52 Mass. App. Ct. 244 | Mass. App. Ct. | 2001
When, as here, a governmental entity subject to the public records statute, G. L. c. 66, § 10, reviews a request for documents and other records in its possession, it may not withhold disclosure unless a specific statutory exemption applies. See General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 805-806 (1999).
In the instant case, the Attorney General seeks to shield
On July 1, 1997, the plaintiff brought the instant action in the
The plaintiff appealed. While the appeal was pending, the Supreme Judicial Court decided General Elec. Co. v. Department of Envtl. Protection, 429 Mass. at 798, holding that materials privileged as work product under Mass.R.Civ.P. 26(b)(3) are not protected from disclosure under the public records statute unless those materials fall within the scope of an express statutory exemption. See id., at 801-806. As a result, on July 13, 1999, we permitted the parties to address issues raised by that case.
1. The factual background. In February, 1991, a number of Amesbury police officers registered complaints with the town manager, and later with the board of selectmen, alleging on-the-job misconduct of Sergeant David J. Connor, and cited several instances of Cronin’s unwillingness to impose effective disciplinary measures to curb Connor’s behavior. At the direction of the town selectman, the town manager sent a letter to the Attorney General’s office requesting a review of the allegations against Connor and Cronin. Two assistant attorneys general and a State police investigator worked on the referral for some time and reduced their findings to several memoranda. As we
2. Analysis. As we have stated, the basis for the judge’s conclusion that the contested materials are privileged as work product pursuant to Mass.R.Civ.P. 26(b)(3), 365 Mass. 772 (1974), was rejected in General Elec. Co. v. Department of Envtl. Protection, supra. We thus consider whether the three documents excluded as work product are protected by an express statutory exemption.
The Attorney General, citing Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62-63 (1976), argues that the three documents in question are “investigatory,” and as such, fall under exemption (f) of G. L. c. 4, § 7, Twenty-sixth. If not covered by that provision of the statute, the Attorney General argues that exemptions (a) or (c) apply to at least two of the documents. These exemptions protect from disclosure items that require protection under other statutes, see G. L. c. 4, § 7, Twenty-sixth (a),
In this case, the Attorney General no longer contemplates any criminal charges against Cronin. The supervisor found, and we agree, that the public interest in disclosing allegations of official misconduct at the conclusion of an investigation generally outweighs the privacy interests of participants in a cold investigation. See Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. 852, 858 (1995) (requiring a balancing test of the claimed invasion of privacy against the public interest in disclosure). See also Attorney General v. Collector of Lynn, 377 Mass. 151, 158 (1979) (“The public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner”); New Bedford Standard Times Publishing Co. v. Clerk of the Third Dist. Ct. of Bristol, 377
Next, we consider whether the investigatory materials exemption, c. 4, § 7, Twenty-sixth (/), should protect any of the requested reports. This exemption protects information when disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” G. L. c. 4, § 7, Twenty-sixth (f). There exists no blanket exemption for police records or investigation materials. See Reinstein v. Police Commr. of Boston, 378 Mass. 281, 289-290 (1979). A case-by-case review is required to determine whether the investigatory exemption applies. See ibid. As we have stated, the Cronin investigation has been resolved. Thus, we conclude that, subject to redaction, information gleaned from an interview Of any witness, if disclosed, would not have a chilling effect on witnesses’ testimony or jeopardize any related proceedings.
Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. See Reinstein, 378 Mass. at 290 n.18; Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. at 862-863 (explaining that the exemption for investigative materials may outlive the investigation). As we have observed, the Cronin investigation involved witnesses who were members of the Amesbury police department, some of whom may continue to be supervised by him. Disclosure of their identities may expose them to unjustified criticism or animus by their supervisors or colleagues and could lead to further discord within the department. See Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. at 862 (finding that the encouragement of individuals to come forward by affording confidentiality to their communications “is a principal objective of the investigatory exemption”). While some material may not immediately identify the witness, “[t]he inquiry as to what constitutes identifying information regarding an individual . . . must be considered not only from the viewpoint of the public,
Finally, we address the Attorney General’s invocation of an additional exemption, G. L. c. 4, § 7, Twenty-sixth (a), which allows a custodian to withhold information if some other statute so requires. Inasmuch as this matter is to be remanded to the Superior Court for consideration of appropriate redactions in accordance with the preceding discussion, it is appropriate also that the court consider what, if any, information constitutes criminal offender record information (CORI), and is thereby protected from release by G. L. c. 6, § 172. Cf. Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. at 856-857.
The judgment is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion. Specifically, the Superior Court, after making necessary redactions sufficient to protect informants’ and witnesses’ identities, including the redaction of information the disclosure of which may violate c. 6, § 172, shall order the Attorney General to release to Cronin’s attorney the remainder of his file. See Globe Newspaper Co., 419 Mass. at 856-857 n.6.
So ordered.
The underlying Superior Court action in which Cronin sued the town and several fellow officers has been settled; therefore, the plaintiff’s need for discovery is moot. We do not, however, consider the ultimate intentions of the person making the request. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). In Bougas, the Supreme Judicial Court noted, “[i]t appears that the [public records] statute does not provide a ‘standing’ requirement but extends the right to examine public records to ‘any person’ whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity.” Ibid. See also Cunningham v. Health Officer of Chelsea, 7 Mass. App. Ct. 861, 862 (statute requires no standing and provides no basis for discriminating among categories of persons seeking access to information pertaining to public records).
Under the statute, appeals may also be brought directly to the Superior Court or the Supreme Judicial Court. See G. L. c. 66, § 10(b).
The supervisor subsequently filed a complaint for declaratory relief challenging the Attorney General’s action, and represented that since 1995, the Attorney General has declined to comply with at least six disclosure orders. The Attorney General declined a request that the Attorney General appoint a Special Assistant Attorney General to represent the supervisor’s interests. The
Contrary to the plaintiff’s assertion, these redactions were proper, not because the material was irrelevant (despite that language having been used by the judge), but rather because it concerned an investigation entirely separate from the one at issue here. Thus, as the judge recognized in the “document index” appended to the final judgment, the plaintiff had never requested the information contained within those paragraphs.
An additional document was deemed protected by G. L. c. 4, § 7, Twenty-sixth (c). This ruling is not challenged on appeal.
The relevant statute here is G. L. c. 6, § 167, pertaining to criminal offender record information (CORI).