Posted May 15, 2020. To settle a pandemic-related financial crisis at UMass Dartmouth, law faculty are not receiving research compensation in summer 2020. I will be away from my desk, May 16 to August 15. Blog posts will be sparse, and I will not receive email. On the upside, summer 🌞! If you need to reach me, please send a message through the faculty assistants’ office (Ms. Cain and Ms. Rittenhouse). Stay thirsty.

Friday, April 3, 2020

Boston Globe wins access to booking photos, incident reports involving arrests of police officers

In the Massachusetts Supreme Judicial Court on March 12, the Boston Globe won access to booking photographs and incidents reports related to arrests of police officers under the state open records law.

The case arose from the denial of multiple public record requests, including two following State Police arrests of local law enforcement officers for operating motor vehicles while under the influence in 2012 and 2014.  State police resisted disclosure, claiming the records were not public as part of the state's "criminal record offender information" (CORI) database, which is exempt from disclosure by statute.

The exemption of criminal record information systems is the rule rather than the exception in the United States, in theory, to protect personal privacy.  Sometimes persons are never charged, or even arrested, or are exonerated prior to court proceedings, and public policy disfavors sullying reputation by association with police action.  On the opposite end of the criminal justice process, there is concern that even a person who is convicted of a crime will never escape the reputational impact of police involvement, especially in the age of an internet that never forgets.  Critics of non-disclosure policy claim that secrecy undermines accountability, which is especially important for law enforcement; and treats the public paternalistically, as if people cannot understand the relative significance of different stages of involvement with the police and criminal justice system, including the significance of having done one's time.  This tension of competing policy aims, especially as it plays out in the electronic age, and especially as it relates to visual media, implicates "practical obscurity," a conundrum that has dogged access policy for more than four decades and also marks a flashpoint in the trans-Atlantic privacy debate.

Examining the open records law, even as amended by the Massachusetts legislature while appeal was pending, aiming to bolster the state's position on the privacy-access seesaw, the Supreme Judicial Court ruled the records not shielded by the CORI statute's exemption for criminal record information. Employing the rule of narrow construction of access exemptions, the court concluded, "[W]e cannot read exemption (a) so broadly as to shield all investigatory materials created by police from disclosure. We therefore conclude that the booking photographs and incident reports sought here are not absolutely exempt from disclosure as public records under exemption (a) 'by necessary implication' of the CORI act."

Moreover, though police had not argued the point, the court ruled the records not exempt as an unwarranted invasion of personal privacy, at least in the particular context of police as arrestees.  The privacy exemption calls for a balance.  The court explained, "On the privacy side of the scale, we generally 'have looked to three factors to assess the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources'" (citations omitted).  Also, "privacy factors include the risk of adverse collateral consequences to the individual that might arise from the disclosure of this criminal justice information. 'On the other side of the scale, we have said that the public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner'" (citation omitted).

When police are themselves accused of crimes, the balance that might otherwise favor the ordinary citizen swings in favor of public accountability, the court reasoned. "There is a substantial public interest in the disclosure of police incident reports regarding alleged offenses by police officers and public officials that do not result in arraignment. And disclosure of the booking photographs will eliminate confusion as to the identity of those arrested where they may have common names that may be shared by others."

The court's conclusions accord with norms in state access law in the United States.  Though criminal information systems on the whole usually are exempt from disclosure, individual incident reports related to arrest usually are not—notwithstanding the fact that an exempt criminal record database may comprise records that are not exempt individually.  (Booking photos, or mug shots, also, traditionally have not been exempt from disclosure as a class of record, though that has been changing in recent years, because of a cottage industry in privacy invasion, and even extortion, that's cropped up online.)  Personal privacy exemptions are sometimes held to protect personal identity ad hoc, within police records as a class, and incident reports without resulting arrest may be exempt from disclosure.  But personal privacy exemptions typically implicate a balance, and courts tend to favor access when public officials are under scrutiny, especially when law enforcement officers are suspected of violating the law.

The case is Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, No. SJC-12690 (Mar. 12, 2020) (Justia, Suffolk Law).  Chief Justice Gants wrote the opinion for a unanimous court.

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