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SJC-13468
ERIC MACK vs. DISTRICT ATTORNEY FOR THE BRISTOL DISTRICT.
Suffolk. December 6, 2023. - April 26, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.
Public Records. District Attorney. Privacy. Police Officer. Statute, Construction. Practice, Civil, Summary judgment, Burden of proof. Attorney at Law, Work product. Words, "Misconduct."
Civil action commenced in the Superior Court Department on February 2, 2022.
The case was heard by James Budreau, J., on a motion for summary judgment.
The Supreme Judicial Court granted an application for direct appellate review.
Mary Lee, Assistant District Attorney, for the defendant. Howard Friedman for the plaintiff. Graham D. Welch for Lawyers for Civil Rights Boston & others. The following submitted briefs for amici curiae: Rebecca Jacobstein, Committee for Public Counsel Services, Mason A. Kortz, Jessica J. Lewis, & Daniel L. McFadden for Andrew Quemere & others. Nick J. Erickson, of Colorado, Brian S. Fraser, of New York, & David Milton for National Police Accountability Project. 2
Randall E. Ravitz, Special Assistant Attorney General, for Massachusetts Peace Officer Standards and Training Commission. David E. Sullivan, District Attorney, & Cynthia M. Von Flatern, Assistant District Attorney, for district attorney for the northwestern district.
GAZIANO, J. In this action, the plaintiff, Eric Mack, has
requested, pursuant to G. L. c. 66, § 10 (public records law),
certain records that relate to the fatal shooting of his
brother, Anthony Harden (decedent). A judge in the Superior
Court granted the plaintiff's motion for summary judgment,
mandating disclosure of the requested documents, absent a few
minor exceptions. Seeking to prevent the disclosure of these
records, the district attorney for the Bristol district
(district attorney's office) appealed from the judge's order and
asserts that each of the requested records is exempt from the
definition of "public records" under at least one of three
enumerated exemptions: the privacy exemption, the policy
deliberation exemption, and the investigatory exemption. See
G. L. c. 4, § 7, Twenty-sixth (c), (d), (f). The district
attorney's office further argues that, pursuant to G. L. c. 6E,
§§ 1 et seq., the Massachusetts Peace Officer Standards and
Training Commission (POST commission) has exclusive authority to
release officers' names. For the following reasons, we affirm
in part, reverse in part, and remand the case to the trial court 3
for a determination whether the investigatory exemption applies
to certain material.1
Background. We summarize the facts that are undisputed,
viewed in the light most favorable to the party against whom
summary judgment was entered -- here, the district attorney's
office. See HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326-
327 (2022).
1. The shooting. The following facts are taken primarily
from the final report of the district attorney's office on its
findings and conclusions regarding the officer-involved shooting
of the decedent (final DAO report), as well as from other
documents in the record.
On November 22, 2021, Officers Michael Sullivan and Chelsea
Campellone of the Fall River police department traveled to the
residence of a woman who had reported a domestic violence
incident.2 The woman reported to the officers that a man she was
1 We acknowledge the amicus briefs submitted by the district attorney for the northwestern district; National Police Accountability Project; Lawyers for Civil Rights Boston, Citizens for Juvenile Justice, National Lawyers Guild, New England First Amendment Coalition, and Strategies for Youth, Inc.; and Andrew Quemere, Committee for Public Counsel Services, and American Civil Liberties Union of Massachusetts, Inc. We also acknowledge the amicus letter submitted by the POST commission.
2 The officers were identified as "the male officer" and "the female officer" in the final DAO report, pursuant to a policy of the district attorney's office to refrain from 4
dating had choked her and struck her in the face with a stick
two days prior. After documenting her facial injuries, the
officers determined that there was probable cause to arrest the
man.
That man was the decedent. Having previously been charged
with domestic violence offenses and reckless endangerment of a
child, the decedent was confined to his residence by court order
at the time the woman reported the domestic violence incident.
The decedent resided with the plaintiff (his twin brother) and
his landlord.
A surveillance camera outside the decedent's residence
recorded Sullivan and Campellone arriving on the evening of
November 22. The officers spoke first with the decedent's
landlord, who permitted the officers to enter the residence and
directed them to the decedent's bedroom. Sullivan then went to
the decedent's bedroom and announced his presence to the
decedent from the doorway. After a brief exchange, the decedent
refused to step outside and speak with the officers. Sullivan
explained to the decedent that he was being placed under arrest.
The decedent reached for an item on his desk. Although
Sullivan was unable to see what the decedent grabbed, Campellone
publicly identifying officers involved in fatal shootings when no criminal charges are issued. The officers were named, however, in a search warrant affidavit and in the plaintiff's complaint. 5
believed the metallic and pointed item in his possession was a
knife. The decedent quickly approached Sullivan, holding the
item in his right hand, and tried repeatedly to stab Sullivan in
the neck and head with the item. As Sullivan and the decedent
struggled, Campellone fired two shots from her service weapon,
and the decedent fell over.
Sullivan promptly requested emergency medical personnel,
who arrived at the decedent's residence minutes later, along
with several additional Fall River police officers. A police
sergeant who arrived on the scene following the shooting found
Sullivan and Campellone with their weapons drawn, pointing
toward the decedent's bedroom. Sullivan told the sergeant,
"That guy just tried to kill me with a knife!"
On entering the decedent's bedroom, the sergeant observed
the decedent laying on his stomach just inside the doorway,
groaning and moving his hands. The sergeant requested that the
decedent stop moving his hands and attempted to place handcuffs
on him. The decedent resisted at first, but ultimately,
officers were able to handcuff him and began administering
medical aid.
As officers worked to clear the scene for emergency
personnel, one officer found a knife on the floor near the
decedent. That same officer then moved the knife onto a table 6
in the bedroom to ensure the safety of incoming emergency
personnel.
The decedent was treated for his gunshot wounds and
transported to a hospital. Within thirty minutes from the time
Sullivan and Campellone first approached him in his bedroom, the
decedent was pronounced dead.
The plaintiff raises several questions regarding the final
DAO report. Chief among them is whether the decedent did in
fact possess a knife when he allegedly attacked Sullivan.
Various officers alternatively reported not seeing a knife at
all, observing a black-handled steak knife on the decedent's
desk, finding a black-handled steak knife on the floor near the
decedent's feet, or discovering a knife underneath the decedent
after the decedent was rolled over to administer medical aid.3
2. Investigation of the shooting. In coordination with
the State police, the district attorney's office conducted a
five-month long investigation into the decedent's death pursuant
to G. L. c. 38, § 4, which mandates that, in "cases of unnatural
or suspicious death . . . [t]he district attorney or his law
enforcement representative shall direct and control the
3 After conducting a search of the residence, officers reported finding a total of three steak knives at various locations in the decedent's bedroom. 7
investigation of the death."4 The purpose of this investigation
was to determine whether the two responding officers were
criminally responsible for the decedent's death. Investigators
interviewed four percipient witnesses and approximately twenty
additional civilian and law enforcement witnesses.
The district attorney's office either acquired or created
the following records while investigating the decedent's death:
videotaped interviews of Fall River police officers and fire
department paramedics who were involved in the incident
(videotaped public employee interviews); Sullivan's personnel
records; the decedent's autopsy and medical records; crime scene
reports listing items recovered from the apartment and detailing
subsequent forensic testing; video footage from surveillance
cameras on a neighboring property that was recorded between
November 20 and November 22, 2021 (home security videos);
twenty-six crime scene photographs depicting the decedent's
residence, including his bedroom, bathroom, kitchen, and shared
living spaces (crime scene photographs); a brief typewritten
document titled "Room Summary," which was authored by an
assistant district attorney and consists of several bullet
points that recount the factual events leading to the decedent's
death (room summary); and a homicide report prepared by the
4 No independent internal affairs investigation of the Fall River police department was performed. 8
State police, which includes a nine-paragraph summary of the
events surrounding the decedent's shooting and appends summaries
of the videotaped public employee interviews (MSP homicide
report).5
While the investigation remained ongoing, the district
attorney's office prepared a preliminary report in December 2021
summarizing its findings and conclusions regarding the shooting
(preliminary DAO report).6 The preliminary DAO report includes
details on the decedent's background, a summary of the domestic
violence incident that prompted the officers' arrival at the
decedent's residence, a description of the events surrounding
5 The names of the officers being interviewed, among other information, are redacted from the interview summaries appended to the MSP homicide report. A draft of the MSP homicide report, discussed infra, was completed in November 2021. The district attorney's office released the final MSP homicide report online to the public in April 2022. The most significant difference between the final MSP homicide report and the draft MSP homicide report is the "approved" status indicated at the top of the document.
6 The preliminary DAO report mistakenly was referred to as the final report in an initial e-mail message to the plaintiff. On December 22, 2021, a staff member at the district attorney's office sent an e-mail message to the plaintiff indicating that a "final report" on the shooting was attached. However, this same staff member later submitted an affidavit in which he explained that he had incorrectly assumed that the report was final. In addition to the preliminary DAO report that was sent to the plaintiff and the final DAO report that was released to the public, the district attorney's office prepared an earlier draft preliminary DAO report, discussed infra, that was circulated within the district attorney's office and "subject to attorney review." 9
the shooting, an explanation of the Fall River police
department's policy on the use of force, and a conclusion that
there was "no basis" to find that Sullivan or Campellone had
committed a crime.
On completing its investigation, the district attorney's
office released the final DAO report to the public in April
2022. In addition to the information from the preliminary DAO
report detailed supra, the final DAO report includes
supplemental details on the decedent's domestic violence
offenses and child endangerment charges, as well as a summary of
the decedent's medical examination and autopsy report. The
final DAO report again concludes that there was "no basis" to
charge either of the two responding officers with a crime. The
district attorney's office also describes the Fall River police
department's use of force policy, which states that a "law
enforcement officer shall not use deadly force upon a person
unless de-escalation tactics have been attempted and failed or
are not feasible based on the totality of the circumstances."
The policy permits an officer to use deadly force if there is no
other reasonable alternative and the officer has an objectively
reasonable belief that deadly force is necessary to protect
herself or another. The district attorney's office found in its
report that Sullivan and Campellone did not violate the use of
force policy, reasoning that the officers had probable cause to 10
arrest the decedent and that it was reasonable to believe that
the decedent was attempting to use deadly force.
3. The public records request and responses. After
receiving a copy of the preliminary DAO report, the plaintiff
wrote to the district attorney's office on January 10, 2022,
requesting public records pursuant to G. L. c. 66, § 10 (b). In
his letter, the plaintiff requested (1) all documents relating
to any incidents that occurred between November 20 and November
22, 2021, involving Fall River police officers and the decedent;
(2) all audio recordings concerning the decedent between
November 20 and November 22, 2021; (3) all video recordings and
photographs that show the decedent or officers who interacted
with the decedent on November 22, 2021; and (4) all documents
relating to any investigations of incidents involving the
decedent that occurred between November 20 and November 22,
2021.
The district attorney's office responded in a letter dated
January 25, 2022, denying the plaintiff's request for public
records primarily because the investigation was ongoing. The
district attorney's office further explained its belief that
many of the records the plaintiff requested were exempt from the
definition of "public records" under the public records law and
thus would not be disclosed, even after the completion of the
investigation. 11
On April 1, 2022, the district attorney's office sent
another letter and the final DAO report to the plaintiff. This
letter included the website address of the district attorney's
office, where anyone could view the public records that the
district attorney's office identified as responsive to the
plaintiff's request. The district attorney's office explained
in its letter that certain records would not be disclosed to the
plaintiff. Relevant here, the district attorney's office
stated, "[a]ll recorded witness interviews and certain audio and
video recordings," some photographs, and the names of police
officers were being withheld under the privacy exemption. The
district attorney's office also indicated certain records were
being withheld under the investigatory exemption because their
production "would disclose investigatory techniques and
potentially hinder the effectiveness of future investigations."
Last, the district attorney's office claimed that records
constituting work product were being withheld under the policy
deliberation exemption.
4. The lawsuit. On February 2, 2022, the plaintiff
commenced an action in the Superior Court pursuant to G. L.
c. 66, § 10A, seeking injunctive and declaratory relief to
compel the disclosure of public records held by the district
attorney's office. In his complaint, the plaintiff sought the 12
same four types of records he had identified in his initial
public records request to the district attorney's office.
In September 2022, the plaintiff filed a motion for summary
judgment in which he requested an order from the Superior Court
compelling the district attorney's office to produce the
documents and information he had requested. The district
attorney's office filed both an opposition to the plaintiff's
motion and a cross motion for summary judgment, asserting that
it properly had withheld certain records and redacted certain
information that was not subject to disclosure under the public
records law. Specifically, the district attorney's office
maintained that the additional records the plaintiff sought were
exempt from disclosure under at least one -- and in some
instances, multiple -- of the following statutory exemptions
from the definition of "public records": (1) G. L. c. 4, § 7,
Twenty-sixth (c) (privacy exemption); (2) G. L. c. 4, § 7,
Twenty-sixth (d) (policy deliberation exemption); and (3) G. L.
c. 4, § 7, Twenty-sixth (f) (investigatory exemption).
The motion judge held a hearing in February 2023 at which
he reviewed several contested documents in camera. On March 10,
2023, the judge issued an order granting the plaintiff's motion
for summary judgment with minor exceptions and entered judgment
in favor of the plaintiff. 13
In April 2023, the district attorney's office appealed from
the judge's decision and the resulting judgment in favor of the
plaintiff. We then allowed an application for direct appellate
review submitted by the district attorney's office.
Discussion. On appeal, the district attorney's office
claims that the motion judge erred in granting the plaintiff's
motion for summary judgment because the requested records are
exempted from disclosure. The district attorney's office
asserts, as it did below, that the privacy exemption applies to
(1) the crime scene photographs; (2) the home security videos
(and still images taken from those video recordings); (3) the
names of police officers and other public employees, which were
redacted from the preliminary and final DAO reports; and (4) the
videotaped public employee interviews. Next, the district
attorney's office claims that the investigatory exemption
applies to (1) the videotaped public employee interviews; (2)
the home security videos; and (3) a list of interview questions
that a State police investigator asked the two responding
officers (investigator's interview questions). Finally, the
district attorney's office argues that the policy deliberation
exemption applies to (1) a draft of the MSP homicide report; (2)
a draft of the preliminary DAO report; and (3) the room summary.
We address each asserted exemption below. 14
1. Standard of review. We review a judge's decision on a
motion for summary judgment de novo. Matter of the Estate of
Jablonski, 492 Mass. 687, 690 (2023). "Summary judgment is
appropriate where there is no material issue of fact in dispute
and the moving party is entitled to judgment as a matter of law"
(citation omitted). Adams v. Schneider Elec. USA, 492 Mass.
271, 280 (2023). As summary judgment was entered against the
district attorney's office, we review the evidence in the light
most favorable to it. See HSBC Bank USA, N.A., 490 Mass. at
326-327.
2. Public records law. Two statutes govern public records
requests: G. L. c. 66, § 10 (a), which requires agencies, like
the district attorney's office, to provide access to public
records on request; and G. L. c. 4, § 7, Twenty-sixth, which
defines the scope of public records. See Rahim v. District
Attorney for the Suffolk Dist., 486 Mass. 544, 547 (2020). The
primary purpose of these statutes is to provide the public
"broad access to government records" and information on "whether
public servants are carrying out their duties in an efficient
and law-abiding manner" (citations omitted). Attorney Gen. v.
District Attorney for the Plymouth Dist., 484 Mass. 260, 262-263
(2020). 15
The Legislature broadly defined the term "public records."
See G. L. c. 4, § 7, Twenty-sixth.7 See also Boston Globe Media
Partners, LLC, v. Department of Pub. Health, 482 Mass. 427, 432
(2019). Paired with this broad definition is a statutory
presumption in favor of disclosure, with the burden placed on
the government agency to prove by a preponderance of the
evidence that a record may be withheld. See G. L. c. 66,
§ 10A (d) (1) (iv). See also Rahim, 486 Mass. at 549. The
Legislature has carved out various enumerated exemptions from
the definition of "public records," including the privacy
exemption, the policy deliberation exemption, and the
investigatory exemption. See G. L. c. 4, § 7, Twenty-sixth (c),
(d), (f). See also Attorney Gen., 484 Mass. at 263. These
7 Specifically, the term "public records" is defined, subject to certain exemptions, as:
"all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in [G. L. c. 32, § 1]."
G. L. c. 4, § 7, Twenty-sixth. 16
exemptions are "strictly and narrowly construed" (citation
omitted). Boston Globe Media Partners, LLC, supra. Whether an
exemption applies requires a case-by-case analysis. See Rahim,
supra.
a. Privacy exemption. The privacy exemption applies to
"personnel and medical files or information and any other
materials or data relating to a specifically named individual,
the disclosure of which may constitute an unwarranted invasion
of personal privacy." G. L. c. 4, § 7, Twenty-sixth (c). In
2020, the Legislature passed "An Act relative to justice, equity
and accountability in law enforcement in the Commonwealth."
St. 2020, c. 253. Among other provisions, this act amended the
privacy exemption of the public records law and established the
POST commission to increase transparency in law enforcement
investigations. See St. 2020, c. 253, §§ 2, 30. See also
Letter from the Governor to the Senate and House (Dec. 10,
2020), 2020 Senate Doc. No. 2975 ("This bill makes law
enforcement more accountable for their conduct and provides the
public with direct insight into officers' performance history[,]
which not only creates greater transparency in law enforcement
but also gives departments greater ability to hire or promote
only qualified applicants"). Specifically, the act created a
new carve-out within the privacy exemption for "records related
to a law enforcement misconduct investigation." G. L. c. 4, 17
§ 7, Twenty-sixth (c), as amended through St. 2020, c. 253, § 3.
That is, records that would otherwise fall within the privacy
exemption but are "related to a law enforcement misconduct
investigation" may not be withheld from disclosure under this
exemption.
On appeal, the district attorney's office argues it
properly withheld the crime scene photographs, the home security
videos, the still images, the names of officers and public
officials, and the videotaped public employee interviews under
the privacy exemption. The district attorney's office claims
that disclosing the crime scene photographs would violate the
decedent's privacy rights because they reveal the decedent's
"unclean bathroom" and "unkempt home" with "trash bags piled up"
as well as "a disturbing notation on the [decedent's] calendar."
The district attorney's office also contends that releasing the
home security videos and still images would create an
unwarranted invasion of privacy for private individuals who
voluntarily provided the video recordings to the district
attorney's office as part of its investigation.8 Moreover, the
district attorney's office asserts that the names of officers
and public officials should be withheld to protect their
8 The plaintiff's request for video footage is limited to video recordings that show either the decedent or the Fall River police department officers. 18
privacy. Last, the district attorney's office argues that
withholding the videotaped public employee interviews and
instead releasing reports summarizing their substance properly
balanced the public interest "in knowing about the conduct of
the public employees" with "the privacy interests and safety of
the individuals involved."
The motion judge balanced the decedent's privacy interest
in the requested records against the public interest in
disclosure and found that the "equities substantially favor[ed]"
disclosure. See Champa v. Weston Pub. Sch., 473 Mass. 86, 96
(2015) ("The inquiry under the privacy exemption requires that
the seriousness of any invasion of privacy be balanced against
the public right to know" [quotation and citation omitted]). We
need not review the judge's application of the balancing test
because all records identified by the district attorney's office
fall under the "law enforcement misconduct investigation" carve-
out to the privacy exemption. Thus, the privacy exemption
cannot be used to withhold these records from disclosure.
The district attorney's office argues that "[w]here the
shooting was deemed to be justified in this death investigation
under [G. L. c. 38, § 4], and no criminal prosecution ensued,
the records are not 'law enforcement misconduct' records at
all." Essentially, the district attorney's office asserts that
unless an investigation ends in a finding that a law enforcement 19
officer engaged in misconduct, the carve-out to the privacy
exemption does not apply.
This contention of the district attorney's office finds no
support in the language of the statute. General Laws c. 4, § 7,
Twenty-sixth (c), provides, in relevant part, that the privacy
exemption "shall not apply to records related to a law
enforcement misconduct investigation."9 In questions of
statutory interpretation, we begin with the plain language of
the statute. See Commonwealth v. Escobar, 490 Mass. 488, 493
(2022). The ordinary meaning of "misconduct" is "[a]
dereliction of duty; unlawful, dishonest, or improper behavior,
esp[ecially] by someone in a position of authority or trust."
Black's Law Dictionary 1195 (11th ed. 2019). As the district
attorney's office has acknowledged, the purpose of the
investigation in this case was to determine whether the two
responding officers committed any crimes or violated the Fall
River police department's use of force policy in relation to the
decedent's death. A police officer's commission of a crime in
the performance of his or her official duty is both "unlawful"
9 The phrase "related to" is construed broadly. See, e.g., Marsh v. Massachusetts Coastal R.R., 492 Mass. 641, 651 n.21 (2023), petition for cert. filed, U.S. Supreme Ct., No. 23-669 (Dec. 21, 2023); Machado v. System4 LLC, 471 Mass. 204, 206 (2015). 20
and a "dereliction of duty." An officer's use of excessive
force is likewise a dereliction of that officer's duty.
General Laws c. 4, § 7, Twenty-sixth (c), clearly and
unambiguously states that the privacy exemption does not apply
to an "investigation" of law enforcement misconduct. To require
the investigation to end with a finding of police misconduct
places the cart before the horse and runs counter to the goals
of police accountability and transparency. Thus, the
investigation into the shooting of the decedent in this case was
a "law enforcement misconduct investigation." Accordingly, the
crime scene photographs, the home security videos, the still
images, the names of officers and public officials, and the
videotaped public employee interviews each "relate[] to a law
enforcement misconduct investigation" and may not be withheld
under the privacy exemption.10
b. Investigatory exemption. Under G. L. c. 4, § 7,
Twenty-sixth (f), any "investigatory materials necessarily
compiled out of the public view by law enforcement or other
investigatory officials" are exempt from the definition of
"public records" if disclosing such materials "would probably so
10That the privacy exemption does not apply to the videotaped public employee interviews does not necessarily mean that the interviews must be disclosed. As discussed infra, this matter will be remanded for a determination whether the investigatory exemption applies to the videotaped public employee interviews. 21
prejudice the possibility of effective law enforcement that such
disclosure would not be in the public interest." This exemption
is "aimed at 'the avoidance of premature disclosure of the
Commonwealth's case prior to trial, the prevention of the
disclosure of confidential investigative techniques, procedures,
or sources of information, the encouragement of individual
citizens to come forward and speak freely with police concerning
matters under investigation, and the creation of initiative that
police officers might be completely candid in recording their
observations, hypotheses and interim conclusion.'" Reinstein v.
Police Comm'r of Boston, 378 Mass. 281, 289 (1979), quoting
Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).
This is not a blanket exemption that applies to any record
kept by a police department for an investigation. See Bougas,
371 Mass. at 65. Instead, we analyze whether this exemption
applies on a case-by-case basis. See Globe Newspaper Co. v.
Police Comm'r of Boston, 419 Mass. 852, 859 (1995). In doing
so, we ask whether a requested disclosure "would be so
prejudicial to effective law enforcement that it is in the
public interest to maintain secrecy." Id. Where an
investigation is closed, this fact alone "does not automatically
terminate the applicability" of the investigatory exemption.
Rahim, 486 Mass. at 552. 22
The district attorney's office argues that the
investigatory exemption applies to the videotaped public
employee interviews. It reasons that disclosing these video-
recorded interviews would chill prospective witnesses, both
private and public, from agreeing to video-recorded interviews
in the future.11 The district attorney's office also claims that
release of these interviews may reduce the likelihood that
officers are "completely candid" when questioned.
We previously have examined the application of the
investigatory exemption to the statements of law enforcement
officials. For example, in Globe Newspaper Co., 419 Mass. at
864-865, we held that statements of police officers compiled
during internal affairs and criminal investigations were not
subject to the investigatory exemption. Given the available
summaries of the internal affairs investigation, the evident
public purpose behind the investigation, and prior publicity of
these summaries, any harmful effect that disclosure might have
had was diminished. See id. Because of the previous publicity,
disclosing the officers' statements was unlikely to decrease the
likelihood that officers would be completely candid in recording
11In addition to potentially chilling future witnesses, the district attorney's office had claimed that the release of these videotapes "might also indirectly reveal" the identities of the two officers who were present at the shooting. However, as discussed supra, the names of these two officers were revealed in a trooper's affidavit and thus already known to the public. 23
their observations, especially where the possibility of public
disclosure was "surely apparent" to the officers at the time
they made these statements. See id.
In Rahim, 486 Mass. at 554-555, we held that the
investigatory exemption applied to certain records that a
district attorney acquired during an investigation into a fatal
shooting by law enforcement officials. The district attorney
identified one withheld document as a five-page statement signed
by a Federal agent "concerning actions taken and observations
made regarding the shooting," and which "include[d] a one page
annotated aerial photograph." Id. at 554. While "succinct,"
this description successfully demonstrated that the records
sought identified at least one law enforcement official,
described the official's "observations, hypotheses, and interim
conclusion," and included a photograph related to these
observations. Id., quoting Bougas, 371 Mass. at 62. We
remanded to the Superior Court for a determination whether the
investigatory exemption applied to other material that was
inadequately described and instructed the district attorney to
either provide a revised description with "enough details about
the nature and scope of the materials" or, where "fuller
descriptions" were not possible, to seek in camera review of the
material at issue. Rahim, supra at 555-556. 24
Here, the district attorney's office contends that
disclosure of the videotaped public employee interviews would
hamper investigation by discouraging witnesses -- both private
and public -- from agreeing to video-recorded interviews in the
future. However, the video recordings at issue do not depict
interviews of private citizens but rather the interviews of
seven Fall River police officers and two paramedics. Where we
previously have stated that the investigatory exemption is aimed
at "the encouragement of individual citizens to come forward and
speak freely with police" (emphasis added), Bougas, 371 Mass. at
62, we only have considered this factor for private individuals
-- not public officials performing duties in their official
capacity. See Rahim, 486 Mass. at 551; Globe Newspaper Co., 419
Mass. at 859; District Attorney for the Norfolk Dist. v.
Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney
for the Suffolk Dist., 408 Mass. 595, 603 (1990); Reinstein, 378
Mass. at 289.
Although the district attorney's office asserted this
exemption before the motion judge, the judge did not address
whether the investigatory exemption applied to these interviews.
Therefore, we remand to the Superior Court to address whether
the district attorney's office has met its burden to show that 25
the investigatory exemption applies.12 If the judge finds that
the investigatory exemption applies to any record on remand,
then the district attorney's office may withhold that record
even if another exemption does not apply. See Globe Newspaper
Co., 419 Mass. at 857.
c. Policy deliberation exemption. Under the policy
deliberation exemption, "inter-agency or intra-agency memoranda
or letters relating to policy positions being developed by [an]
agency" are exempt from the definition of "public records";
however, "reasonably completed factual studies or reports on
which the development of such policy positions has been or may
12The district attorney's office has also asserted that the investigatory exemption applies to the investigator's interview questions and to the home security videos. The motion judge did not address whether this exemption applies to the interview questions. Therefore, we also remand so that the judge may determine whether the district attorney's office met its burden to show the investigatory exemption applies to the investigator's interview questions. The judge did, however, consider whether the release of the home security videos would "interfere with future investigations." The district attorney's office claims that releasing the home security videos will discourage citizens from coming forward and volunteering information, harming future investigations. We are not convinced. As discussed supra, the home security videos depict public employees, not private citizens, performing their duties in public areas. We hold that the district attorney's office has failed to demonstrate how the disclosure of these video recordings "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See G. L. c. 4, § 7, Twenty-sixth (f). Therefore, the district attorney's office has not met its burden of showing that the investigatory exemption applies to the home security videos. 26
be based" are not exempt. G. L. c. 4, § 7, Twenty-sixth (d).
See Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449
Mass. 444, 457 (2007) (policy deliberation exemption applies to
"advisory opinions, recommendations and deliberations
compromising part of a process by which governmental decisions
and policies are formulated" [citation omitted]). This
exemption protects "open, frank intra-agency and intra-agency
deliberations regarding government decisions." DaRosa v. New
Bedford, 471 Mass. 446, 457 (2015). See General Elec. Co. v.
Department of Envtl. Protection, 429 Mass. 798, 807 (1999),
overruled in part by DaRosa, supra at 453 (purpose of policy
deliberation exemption "is to foster independent discussions
between those responsible for a governmental decision in order
to secure the quality of the decision").
In applying this exemption, the court utilizes the work
product doctrine and looks to Mass. R. Civ. P. 26, as amended,
474 Mass. 1401 (2016), for guidance. See DaRosa, 471 Mass. at
458. There are two forms of work product: opinion and fact.
Id. Opinion work product is material that contains "the mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
litigation." Id. at 459, quoting Mass. R. Civ. P. 26 (b) (3).
All other work product is considered fact work product. See
Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 128 (2021) 27
(Facebook). Absent a "highly persuasive showing" otherwise,
opinion work product is exempt from disclosure (citation
omitted). DaRosa, supra. Conversely, fact work product must be
disclosed "if it is a 'reasonably completed factual stud[y] or
report[] on which the development of [an agency's] policy
positions has been or may be based.'" Id., quoting G. L. c. 4,
§ 7, Twenty-sixth (d).13 Where a reasonably completed factual
study or report is intermingled with opinion, "a purely factual
section of the report might fall outside [the policy
deliberation exemption] but a discussion or analysis section
interwoven with facts would be protected from disclosure."
DaRosa, supra at 460.
Here, the district attorney's office identifies three
documents that it claims are work product to which the policy
deliberation exemption applies: (1) a draft of the MSP homicide
report, (2) a draft of the preliminary DAO report, and (3) the
room summary. The motion judge found that these three records
were fact-based documents to which the policy deliberation
exemption did not apply. We agree that the district attorney's
office has not proven that the policy deliberation exemption
13The policy deliberation exemption is a "time-limited protection" (citation omitted). DaRosa, 471 Mass. at 455. It "protects documents from disclosure only while policy is 'being developed,' that is, while the deliberative process is ongoing and incomplete" (quotation and citation omitted). Id. at 459 n.16. 28
applies to either the draft of the MSP homicide report or the
room summary. The draft of the MSP homicide report includes
only factual details of the decedent's death. Similarly, the
room summary, written by an assistant district attorney,
contains only facts relating to the layout of the decedent's
residence, a brief summary of the conversation between the
decedent and the officers prior to the shooting, and a
description of the altercation between the decedent and the
officers. As neither document contains any "mental impressions,
conclusions, opinions, or legal theories," these records are not
opinion work product. See DaRosa, 471 Mass. at 459. Further,
the district attorney's office has not met its burden of showing
that these documents are not reasonably completed factual
studies or reports.
The draft of the preliminary DAO report stands on somewhat
different footing. Like the other two records at issue, the
motion judge correctly noted that this draft report primarily is
comprised of factual detail. For example, the draft report
includes -- much like the preliminary DAO report and the final
DAO report, both of which were released to the public --
sections that detail the decedent's criminal background, the
initial domestic violence report to officers by the decedent's
girlfriend, and the shooting. Where sections of the draft
report are identical to the corresponding sections in either of 29
the publicly available reports, the district attorney's office
has effectively waived the work product privilege with respect
to these sections. See Facebook, 487 Mass. at 135 (party cannot
claim protection for opinion work product for information it has
released publicly).
However, the draft report is not completely identical.
Comparing the different iterations of the DAO report reveals
that certain sections of the draft report, labeled "Applicable
Laws" and "Conclusion," are different from the corresponding
sections in the publicly available reports. These sections also
contain discussions of the law and legal analysis addressing
whether the responding officers had committed any crime and
whether the shooting was justified. Because these sections
differ from their publicly available counterparts, they may
convey the "mental impressions, conclusions, opinions, or legal
theories" as to the criminal responsibility of the officers.
See Facebook, 487 Mass. at 127. Moreover, that the final DAO
report was voluntarily released to the public does not mean that
these sections of an earlier draft report are not protected work
product. See Gilhuly v. Johns-Manville Corp., 100 F.R.D. 752,
755 n.4 (D. Conn. 1983) ("Disclosure of a final draft does not
automatically waive the work product privilege of prior
drafts"). 30
Therefore, it was error for the judge to order disclosure
of the entire draft preliminary DAO report. While the district
attorney's office has not met its burden of showing that the
entire draft report is not a reasonably completed factual study
or report, see DaRosa, 471 Mass. at 460, the district attorney's
office has met its burden of showing that the policy
deliberation exemption applies to the "Applicable Laws" and
"Conclusion" sections of the draft report. These two sections
are severable from the purely factual sections of the draft
report. Therefore, the "Applicable Laws" and "Conclusion"
sections of the draft report may be redacted, and the remaining
factual sections of the report must be disclosed.
3. General Laws c. 6E. The district attorney's office
separately claims that the POST commission has exclusive
authority under G. L. c. 6E, §§ 1 et seq., to release publicly
the names of police officers in connection with any
investigations, thereby taking such information out of the
purview of the public records law.14 In support, the district
attorney's office points to the level of detail within G. L.
c. 6E, §§ 1 et seq., which it argues creates a clear implication
that the Legislature intended the POST commission to be the
14 The POST commission was created through the same act that added the carve-out for law enforcement misconduct investigations to the privacy exemption. See St. 2020, c. 253, § 30 (effective July 1, 2021). 31
exclusive avenue for members of the public to access law
enforcement officers' names.
We turn to the plain language of the statutory scheme at
issue, which established the creation of the POST commission.
See G. L. c. 6E, § 2. Among other provisions, the statutory
scheme grants the POST commission the authority to "establish
uniform policies and standards for the certification of all law
enforcement officers," G. L. c. 6E, § 4; "to investigate officer
misconduct," G. L. c. 6E, § 8; and to "promulgate rules and
regulations for the use of force by law enforcement officers,"
G. L. c. 6E, § 15. Notably absent from this statutory scheme is
any provision granting the POST commission exclusive authority
to determine whether to release the names of officers involved
in law enforcement misconduct investigations. "We do not read
into the statute a provision which the Legislature did not see
fit to put there, nor add words that the Legislature had the
option to, but chose not to include" (citation omitted).
Commonwealth v. Dones, 492 Mass. 291, 297 (2023). Based on the
plain language of the statute, the statutory construction
argument of the district attorney's office fails, and we need
not proceed any further. See Commonwealth v. Narvaez, 490 Mass.
807, 809 (2022) ("we follow the plain language when it is
unambiguous and when its application would not lead to an absurd 32
result, or contravene the Legislature's clear intent" [citation
omitted]).15
Conclusion. Because the "Applicable Laws" and "Conclusion"
sections of the draft preliminary DAO report are exempt from
disclosure, we reverse the motion judge's order with respect to
the mandated disclosure of these sections. We also reverse
insofar as the order requires disclosure of the videotaped
public employee interviews and the investigator's interview
questions, and we remand this case to the Superior Court for
further proceedings to determine whether the investigatory
exemption applies to the interviews or the investigator's
interview questions. In all other respects, the order and
judgment in favor of the plaintiff are affirmed.16
So ordered.
15Insofar as the district attorney's office claims that, because of the comprehensive nature of G. L. c. 6E, §§ 1 et seq., the public records law impliedly was repealed to the extent that it allows for the disclosure of officers' names, this argument also fails because we do not see an "irreconcilable conflict" between the two statutory schemes (citation omitted). See Concord v. Water Dep't of Littleton, 487 Mass. 56, 61 (2021).
16In his brief, the plaintiff has requested that we award him appellate attorney's fees and costs. We decline to do so. BUDD, C.J. (concurring). I agree that this matter should
be remanded to allow the judge to address whether the
investigatory exemption to the public records law applies to the
videotaped interviews of public employees, an issue the judge
did not address. See G. L. c. 66, § 10A (d) (1) (iv);
G. L. c. 4, § 7, Twenty-sixth (f).1 I write separately to note
that although the district attorney for the Bristol district
(district attorney's office) argues that records of police
interviews fall under the exemption because disclosure could
disincentivize officers from being candid, attending to this
concern is not in keeping with the letter or spirit of the
public records law.
The district attorney's office's argument stems from this
court's discussion of the investigatory exemption's possible
aims in Bougas v. Chief of Police of Lexington, 371 Mass. 59
(1976). In that case, the court concluded that the records the
plaintiffs sought were exempt from disclosure under the language
1 General Laws c. 4, § 7, Twenty-sixth (f), exempts from disclosure
"investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." 2
of G. L. c. 4, § 7, Twenty-sixth (f). Id. at 62.2 In discussing
the statute generally, the court also listed possible reasons
that the Legislature provided for an investigatory exemption:
"Included among the purposes in providing this exemption would be the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions" (emphasis added).
Id.
This court since has repeated the Bougas language when
discussing the investigatory exemption, including its reference
to officer candor, on several occasions. See, e.g., Rahim v.
District Attorney for the Suffolk Dist., 486 Mass. 544, 551,
554-555 (2020); Reinstein v. Police Comm'r of Boston, 378 Mass.
281, 289 (1979). However, in only two subsequent cases has this
court specifically addressed the argument. In Rahim, supra,
this court concluded, without elaboration, that a district
2The plaintiffs in that case sought police reports of an incident that allegedly involved police misconduct. Bougas, 371 Mass. at 60-61. Noting that the records contained "complete accounts of police investigatory efforts including the police officer's own observations of the incident in question, statements taken from witnesses, additional information obtained from other sources, some confidential, and leads and tips to be pursued," the court concluded that the requested reports fell under the investigatory exemption because they were "prepared by police officers in connection with their investigation of an incident which led to criminal proceedings." Id. at 62. 3
attorney's office's justification as to why one record could be
shielded under the investigatory exemption was "sufficient,"
where the record both displayed "the identity" of a Federal
Bureau of Investigation agent and contained that agent's
"observations, hypotheses, and interim conclusions" about the
incident. Id. at 554-555, citing Bougas, 371 Mass. at 62. In
the other case, Globe Newspaper Co. v. Police Comm'r of Boston,
419 Mass. 852, 864 (1995), the court directly considered the
effect that the disclosure of the police statements at issue
might have on officer candor, concluding that disclosure would
not "seriously threaten" it. Moreover, in Globe Newspaper Co.,
the court appeared to question the premise of the Bougas court's
concern by noting that other courts have concluded "with some
persuasiveness" that, rather than deter officer candor, "limited
disclosure of investigatory materials might promote candor."
Id. at 865 n.13.3
Presuming that disclosure would be detrimental to officer
candor provides police departments (and other agencies) with a
ready excuse to oppose the disclosure of information, which
3 In Globe Newspaper Co., 419 Mass. at 865 n.13, the court cited three Federal cases that emphatically rejected the argument that police records may be withheld due to the same concern regarding officer candor. See id., citing Kelly v. San Jose, 114 F.R.D. 653, 664-666 (N.D. Cal. 1987); Wong v. New York, 123 F.R.D. 481, 483 (S.D.N.Y. 1989); and King v. Conde, 121 F.R.D. 180, 193 (E.D.N.Y. 1988). 4
otherwise would be available to the public, based on a
speculative, intangible, and largely unverifiable concern. Cf.
Kelly v. San Jose, 114 F.R.D. 653, 664 (N.D. Cal. 1987) ("the
premise that . . . investigating officers will be less
forthright in expressing their opinions if there is a risk of
disclosure[] is empirically unsupported and very debatable").
As other decisions favorably cited by this court have
acknowledged, see Globe Newspaper Co., 419 Mass. at 865 n.13, if
anything, "the stronger working hypothesis is that fear of
disclosure is more likely to increase candor than to chill it,"
King v. Conde, 121 F.R.D. 180, 193 (E.D.N.Y. 1988).4
An approach that allows concerns for the effect that
disclosure might have on officer candor to drive disclosure
determinations cannot be squared with the public records
statute's "presumption" of disclosure, against which exemptions
must be "strictly and narrowly construed" (citations omitted).
Boston Globe Media Partners, LLC v. Department of Pub. Health,
482 Mass. 427, 432 (2019). It also conflicts with one of the
primary purposes of the public records law, i.e., empowering the
4 Notably, we are not aware of any case since Bougas was decided in which the Commonwealth demonstrated that concern for police candor was a viable reason to shield police testimony, including in the instant case. See G. L. c. 66, § 10A (d) (1) (iv) ("the burden shall be on the defendant agency or municipality to prove, by a preponderance of the evidence, that such record or portion of the record may be withheld in accordance with [S]tate or [F]ederal law"). 5
public to ensure that "public servants are carrying out their
duties in an efficient and law-abiding manner." Attorney Gen.
v. District Attorney for the Plymouth Dist., 484 Mass. 260, 262-
263 (2020), citing Attorney Gen. v. Collector of Lynn, 377 Mass.
151, 158 (1979). Transparency is especially critical in the
context of community members' interactions with law enforcement.
See District Attorney for the Plymouth Dist., supra at 263
(transparency is "an essential ingredient of public confidence
in government" [citation omitted]). See also St. 2020, c. 253,
§ 2 (amending public records law to clarify that "records
related to a law enforcement misconduct investigation" shall not
be exempt from disclosure under privacy exemption).
Accordingly, I am doubtful of the arguments to that effect
raised by the district attorney's office and wary of embracing
the idea, despite its appearance in some of our cases.