁵ whereupon his commanding officer initiates an investigation of the event conducted, usually, by the officer's immediate supervisor. This eventuates in a report of findings to the commanding officer, who presents this report with his own recommendations to the police commissioner. All this must occur within twenty-four hours of the incident. In case a person has been wounded or killed, there is a supplemental investigation and report by the internal affairs division of the department. Final review is carried out by a "firearms discharge review board" of seven members: all are departmental officials or police officers of whom two officers are designated by the officer concerned in the incident. On the basis of the several reports and its independent investigation, the board makes findings regarding compliance with regulations by all concerned, and presents ultimate recommendations. Receiving this report, the commissioner may return it for any further consideration or report. He retains authority for final departmental disposition of the case. All the reports mentioned are lodged with the commissioner, the divisions of internal affairs and personnel, the ballistician, and the chairman of the review board (who is the superintendent-in-chief).

To return to the immediate facts: The plaintiff, an attorney serving the Massachusetts Civil Liberties Union, on February 1, 1977, wrote to the custodian of records of the Boston police department requesting permission to inspect and copy the records (meaning essentially the reports) relating to the discharge of firearms by Boston police officers during the period 1972 to 1976. ⁶ He cited G.L. c. 66, § 10(A ), which refers to "any public record," as defined compendiously, with stated exceptions, in G.L. c. 4, § 7, Twenty-sixth. ⁷ Promptly the custodian denied the request, claiming exemption under four clauses of the latter text. The plaintiff then asked the Supervisor of Public Records to intercede (see G.L. c. 66, § 10(B ), as appearing in St.1976, c. 438, § 2), ⁸ but, after in camera inspection by members of his staff, the Supervisor replied by letter that the records were exempt from disclosure because they contained criminal offender record information (CORI) as defined in G.L. c. 6, § 167 (and see § 172), and so were "specifically . . . exempted from disclosure by statute" (G.L. c. 4, § 7, Twenty-sixth, (A )), and were further exempt because they contained "investigatory materials" (Id., (F )). The Supervisor said, however, that access to a specific report might be proper if any CORI was deleted and it appeared that disclosure would not impede effective law enforcement.

In May, 1977, the plaintiff commenced the present action pursuant to G.L. c. 66, § 10(B ), ⁹ to secure access to the 1972-1976 records. The defendants answered claiming sundry exemptions, and the Boston Police Patrolmen's Association intervened on the defendants' side. In due course the plaintiff served interrogatories under Mass.R.Civ.P. 33, 368 Mass. 906-907 (1975), intended to elicit information about the structure and contents of the firearms reports. The defendants tendered some information, ¹⁰ but they objected to most of the interrogatories, primarily on the ground that they called for information whose exempt character was at issue in the case. At this point the plaintiff moved to compel answers to the unanswered interrogatories and, alternatively, to require the defendants to itemize and index the records and give detailed justification for the asserted exemptions. ¹¹ The plaintiff moved also for summary judgment on the theory that, with records presumptively public and subject to disclosure (see G.L. c. 66, § 10(C )), no adequate defense had been raised to the claim for access. Cross-moving for summary judgment, the defendants annexed an affidavit of the commissioner in which he asserted that the records contained CORI, and that disclosure would discourage witnesses from coming forward during investigations and would inhibit frank discussion by investigating officers. Attached was the letter of the Supervisor of Public Records. ¹² The plaintiff responded by an affidavit invoking Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974) ("When Affidavits are Unavailable"), and stating that he was not able to meet the commissioner's representations because the relevant material was under the defendants' exclusive control.

As noted, the judge granted summary judgment for the defendants. He said it was undisputed that the records contained CORI (the subdivision (A ) exemption). Further, the commissioner's "uncontroverted affidavit" indicated that the records constituted investigatory materials which might lead to intradepartmental discipline (subdivision (F )). Doubts on that score, according to the judge, were removed by the Supervisor's letter which was entitled to "great weight." ¹³ The judge said that his award of summary judgment "mooted" the plaintiff's motions to compel answers to interrogatories and for indexing and so he did not consider them further.

The judge's memorandum with order for judgment was dated June 30, 1978; judgment entered on July 3, 1978. It is perhaps of interest that there was no mention of the approval on June 27, 1978, of an amendment of § 10(A ) making clear what may not have been entirely evident before, ¹⁴ namely, that the right to access extended to any nonexempt "segregable portion" of a public record. St.1978, c. 294. ¹⁵ The amendment parallels a 1974 amendment of the Federal Freedom of Information Act. ¹⁶ It is applicable to the present dispute. See Lee Pharmaceuticals v. Kreps, 577 F.2d 610, 614 (9th Cir. 1978), and cases cited.

We cannot answer here and now whether there are nonexempt segregable portions of the firearms records, or, if so, what these portions are. But the questions arise quite naturally and should be pursued on remand. The defendants themselves in answer to interrogatories disclosed not only the number of persons injured or killed in the relevant incidents, but also their names. One can surmise by reference to rules 35 and 303 that the firearms records probably contain other information whose disclosure would be of considerable public interest and would offend no legitimate interest on the part of the government or private citizens. By way of illustration and again we speculate, we do not decide consider so much of the records as would disclose, for each of the years, the number, times, and places of incidents; number of incidents in which police fired first, or fired only after weapons had been fired by others; number of incidents in which violations were found at the several levels of investigation; classifications of violations...