'Behind Bars': Petroff article explains how secrecy shields private prison labor from public scrutiny

Alyssa Petroff, a judicial law clerk at the Supreme Judicial Court of Maine, has published Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool in the new volume 4, number 2, of The Journal of Civic Information.

In a foreword, Journal Editor David Cuillier, professor of journalism at the University of Arizona, wrote,

Alyssa Petroff educated me on the exploitative private for-profit prison complex in my home state of Arizona—shrouded in secrecy because of a public records law interpreted in favor of corporations. I was astounded by her research findings.... She has a great career ahead of her, based on the eye-popping revelations in Behind Bars....

An Arizona native and 2022 law school graduate, Petroff started work on the article with a paper in my Freedom of Information Law class. Her finished work won the 2021-2022 student writing competition of The Journal of Civic Information, an honor co-sponsored by the Brechner Center for Freedom of Information and accompanied by a $2,000 cash prize.

Here is the abstract:

Prisons run by private corporations in the United States have at hand a pool of individuals who are, by law, required to work while they are incarcerated. This article examines the secrecy behind the use of inmate labor, including on-the-job injuries  sustained by prisoners, focusing on the state of Arizona as a case study. Ultimately, the  article recommends that states create oversight boards of private prison systems or allow private prison records to be accessible through already existing public records laws.

Attorney Petroff was a student also in my Comparative Law class. So I benefited immensely and from her presence and participation, ceaselessly inquisitive and gracious, in law school. I share Professor Cuillier's enthusiasm for her budding career as she cuts her teeth in judicial writing at the Maine high court.

The article, again, is Alyssa Petroff, Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool, 4:2 J. Civic Info. 1 (2022).

Upcoming NFOIC Summit features access all-stars

Access-to-information (ATI, RTK, FOI) enthusiasts are invited and encouraged to attend the online 2022 summit of the National Freedom of Information Coalition on October 18-20.

My FOI seminar class and I will be there.

From the summit home page at Whova, this year's program "will include two hands-on training seminars and over a dozen of sessions this year. Hear real stories from real people, learn the best approaches to enforcing FOI Laws, examine the public's right now in the era of polarization, and more."

Summit participants include experts and champions of transparency, open government, and First Amendment rights. They also include journalists, public employees, govtech and civictech individuals, and anyone who are interested in democracy and accountability."

Speakers include (but are not limited to) some heroes of mine in the academy, notably David Cuillier, University of Arizona; Daxton "Chip" Stewart, Texas Christian University; A, Jay Wagner, Marquette University; Margaret Kwoka, Ohio State University; and Amy Sanders, University of Texas at Austin.

The lineup also features some FOI legends who have worn many hats, including Frank LoMonte, now at CNN and most recently executive director of the Brechner Center; Michael Morisy of MuckRock; Colleen Murphy of the Connecticut FOI Commission; Tom Susman of the American Bar Association and previously of Ropes & Gray; and Daniel Libit, founder of The Intercollegiate and Sportico and tireless advocate for accountability in college athletics.

This year's agenda covers ORA/OMA litigation and enforcement, college athlete publicity rights, messaging apps, doxxing, law enforcement video, legislative transparency, and much more.

I also look forward to seeing the latest research, which wins consideration for publication in the Journal of Civic Information (for which I'm privileged to serve on the Editorial Board).

Registration is affordable and online here. #FOISummit22.

If you've read this far, you might be interested as well in a free public series of online classes recently announced by the New England First Amendment Coalition (NEFAC), "Open Meeting Law: How Newsrooms Respond to Executive Session Secrecy."

Judge excoriates city in public records row

Worcester, Mass., City Hall
(Mass. Office of Travel & Tourism CC BY-ND 2.0 via Flickr)

In a remarkable opinion in January 2022, the Massachusetts Superior Court excoriated the city of Worcester, Massachusetts, for failure to comply with a newspaper's public records request investigating police misconduct.

In 2018, GateHouse Media, owner of the Worcester Telegram & Gazette and a subsidiary of Gannett, filed a Massachusetts freedom of information act (FOIA) request for files related to investigations of Worcester police in civil rights matters. The Telegram's interest was spurred by Worcester attorney Hector E. Pineiro, who was upset by police interaction with his son.

The city resisted production of the records because, it argued, they were part of ongoing litigation involving police officers. The Massachusetts FOIA has no litigation exemption per se, but officials shield some records under the deliberative process exemption, relating to policy positions still in development. The city grossly over-relied on that strategy, the court concluded in June 2021 after a rare FOIA trial.

GateHouse Media persisted with its case even after shaking lose the records, demanding that the city be permanently enjoined from similar baseless argument in the future and be charged with punitive damages. In January, the Superior Court, per Justice Janet Kenton-Walker, substantially sided with GateHouse, finding that the city had acted in bad faith and needlessly protracted the litigation and costs for years.

Not only did the city rely erroneously on the text of statute, Justice Kenton-Walker opined, it "cherry-picked certain language from ... cases, taking it out of context." And the city had an ugly history with the same issue. The court explained:

[T]he court cannot ignore that [the city] originally took [its] position in spite of the fact that the city was one of the parties to, and thus aware of, Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester (Mass. App. Ct. 2003). In that case, the Appeals Court held that materials in a "Worcester police department internal affairs file ... compiled during an investigation of a citizen complaint," were public records. That court stated explicitly that "[i]t would be odd, indeed, to shield from the light of public scrutiny as 'personnel [file] or information' the workings and determinations of a process whose quintessential purpose is to inspire public confidence" (emphasis added).

The court declined to award an injunction, reasoning that the threat of litigation should provide sufficient deterrence. "Simply put, the court expects the city to follow the law now and in the future," the judge wrote.

But the court did order the city to pay $5,000 in "punitive damages." That's at the top of a range allowed by state law when public officials act in bad faith. The money goes to the state Public Records Assistance Fund, rather than to the plaintiff.

According to the Telegram in February, Pineiro said that "he believes the city fought 'tooth and nail' to avoid producing the records because it did not want the public to see a police internal disciplinary process he labeled a 'sham.'"

The city wrote in a statement, the Telegram reported, that it would "move on" and not appeal.

The case is GateHouse Media, LLC v. City of Worcester, No. 1885CV1526A (Mass. Super. Ct. Jan. 26, 2022).

BU prof's death was tragic accident; investigation shows bad policy, but not criminal negligence

A Savory Tort Investigation

I've posted for public download files of the investigation into the matter of Boston University (BU) Professor David K. Jones, who died on September 11, 2021, when he fell through a rusted stairway near a Massachusetts Bay Transportation Authority (MBTA) station.

When the Suffolk County (Mass.) DA announced in January that no criminal charges would be filed in the death, I requested the investigative files under state public records law. Record Access Officer Claudia Buruca filled my request promptly and kindly (in May; I'm just getting around to it). The ZIP file I created in Dropbox runs about 97.3 megabytes and includes documents, images, and 911 audio, all appropriately redacted by the DA's office to protect the privacy of the decedent and family.

I wrote about the incident here last October. A professor in the School of Public Health at BU (in memoriam) and husband and father of three in Milton, Mass., Jones was a runner and was out training for a marathon. He mounted a stairway on MBTA property in Boston that connected Old Colony Avenue, below, with Columbia Road, passing overhead. Four treads in the uppermost part of the stairway were missing, and Jones fell through, about 20 feet, to his death.

In reference to the DA's decision on criminal charges, I wanted to know more about why the rusted stairway was accessible to Jones. The file (in accordance with subsequent news reporting) revealed that demolition of the stairway had been planned, but was delayed by confusion over what state agency was responsible. In the meantime, the stairway was blocked at top and bottom. The stairway has been demolished since.

A warning: in the following paragraphs I will describe the evidence dispassionately, and the details might be troubling to some readers, especially if you knew Jones.

All photos are from the investigative file.

It appears that the stairway was well blocked at the top by a jersey wall, fencing, and signage. It was not as well blocked at the bottom. There was a high, temporary fence strung across the alighting threshold. Jones would have to have gone around the fence knowingly and deliberately. But doing so was not hard.

A Google Street View image from November 2020 shows the fence footing sitting well past the stairway corner.

At the left end of the alighting handrail, the fencing was anchored to a vertical steel post, which stood upon a rectangular steel footing. A Google Street View image from the preceding year shows the footing set out well past the end of the stair, so the fencing extended across the threshold and then a prophylactic foot or more. Also, while an apparently older image in the investigative file shows a "Danger / No Trespassing" sign affixed to the fence at the bottom of the stairway, that sign appears to have gone missing by the time of the Google Street View image in November 2020.

Accident-scene images show that the footing had migrated to the corner of the stairway footing and angled to 45 degrees. So a narrow gap between the end of the handrail and the start of the fencing left the stairway more readily accessible. Also, the "Danger" sign still is missing.

Either way, it was never very difficult for a person to squeeze around the end of the fence and onto the stairway. There is video surveillance of Jones walking—not running—up the stairs, and then of him falling. But no camera captured how he circumvented the fence at the bottom, nor what happened when he encountered the gap in the stairs.

I had assumed, based on my own experience as a runner, that Jones had run up the stairs, probably looking up and ahead, and lost his footing at the missing treads. So I was surprised to see that he walked up. Also surprising, about nine seconds, give or take, elapsed between his disappearance from camera view, moving up the stairs, and his falling back through the camera view. That's more time than would have been needed to go the rest of the way. One possibility is that he lost his footing, but was able to hold on to something for a short time before falling. Another possibility is that he saw the gap, tried to circumnavigate it, and failed. There's no way to know.

Whatever the unknown circumstances, personally, I am satisfied that the DA made the right call. The delay in demolition of the stairway, the too easily circumventable fencing, and the missing danger sign significantly and unnecessarily exacerbated the risk of injury or death and evidence bad public policy. But the conditions don't, in my mind, rise to the level of criminal negligence, which involves willful ignorance of an obvious risk of harm—much closer to civil recklessness than to civil negligence. For Jones's part, he had to know that he was taking some risk in circumventing the fencing. And I say that mindful that I've made some bad choices myself in the past, so there but for the grace of God....

Rusted treads that had not yet detached.

Even in the absence of criminal negligence, it would be nice to know that the bad practices of demolition delay, circumventable fencing, and missing danger signs are being addressed by the MBTA. To be fair, the MBTA should be lauded for having closed the stairway before an accident happened in the absence of barriers.

At the same time, why did the staircase rust so to begin with? Ironically, Jones worked as a public health scholar studying social risk factors. Bigger questions loom about our aging infrastructure and who pays the price when it fails.

State constitutional law offers untapped potential to bolster advocacy in freedom of information

The Vermont Supreme Court relied on the 1777 Vermont
Constitution, as amended in 1786, to support access to
information under the public records act (PRA, or FOIA)
in 2021.

In the summer, two third-year law students published in the Journal of Civic Information a superb investigation highlighting the untapped potential of state constitutional law as a tool in access advocacy in the United States.

Among the many ways in which the U.S. Constitution shows its age is its lack of a right of access to information (ATI). ATI has become a recognized human rights norm in modern constitutions and regional instruments around the world, while the concept in U.S. federal law remains relegated to statute: the Freedom of Information Act (FOIA), which once was landmark yet today suffers from significant dysfunction. For my own part, I have examined the significance of  this divergence relative to the problem of privatization in the U.S. FOIA and the South African Promotion of Access to Public Information Act (PAIA).  I spoke last month to the U.S. FOIA Advisory Committee re same (HT).

The constitutional lag is not characteristic of all U.S. states.  By the count of University of Florida Levin College of Law students Jessica Terkovich and Aryeh Frank, ATI is recognized in the constitutions of seven states: California, Florida, Illinois, Louisiana, Montana, New Hampshire, and North Dakota.  In their article, Terkovich and Frank examined case law in these states to see how the constitutional provisions are implicated.

The researchers found that the constitutional provisions were not realizing outcomes in ATI litigation in these states all that different from outcomes that might be reached under the states' statutory expressions of ATI.  Rather than concluding that the constitutional provisions are inconsequential, however, Terkovich and Frank concluded from the evidence that constitutional ATI is under-used as a source of law to bolster access advocacy.

Their reasoning resonates with me.  When I was a newly hatched academic in the 1990s, I was enchanted by an examination copy of a casebook on state constitutional law.  (Lexis and West have current offerings.)  I was never able to swing the course offering, but the subject informed my teaching and research.  Accordingly, I've always encouraged students to consider state constitutional approaches to legal problems.

Often, state high courts recite by rote the default position that they interpret state constitutional rights as merely co-extensive with federal rights; the pairings are construed in pari materia.  The proposition that the free-press-and-speech provision of Article XVI of the Massachusetts Declaration of Rights is co-extensive with the First Amendment to the U.S. Constitution was reiterated recently in the scrap over a Boston flagpole now bound for the U.S. Supreme Court.

Courts might reflexively choose the easier path, shrugging off the burden of state constitutional interpretation.  But they can readily embrace state constitutionalism when it suits their needs.  The Supreme Court of Arkansas long construed the 1874 state constitutional guarantee against unreasonable search and seizure in pari materia with the federal Fourth Amendment.  Until they didn't.  When the U.S. Supreme Court bounced back a state high court disposition as erroneous under the Fourth Amendment, the nonetheless jurisprudentially conservative Arkansas court, in 2002, suddenly discovered distinct meaning in the state constitution to support its earlier conclusion in the defendant's favor.

That result could not have happened if criminal defense lawyer John Wesley Hall had not made the argument.  And that possibility, that the state constitution could mark the difference between liberty and imprisonment, was exactly why Hall included the Hail Mary claim despite longstanding precedent on the in pari materia approach, he once told me.

The potential for potency in a state constitutional claim is all the greater when the right at issue is expressed in the state constitution, but not in the federal Constitution, as is the case for ATI.  And the potential is not limited to the seven states that Terkovich and Frank analyzed.  Just in September, the Vermont Supreme Court extended its ATI law, the Public Records Act (PRA), to shine sunlight on the records of a private contractor responsible for healthcare in state prisons.

Vermont is not on Terkovich and Frank's list of seven.  Nevertheless, in Human Rights Defense Center v. Correct Care Solutions LLC, the Vermont Supreme Court relied on exhortative language—previously held unenforceable by private cause of action—dating to 1786 in the state declaration of rights: "That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them."

The article is Jessica Terkovich and Aryeh Frank, Constitutionalizing Access: How Courts Weigh State Constitutional Claims in Open-Government Litigation, 3(1) J. Civic Info. 1 (2021).

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay

A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.

FOIA requesters need protection against retaliation; in egregious case, court allows First Amendment theory

Intersection of state highways 42 & 61 in Conyngham Town, Pa.
(2019 photo by Mr. Matté CC BY-SA 3.0)

A bizarre FOIA case decided by the Third Circuit suggests that use of an open records act in the public interest triggers constitutional protection against retaliation under the First Amendment.

A businessperson and landlord in Conyngham, Pennsylvania, John McGee used the state freedom of information act (FOIA), called the Right to Know Act, to investigate his suspicions of financial malfeasance in town government.  A town supervisor then sent to McGee, you read that correctly, a demand for private business information, purportedly issued in the name of the town and under the authority of the FOIA.

McGee asked the board of supervisors for an explanation, and they refused to give any.  In a lawsuit, McGee alleged violation of substantive due process rights and the First Amendment.  He alleged that he did not know that the town's demand was unlawful and unenforceable.

The district court dismissed both counts; the Third Circuit reversed and remanded on the First Amendment claim.  The court explained:

In order to prevail on a retaliation claim under the First Amendment, “a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp.... (3d Cir. 2006). There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request [supervisor Linda] Tarlecki gave him.

Only the middle prong was at issue on appeal, and the court found sufficient evidence for McGee to fend off summary judgment.  The test for deterrence is objective, the Third Circuit emphasized, so it doesn't really matter whether McGee was deterred as a matter of fact.

What intrigues me about the case is the apparently non-controverted question of element (1).  The Third Circuit opinion is ambiguous on what serves so self-evidently as McGee's constitutionally protected conduct.  McGee previously had been critical, in public testimony, of the board of supervisors for how it managed the housing code, but that doesn't seem to be the impetus for retaliation here.  His FOIA request may be construed as a petition of government or as a precursor to further public criticism.  The court did not specify.

In the law of the United States, at the federal level and in most states, requesting access to information is a statutory privilege, not a constitutional right per se.  There is a strong argument that the distinction is immaterial to attachment of the First Amendment right to petition to a FOIA request.  But de facto, in my work in FOIA advocacy, retaliation against FOIA requesters is a real and serious risk.  When asked for counsel by persons contemplating use of FOIA to investigate government, I warn would-be requesters of the possibility of retaliation.

If the First Amendment affords protection against retaliation, it's not an easily won theory.  First, there are practical problems.  Finding an attorney willing to bring a First Amendment claim against government is neither easy nor cheap.  Civil rights litigation and First Amendment law are both complicated.  Attorneys who practice in civil rights prefer the familiar patterns of discrimination and harassment based on race or gender.  In small legal communities such as Arkansas's, attorneys are loath to sue sugar-daddy government.  The thin possibility of winning attorney fees, even with a multiplier, upon a convincing legal victory is not enough to incentivize counsel.

Second, legal problems loom on the merits.  Usually problematic is the third element, causation.  The conduct here in McGee is unusual in its blatant motive.  Ordinarily, when local officials deny zoning variances, liquor licenses, or other privileges to applicants who happen to be accountability mavens, the causal connection cannot be shown to a constitutionally satisfactory certainty.

Element (1) is often a problem, too, because would-be requesters are also often would-be whistleblowers.  Under the muddled constitutional jurisprudence of the rights of public employees, the First Amendment does not preclude being fired for blowing the whistle on malfeasance in one's government workplace, much less the act of filing a state FOIA request to the same end.

There's a cruel irony of inefficiency in our First Amendment jurisprudence in that public employees are least protected when they speak of what they know best.  The jurisprudence rather favors being a team player in government.  Defectors, however righteous, must seek protection in statute, where there might be none.

When I worked on FOIA advocacy issues in Arkansas, before I moved to Rhode Island in 2011, I aided Reps. Dan Greenberg and Andrea Lea with 2009 H.B. 1052, which amended the state whistleblower protection statute with express protection for the use of FOIA.  Opponents of the bill argued that it was unnecessary, because existing law protected state employees in communicating concerns to elected officials.  My experience suggested that an elected official carelessly chosen was as likely to burn a whistleblower as to facilitate accountability.

More aggressive protection of FOIA requesters should be the norm throughout the United States.  Retaliation should not have to be as overtly wrongful as in McGee to trigger protection, whether statutory or constitutional.

The case is McGee v. Township of Conyngham, No. 20-3229 (3d Cir. Sept. 23, 2021).  U.S. Circuit Judge Kent A. Jordan wrote the opinion of a unanimous panel that also comprised Judges Marjorie Rendell and David J. Porter.  HT @ Prof. Rob Steinbuch and Prof. Eugene Volokh (Volokh Conspiracy).

Latest installment of Trump family litigation saga includes tortious interference claim against media

A leaked Trump 1040 from 2005

Former President Donald Trump has sued his niece, Mary Trump, and The New York Times Co. in the latest installment of intrafamilial litigation related to Mary's 2020 book, Too Much and Never Enough.

Filed yesterday in Dutchess County, New York, this latest lawsuit (complaint at CNS; Times's own coverage) mainly alleges breach of contract in the earlier settlement of litigation by Mary against Donald over the handling of the estate of Donald's father, Fred, who died in 1999.  I wrote on the course blog for my Trump Litigation Seminar in 2020 about another lawsuit, which is ongoing, by Mary against Donald over the estate of her father, Fred, Jr.; and about a suit by Donald's brother Robert, who died in 2020, which failed to enjoin publication of Mary's book.

The instant complaint alleges that Mary Trump was the source of Trump tax records published by The New York Times in its 2020 exposé.  The bits that interest me are counts of tortious interference with contract and of "aiding and abetting" tortious interference—or the civil equivalent of aiding and abetting, more accurately described as "providing substantial assistance or encouragement"—against the Times.  The complaint alleges that the Times "relentlessly" encouraged Mary to leak the tax records while knowing full well that doing so would breach her confidentiality agreement.

An intentional tort, tortious interference is not confined to business or media, though it's often classified as a "business tort," its usual injury being economic loss.  And it's often included in mass comm law treatments as a "media tort," because it's sometimes deployed against news media.

The paradigmatic case of an interference tort leveled against news media is the threat of Brown & Williamson Tobacco to sue CBS for its 1995 60 Minutes interview with whistleblower-scientist Jeffrey Wigand in violation of Wigand's non-disclosure agreement.  There is a classic scene in the feature film about the matter, The Insider, in which CBS producer Lowell Bergman (Al Pacino) loses his marbles upon admonition by CBS counsel Helen Caperelli (Gina Gershon) that truth is not a defense to interference, rather is an aggravating factor.  "What is this, Alice in Wonderland?" Bergman wonders aloud.  The instant Trump case is compelling for its similarity to the Insider facts.  

Interference as a media tort in the public imagination, or at least the lawyer-public imagination, surfaces periodically.  I wrote about the issue in 2011 when Wikileaks for a while threatened to spill the secrets of big banks.  (That fizzled.)  The high incidence of non-disclosure agreements in settlements of Me Too matters, and the former President's enthusiasm for NDAs combined to fuel another spurtive engagement with the issue in recent years. 

The issue prompts sky-is-falling missives from media because the role of, or any role for, the First Amendment as a defense to tortious interference is fuzzy.  In reality, the problem rarely gets that far.  Without unpacking the nitty gritty, it suffices to say that tortious interference has public policy built into its rigorous heuristic.  It is prohibitively difficult to press the tort against a publisher operating with at least a gloss of public interest.

The Trump complaint tries to circumnavigate that problem by accusing the Times of profit motive in its pursuit and publication of the tax records.  But the history of tort litigation against mass media is littered with failed attempts to drive the stake of profit-making through the heart of the journalistic mission.  Whatever degradations have afflicted mass media in our age of misinformation, no court is going to buy the argument against the Times on that score, at least not on these facts—cf. Palin v. N.Y. Times (N.Y. Times), in which the alleged editorial misconduct is substantially more egregious.

The case is Trump v. Trump, Index No. 2021-53963 (N.Y. Sup. Ct. filed Sept. 21, 2021).

Court rejects qui tam suit against big banks because whistleblower relied on publicly available data

"Big Ballin' Money Shot" by Louish Pixel CC BY-NC-ND 2.0

A whistleblower alleged that a who's who of big banks is improperly manipulating the municipal bond market to profit at the expense of Massachusetts taxpayers.  But the Massachusetts high court today rejected the whistleblower's lawsuit because he relied on public data.

This case is of interest because it arises under, and narrows, a state false claims act.  With the federal government doling out billions of dollars in pandemic relief to corporate America, I've predicted, and it doesn't take a crystal ball, that we're going to see a rise in corruption and a corresponding rise in enforcement actions.  One key enforcement mechanism is a false claims act.  In anticipation of good work to be had for lawyers in the false claims vein in coming years, I added the subject this spring to coverage in my 1L Torts II class.

False claims cases, or "qui tam actions," allow any person, a member of the general public called "a relator," to bring a lawsuit on behalf of the government, that is, the public, to recover money lost to fraud or misfeasance.  Derived conceptually from Roman law and carried on in Anglo-American common law for centuries, "qui tam" is short for a Latin phrase meaning one who sues on behalf of the king and for oneself.  Relators are incentivized by being entitled to a cut of any recovery.  Qui tam is authorized in the United States by federal law (§§ 3729-3722, and at DOJ) and the laws of many states (at Mass. AG), varying in their particulars, and also can be a part of sectoral enforcement mechanisms, especially in healthcare and finance.

In the instant case, relator "B.J." Johan Rosenberg, an investment analyst and capital adviser with experience in municipal securities, alleged that banks are pricing municipal bonds and manipulating the market in ways that profitably breach their obligations to their public clients.  Defendants in the Massachusetts case include Chase, Citi, Bank of America, Merrill Lynch, and Morgan Stanley.

The Supreme Judicial Court (SJC) dug into the particulars, which make my eyes glaze over and remind me why I have a financial adviser.  Suffice to say that Rosenberg understands this stuff well.  In 2019, Bloomberg described him as the "mystery man behind $3.6 billion in muni lawsuits," referring to qui tam actions in California, Illinois, and Massachusetts.  In 2015, Bloomberg reported, Rosenberg patented "MuniPriceTracker," a software designed to "ferret out Wall Street chicanery."

"If we're going to have software patents, let's at least have a level playing field"

by Opensource.com CC BY-SA 2.0

Rosenberg's analytical software is key in the instant case, and there the problem arises.  The false claims act in Massachusetts law (§§ 5A to 5O), as in federal law, bars claims based on publicly available information, whether from government reports or "news media."  The theory is that a qui tam statute should incentivize whistle-blowing by persons privy to information that the government and public are not, rather than potentially rewarding someone who rushes to the courthouse with old information.  As the SJC put it: "Where the essential features of an individual's purported chicanery already have been illuminated, ... affording a private party an incentive to bring suit is unwarranted, as it would add nothing to the Commonwealth's knowledge[.]"

The tricky bit in the instant case is that Rosenberg ran his software analysis on publicly available data.  That sourcing disallowed his action.  The court reasoned: "[I]t suffices that other members of the public, albeit with sufficient expertise and after having conducted some analysis, could have identified the true state of affairs by conducting the same data-crunching exercise as did the relator, using the data publicly available on the [Electronic Municipal Market Access] website."

Well, maybe.  To me, the phrase, "with sufficient expertise" is working overtime in that reasoning.  Rosenberg's method is sophisticated enough to be patent-worthy.  I don't think the average taxpayer spends weekends crunching market numbers, however publicly available they are.  And there's no evidence that anyone's doing it at the AG's office, either.  I worry that this narrowing of false claims to exclude "sweat of the brow" extrapolation from public records ill equips society to respond to sophisticated corporate malfeasance that can be revealed only by equally sophisticated detective work.

But I've already confessed my ignorance of finance.  You can read the 36-page opinion and decide for yourself.  Or choose among the views of the amici: the CFA Institute and Taxpayers Against Fraud Education Fund supported Rosenberg, and the Greater Boston Chamber of Commerce and New England Legal Foundation supported the banks.

The case is Rosenberg v. JPMorgan Chase & Co., No. SJC-12973 (Mass. May 11, 2020).  Justice Dalila Wendlandt wrote the opinion, affirming the lower court, for a unanimous SJC of six justices.  She was an accomplished patent attorney before going on the bench.

State DA cannot shield FBI records from public disclosure under federal FOIA exemption

The federal Freedom of Information Act cannot be used to block public access to FBI records in the hands of state law enforcement, the Massachusetts Supreme Judicial Court ruled on New Year's Eve.

Rahim in a yearbook photo obtained by CNN from the Brookline library.

In 2015, an agent of the Federal Bureau of Investigation (FBI) and a Boston police detective shot and killed Usaamah Rahim when he approached officers and refused to drop a 13-inch knife.  Rahim was under investigation by a Joint Terrorism Task Force for suspected ties to the Islamic State of Iraq and the Levant (ISIL, or ISIS).  The officers were cleared in the shooting.

In 2017, under the Massachusetts public records law (PRL), the district attorney (DA) gave Rahim's mother access to more than 1,100 documents in the investigation.  However, she was denied access to documents that the FBI had loaned to the DA and designated as confidential.

That denial was in error, the Court ruled.  In conjunction with the federal district attorney and the FBI, the DA argued in court that the loaned records could not be disclosed under state law because the records are owned by the federal government, or, alternatively, that the incorporation of "other laws" as disclosure exemptions in the Massachusetts PRL required the operation of disclosure exemptions in the federal Freedom of Information Act (FOIA) and federal Privacy Act.

The Court rejected both arguments.  First, the Massachusetts PRL turns expressly on the receipt (or creation) of records by public officials, not ownership.  "If every public records request also required the requestor to conduct something akin to a title search," the Court reasoned, "then the public would necessarily be stymied in its quest for greater government transparency."

Second, the Court opined that the federal FOIA and Privacy Act both, on their own terms, apply to federal agencies, so are not compulsory on state officials.

Both holdings are consistent with nationwide norms in freedom of information law.  Ownership is sometimes invoked as a useful concept when a state court struggles to discern the difference between, for example, a family photo on the desk of a state employee from the employee's work product.  But as the Massachusetts Court recognized, that analysis breaks down quickly in practice; ownership of records as property is a red herring in access analysis.  The better analysis anchors application of public records law in the laudable statutory purposes of transparency and accountability.  There is no doubt that transparency in law enforcement investigatory records serves the interest of public accountability.

Likewise, the use of the federal law to bind state officials would have been a perversion of the accountability mechanisms in the federal FOIA and Privacy Act, and could be construed even as a violation of the Tenth Amendment.  States have recognized instances when federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), arguably count as "other law" exemptions in state freedom of information law, insofar as the laws may preempt state disclosure requirements under the Supremacy Clause of the U.S. Constitution.  But binding state officials to federal law by way of the information at issue, rather than an enumerated governmental power, would be a bridge too far.

At the same time, the Court recognized that some of the FBI records, based on their index descriptions, qualified for exemption from disclosure under the state PRL as justifiably confidential law enforcement records, for example, records related to an ongoing investigation, confidential sources, or emergency response strategies.  The Court ordered the withholding of those records and remanded the case to the Superior Court to analyze application of the state exemption to other records.

The case is Rahim v. District Attorney, No. SJC-12884 (Mass. Dec. 31, 2020) (Justia).  Justice David Lowy wrote the unanimous opinion.

Court: Irish officials must justify non-disclosure under FOIA exemption for commercial information

Ireland Supreme Court chamber (Michael Foley CC BY-NC-ND 4.0)

In two judgments in late September, the Supreme Court of Ireland ruled that Freedom of Information Act (FOIA) of 2014 exemption for confidential commercial information is not mandatory and that public entities relying on the exemption "must explain why the public interest does not justify release."

In both cases, public entities responding to record requests had been permitted to rely on the prima facie application of the exemption.  That approach fell short of the Irish FOIA's legislative command, the Supreme Court reasoned, because the record requesters were given no information with which to test the validity of the exemption.  The Supreme Court reversed and remanded.

Federal and state FOIAs in the United States also exempt from disclosure confidential information that private entities supply to government when disclosure would jeopardize the private entity's competitive position.  The exemptions operate also to shield public information from disclosure that would jeopardize the government's own competitive position as an actor in the private marketplace.

The U.S. FOIA does not, and state FOIAs typically do not, require that a public agency independently test confidential-information exemption against the public interest in disclosure, essentially second-guessing private owners' confidentiality designations.  To the contrary, legislative exemptions in some states are mandatory, and not, as U.S. FOIA exemptions are, committed to administrative discretion.  Current federal policy permits the disclosure of some statutorily exempt records, but the U.S. Department of Justice (DOJ) counsels agencies to engage in "full and deliberate" analysis of competing interests.  As to federal exemption 4, for confidential information, the DOJ has opined that such information "would not ordinarily be the subject of discretionary FOIA disclosure."

University College Cork, 2019 (Michael O'Sheil CC BY-SA 4.0)

However, unlike U.S. FOIA exemption 4 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4)), the Irish exemption for confidential information is limited by a "public interest override."  According to the Irish law, the exemption does not apply when according to the agency "head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."  Public interest overrides favoring disclosure are uncommon in U.S. access-to-information law, except in balancing analyses involving personnel records.

Journalist Gavin Sheridan, 2014 (Markus ›fin‹ Hametner CC BY 2.0)

Decided on September 25, 2020, both cases in Ireland involved journalistic investigations.  In Minister for Communications, Energy and Natural Resources v. Information Commissioner, [2020] IESC 57, journalist, FOI advocate, and founding CEO of Vizlegal, a legal information service provider, Gavin Sheridan (recent profile at The Attic) sought access to a state contract with service wholesaler E-Nasc Éireann Teoranta (eNet) to provide public access to fibre-optic-cable infrastructure.  In University College Cork v. Information Commissioner, [2020] IESC 58, news broadcaster RTÉ sought information about a €100m loan by the European Investment Bank to the National University of Ireland, Cork.  Both court opinions were authored by Justice Marie Baker, herself a U. Cork alumna, with four other justices concurring.

More details and further analysis of the cases are available from Andrew McKeown BL at Irish Legal News (Sept. 28, 2020), and from Bébhinn Bollard, Doug McMahon, and Brendan Slattery at McCann FitzGerald (Oct. 12, 2020).

Photo is 'copy,' court has to explain to city, police in state record access case under Arkansas FOIA

Professor Robert. E. Steinbuch at the University of Arkansas Little Rock reports a startling case under the Arkansas Freedom of Information Act (FOIA)—startling because a lawsuit never should have been necessary, much less an appeal.  Professor Steinbuch wrote in opinion in today's Arkansas Democrat-Gazette:

Attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA). The police refused to allow Motal to copy the report by taking a photograph using his cell phone. He sued.

In response, the city filed a motion to dismiss, arguing that a citizen must choose to either inspect, copy, or receive a government record—notwithstanding the metaphysical impossibility of this claim. How can you copy a record without at least somewhat inspecting it—with your eyes closed?

Then, the city argued that a photograph is not a "copy." Remarkably, the trial court judge, Mackie Pierce, agreed. He said that "if the Legislature wanted to give you the right to photograph public records, they could have easily used the word 'photograph.' They didn't. They used 'copy' and 'copying.'"

. . . .

Pierce also dismissed the case because the city relented after being sued, and it provided the records directly to Motal without any need to photograph or otherwise copy them. We see this type of legal manipulation all the time, wherein public entities comply with the law only after being sued and then seek to Jedi-mind-trick their way out of litigation by asserting in court that "there's nothing to see here—move along, move along."

The result too often is that only attorneys and those who can afford attorneys have rights, because they can sue. If you're a regular Joe, you don't have any rights, say the city and the trial judge, because they've orchestrated it that there's no precedent to protect you when the city repeats the same bad acts they did to Motal.

Reversing, the Arkansas Court of Appeals, per Judge Kenneth S. Hixson, ruled in favor of Motal.  Now the city claims it will appeal to the state Supreme Court.  Professor Steinbuch predicts the city will not succeed, despite a dubiously reasoned dissent by Judge Raymond R. Abramson, who would have ruled the case moot ("these are not the droids we're looking for") and parroted the city's argument.  Judge Hixson was an attorney in private practice before going on the bench.  Judge Abramson was a municipal police court judge and a city attorney.

Steinbuch is right in his reasoning and his prediction.  Shame on the LRPD and the City of Little Rock.  They seem to fundamentally misunderstand that a public record belongs to the public.  They are only its custodians.

The opinion piece is Robert E. Steinbuch, "Photo" Finish, Ark. Democrat-Gazette, May 22, 2020.  With University of Arkansas Professor John J. Watkins, Professor Steinbuch and I are co-authors of the treatise, The Arkansas Freedom of Information Act (6th ed. 2017) (excerpt of prior edition at SSRN), which Judge Hixson referenced.

The case is Motal v. City of Little Rock, No. CV-19-344, 2020 Ark. App. 308 (Ark. Ct. App. May 13, 2020), also available from Justia.

First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

• Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
• Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
• Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.

• Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
• In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
• Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
• Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
• King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
• United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
• VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
• Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were:

• Heather Goldman, Bryan Cave Leighton Paisner, Washington, D.C.,
• Rachel Matteo-Boehm, Bryan Cave Leighton Paisner, San Francisco,
• Christine Walz, Holland & Knight, New York, and
• Michael Grygiel, GreenbergTraurig, New York.

Trust in government requires access to information in time of crisis

The Governor of my home state, Rhode Island, limited the operation of state freedom of information laws among her executive orders early in the coronavirus crisis, I noted two weeks ago. She was not alone among governors in doing so.  Some limitations make sense.  Paper record access is complicated by closed offices, and open meetings by social distancing.  At the same time, care must be taken to ensure that access to government is not restricted excessively. For excess restriction, we pay a price in transparency and trust in government, and that price can compromise human health no less than the virus itself.

Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, writes eloquently and timely on the state of public access amid our pandemic emergency in the newly released volume 2, number 1, of The Journal of Civic Information. 

At a time when prompt access to accurate information could literally mean the difference between life and death, the laws mandating disclosure of information to the public are being relaxed in the name of government efficiency, while those mandating secrecy are being applied rigidly (and at times, inaccurately over-applied). This isn’t just a problem for journalists and researchers. As Harvard University health-law professor I. Glenn Cohen told The New York Times: “Public health depends a lot on public trust. If the public feels as though they are being misled or misinformed their willingness to make sacrifices – in this case social distancing – is reduced.” Perhaps the lasting legacy of the COVID-19 pandemic – and it will be a relief to speak of the pandemic in the past tense – will be a generational recommitment to restore custody of critical health-and-safety information to its rightful public owners.

The article is Frank LoMonte, Casualties of a Pandemic: Truth, Trust and Transparency, 2:1 J. Civic Info. iii (2020), and free for download with the latest edition of the journal.  Also included in the volume are research articles on public record officer perspectives on transparency, by Brett G. Johnson, University of Missouri, and on legislative conflict over the Washington State open records law, by Peggy Watt, Western Washington University, with an editor's note from David Cuillier, University of Arizona.

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.