-: SJC-12690 Boston Globe Media Partners LLC
V Boston Police Department.
-: Miss Dewar, good morning.
-: Good morning, Bessie Dewar
for the Department of Criminal Justice Information Services
and the Masters at State Police.
The police departments in this case
and the Supervisor of Public Records
follow the CJIS's regulation interpreting the CORI law
to protect police reports with containing charge
or arrest related information and booking photographs
under the CORI law that they are therefore exempt
from disclosure under Public Records Law exemption A.
Superior court should have upheld this interpretation
of the CORI law for essentially
three categories of reasons.
First, it is consistent with the text
of the CORI law itself in numerous ways
and the legislator's evident intent
to protect arrest related information.
Second, it's consistent with this Court's long standing
understanding of how the CORI law operates.
And third, nothing in either the 2018 or 2010 amendments
to the CORI law disrupted this long standing understanding.
-: You're probably not surprised by this question
but the 2018 amendment, such information
shall be restricted to information recorded
in criminal proceedings
that are not dismissed before arraignment.
Doesn't that assume that
the criminal proceedings have commenced?
-: Respectfully, we do not read that provision in that way.
The legislative history behind that provision
is admittedly sparse but very clear in what we have,
which was that amendment was introduced to provide
additional protection where cases are dismissed prior
to arraignment.
In other words, the matter was so insufficiently serious
that it was dismissed or for whatever reasons
dismissed prior to arraignment and it furthers
the rehabilitative purposes of the CORI law,
as discussed extensively by this court
in both Pon and the recent show-cause hearings case
which both acknowledged the extreme prejudice
that can be caused by matters
that are resolved at an early stage
where a person does not have the right to say,
"Vindicate themselves in court and so forth".
So this provision was put in to ensure that the CORI law,
it's important to keep in mind,
the CORI definition does two things.
It has two different functions.
So the CORI law as created in 1972.
On the one hand, created a new statewide system
for sort of the management and supervision
of criminalist information and the regulation thereof
and specifically created a new statewide database.
And now pursuant to the 2010 amendments,
we have the 21st century version of that,
which is of course the iCORI database,
accessible by the internet.
And in that system, the CORI law is concerned
with protecting the integrity of that information
and as discussed in the Pon case,
funneling requesters to the iCORI regulated system
of accurate information.
On the other hand, the CORI definition,
so it's regulating system as a whole,
but at the definition also operates to protect information.
And the CORI definition provides that CORI information
is information in any form held by
any criminal justice agency regarding including
arrests and charges.
In other words, it's a very, very broad definition.
So we understand that sentence to essentially be
kind of a belt and suspenders protection
for these materials as this court may be aware,
that the court activity record information, the Carry,
which is maintained by probation,
my understanding is that
that the Carry doesn't even commence until arraignment
and so there shouldn't be pre-arraignment
information in the Carry and therefore,
in the iCORI database and this provision was,
as the legislator who introduced it said,
intended to ensure that these pre-arraignment matters
were not going to be disseminated pursuant
to the regulated iCORI access provided in Section 172.
-: I have a couple of questions.
The first is that there is also this statute
called the Public Records Act
and it doesn't seem to me that the CORI act
exists in splendid isolation.
We have to harmonize this with the Public Records Act
and with the strong prohibition against,
keeping things private and squirreled away
and we have to consider
the Public Records Act very narrowly.
The exemptions do it very narrowly
and I'm not hearing you do that.
-: Absolutely, Your Honor.
We absolutely agree that there's a strong presumption
in favor of disclosure of public records.
And what we have here with the CORI statute
is an instance where the legislature itself
has struck a balance.
The legislature, as discussed extensively by this court
in the Pon case struck a balance in the CORI law
trying to weigh on the one hand
the strong interest in public disclosure.
And of course, as this court knows,
the legislature actually increased access to CORI
in many ways, in the 2010 amendments.
And then on the other hand protecting information
for rehabilitative purposes,
acknowledged by this court as well.
And the particular balance that the legislature struck,
I think is particularly evident in chapter six,
Section 172(m), where the legislature expressly provided
that not with standing the rest of the CORI law,
police arrest logs, shall be public records.
In other words, the legislature expressly provided
that there would be an avenue
in addition to public court records themselves,
which of course are not subject to the CORI law
but in addition to the court records,
police departments shall maintain a public log
for people to get access to this information.
And I think it's interesting and extremely
it confirms the CJIS's and this court's
long standing understanding of the CORI law
that in 2018 when the legislature
added as part of the criminal justice reforms,
not only this new sentence to the CORI definition
but also new ceiling provisions
and this is in 276 100 H and 100 L.
And what these newly provided was that
you could get expungement of events not even rising
to the level of a conviction
and when you obtain such an expungement order,
probation, DCJIS and the court clerk are responsible
for contacting the relevant police department
and instructing the police department
to expunge its own arrest log.
-: I just wanna go back to the language of a statute
because I'm not sure how to get around the 2018 amendment
that says okay, here's what CORI is
but this information shall be restricted
to information recorded and criminal proceedings
that are not dismissed before arraignment.
-: I wanna just suggest that in reading
and understanding that sentence,
it's important to look at the sentence as a whole
and obviously, in context of the statute as a whole.
And what the sentence says is that
that such information shall be restricted
to information recorded in criminal proceedings
that are not dismissed before arraignment
and we would submit that when the statute uses the phrase
criminal proceedings, it's talking about
when criminal proceedings exist,
when criminal proceedings exist the CORI information
includes only those that are not dismissed
prior to arraignment.
In other words, there are criminal proceedings
that are not dismissed prior to arraignment
and with respect to those it all goes in the database
but if there's a criminal proceedings
and it continues past,
it actually is arraigned then it's included.
And I think understanding in that way is consistent
with what existed before in that sentence,
which was repealed and was removed at the same time,
which said that such information shall be restricted to
that recorded as the result of the initiation
of criminal proceedings.
-: How does this apply in the real world?
Because you'd have to be blind not to notice
that in some cases, the police released booking photographs
on notorious cases all the time and police reports.
And then here, there's a request by the Globe
now it's a CORI violation to release a booking photograph
that was released two days ago in a notorious case.
So isn't that inconsistent?
-: Respectfully, we think that it's not inconsistent
and Of course, we are here today
because we would like the court to set a single rule
that's applicable across all cases--
-: Will other police departments do that
and in a notorious case they're violating the CORI law?
Justice: And committing crime.
-: If I may sort of go through a couple of the relevant parts
of the statute that I think are really important here.
-: Is the AG gonna prosecute them?
-: There absolutely are remedies available
when CORI abuse occurs and there are at least four
that I'm aware of, chapter six, section 177
provides a private cause of action including
statutory damages, attorneys fees.
Section 1678 provides for criminal penalties
in certain cases.
The CJIS itself has a board,
the Criminal Record Review Board,
which is expressly established the purposes
of adjudicating CORI complaints.
The record appendix at I think pages 132 to 136
contains summaries of 10 different cases where the board
found a CORI violation between 2012 and 2016.
-: Of police departments?
-: Including, a number of police departments
that are expressly identified in the record appendix
at 132 to 136.
-: They've been punished in some way?
-: There's one case where they were fined, there were--
-: That's used in a police officer
who's looking up records outside the book,
so to speak, correct?
I think that that is true for at least some of them
and there's a case cited in our brief, the Roggio case,
R-O-G-G-I-O, we don't discuss it for this purpose,
but that was a private cause of action brought
by someone for damages because of sort
of extracurricular CORI searching and so forth.
and then further just a fourth,
I think that even chapter 260 a
could come into effect here if someone is wrongly
and unethically out of loyalty abusing their position,
Visa V. CORI.
So there are lots of avenues for abuse
but I wanna go back to not the situation of abuse
but what is the contemplated role of law enforcement
Visa V. CORI because as the Balan case from this court,
reaffirm the reasonableness of the CJIS regulation
on this score, which says that law enforcement
and this is quoting the 172 as it exists now,
in its exact terms,
law enforcement can use CORI in the actual performance
of their criminal justice duties
is the phrasing of the statute.
Of course when a prosecutor stands up in court,
when a police is interviewing a witness,
when a police is talking to a victim of a crime,
they may need to use and talk about CORI.
And it's inescapable and it's part of the tension
of the CORI law, right?
The CORI law provides a degree
of practical obscurity to people
but it doesn't mean that our whole
criminal justice system is secret.
-: All our town newspapers would say
this person was just arrested for drunk driving
for the fifth time and here's the photograph.
We get that all the time.
Is that a violation of CORI?
-: Well, the question is here,
what has the legislature provided?
Should that be CORI or not?
Should the police departments be able to,
in this case Of course, these are not requests--
Justice Lenk: Answer the question, yes or no, please.
Justice Gants: Yeah, please.
-: Is it a violation of CORI what he said?
-: Is it a violation of CORI for the police to do
what they routinely do,
which is to release the police report
and then have a photograph of the individual,
so it's on the local newspaper
that this individual was arrested
and here's what the police report says and here's the photo.
-: The answer is no,
if it's contemporaneous to the investigation and prosecution
pursuant to DCJIS regulation at 803 CMR--
-: Not to do it inconsistently.
It's not a CORI violation to do it
when it's a private individual but it's a CORI violation
to do when it's a police officer's?
Is that the way it's working?
-: The relevant distinction is the timing.
The relevant is distinction is that the CORI law protects
against requests for compilations of historical information
about individuals.
If the Globe can request booking photographs,
pursuant to this Court's decision,
the Globe can request all the booking photographs
going back in all of time and for everyone.
-: But the Globe hasn't made that request.
I mean, the request here as I understand it,
is they are looking for police reports
and photographs of officers who are charged
or arrested for OUI.
That's at least one part of it, correct?
-: For the mass state police, it's two particular officers.
For the BPD, it's actually all officers from 2012 to 2016.
-: Who were charged with OUI?
-: Who are charged with OUI.
-: Okay, you're not asking for the criminal histories
of these individuals, they're asking only for whether
they were charged with this particular crime.
-: They are asking for the police reports.
-: Okay and well, let's stop there.
Are those police reports filed with the complaint?
-: That may depend on the matter,
and that's an important distinction here and it goes to--
-: I understand because if they are filed with the complaint
pursuant to Globe newspaper versus DA for Middle District,
aren't they as public as the information in the court files.
-: Court files are public.
The distinction between the Middle District case
and this case is really important.
In the Middle District case that what was in
before the court was docket numbers,
which inherently are copies of a court record.
These records here are compilations of police departments
and they are not necessarily part of a court record
if the case is sealed, if the case was never--
-: Let's go back to the question here.
Have you checked with regard to these requests
as to how many of these police reports
were in fact filed in court and are not sealed in?
Aren't those discoverable under Globe newspaper
versus DA from Middle District?
-: In my case, there are only three
particular people involved and I have not gone to see
if there is a public court record regarding them.
I do not believe that there are,
otherwise the Globe wouldn't have
sought these records from us.
-: Well, they will do the docket number
in order to be able to find the case.
-: If there is no docket number, that was my point.
-: The question I guess is I mean, well, let's step back
juveniles are not within the scope of CORI, correct?
Juvenile records unless it's an adult.
-: That is the final sentence, yes.
-: So is it your view that juvenile records
have no protection under CORI
and therefore would be discoverable,
not discoverable would be public records
and would not be protected by CORI?
-: Absolutely not, Your Honor,
which is why that's exactly consistent with our reading
of the new second sentence of the CORI definition.
These exclusions from the CORI definition
are precisely to protect that information
that it not be in the database.
-: Okay but you're saying that this is protected
because it is with CORI and then you're saying,
well, juvenile records are protected,
because they're not with CORI.
So if they're not within CORI
and you're arguing the CORI protects them
how are juvenile records protected under CORI?
-: We think that juvenile records are
and we have argued are protected under CORI
by necessary implication of the statute.
Which is to say that the clear intent of the legislature
was to protect juveniles, was to protect cases dismissed
prior to arraignment, was to, in the final sentence,
protect cases where it's not punishable by incarceration.
We have to read the statute as a whole.
Section 167 expressly says at the beginning
in the preface to the definitions,
that these terms shall have the following meanings
unless contexts dictates otherwise
and we think this is the most harmonious reading
of the statute as a whole.
-: But isn't that the problem with your argument?
The purpose of CORI, as it has been understood,
at least by the court system
and working on our public portal,
is that we will not permit somebody to do an end run
around CORI by finding a different way
to get someone's full criminal history.
Dewar: Agreed.
-: It does not protect individuals
from being able to identify particular criminal acts
by going in and finding out what happened
with regard to a particular incident.
-: Respectfully, the CORI definition protects
CORI information in any form
and going back to your--
-: But therefore, it doesn't protect juveniles
because juveniles are not within CORI.
So you have this problem is that you're contending
that this is protected by CORI
and then when there's information,
which is not protected by CORI, such as juveniles
and individuals who's had their cases
dismissed before arraignment,
you're saying, oh, they're protected by CORI too.
But the only thing that's consistent is that
the legislature wanted to say we don't want this part.
We don't want cases that are dismissed before arraignment
to be part of an individual's criminal history
and therefore, when you ask for John Smith
and John Smith had a prior arrest,
which was dismissed before arraignment, you won't find that
when you get John Smith's criminal history.
-: That's absolutely the way that it should and does work.
And the problem in this case is that what the Globe
is seeking to do is itself create an end run
and of course, the Public Records Law--
-: How are they seeking the end run?
-: The Public Records Law does not discriminate
among requesters, right?
And the CORI law does not discriminate
among subjects of CORI.
So if the court in this case were to rule
that the Globe on the one hand
for clearly public interested reasons,
can get this information about these police officers
that also means that database companies discussed
by this court in Pon can likewise request
every booking photograph from every police department
of every individual booked.
As highlighted by the Newspaper Publishers,
Amicus brief, states have taken different policy
approaches here and some states do not keep booking
photographs private as does the federal government.
So the question here is what is the balance
that the legislature has struck?
And we submit that based on the CORI definition,
which protects this information in any form
and in which this court has long understood
that to be the case.
The Ryan's team case from 1979 under substantially
the identical CORI definition was all about
whether police reports were CORI protected
and the court said that they were and so far as
they kept contained CORI information.
That was from 1979, nothing the legislature has done
since then has disturbed that understanding of the law.
I realize my time has long gone.
-: I understand, so do you agree
that is a legitimate matter of public interest
as to whether the police are appropriately handling
individuals who are police officers
who've been convicted of OUIs
when they're responsible for arresting individuals
for that crime?
-: Of course.
-: Okay, so how are they supposed to find this out?
If you're gonna be blocking them from learning
what has happened, they don't even know which officers
have had OUIs, how are they gonna be able to evaluate
whether or not the police are acting appropriately
with regard to individuals who have been accused
and charged with crimes?
-: There are a host of different ways of discovering that.
Justice Gants: Like what?
-: A good example is highlighted by the courts recent case
the whole show-cause and the decision publish in September
in which the court pointed out
that under trial court rule 14,
even though denied applications for criminal complaints
are typically not public and are kept segregable.
Under the trial court rule 14
and the trial courts internal practice rules.
A party like the Globe who has a public interest
in disclosure of materials can seek access those materials.
And of course, a denied application for criminal complaint
would include the police report,
usually the police report,
one would assume, booking photographs and so forth.
And that's what's alleged to have occurred
with the judge incident.
-: I know that language, I wrote it
but tell me how it helps you
because that says that it is a matter of public interest
when public officials are being accused of crimes
and therefore, the release of it for an otherwise
confidential proceeding is at its apex.
Dewar: Absolutely.
-: You still haven't told me how if there is a concern,
or at least a desire to inquire as to
how the police are handling individuals
who have themselves been charged with crime,
how is that to be done?
-: Well, I don't wanna repeat myself
but as the court held in the show-cause hearing case
trial court rule 14 provides a really excellent mechanism
for this in the sense that it expressly disclosure or not,
is based on the public interest
and so an ordinary person who's just an ordinary person,
there wouldn't be a lot of public interest
in obtaining a denied criminal complaint
with respect to them.
But a public official, there could be a lot
of public interest in that information.
-: But there could be a public interest,
say, suppose we wanted to look back in time
and say, let's look back and we ask the police department
in New Bedford, give us the last 10 convicted people
who've been convicted all over, the cases are all over
and give us the complete report in the complaint
so we can follow how they've been doing in their life.
-: Well, clearly, under the court records exception,
a whole bunch of that material would be public.
-: Will the booking photo be public?
-: Anything that's in the court record is public
and available to the public
but with respect to police departments,
compilations of police incident reports
the legislature has clearly established
that the mechanism and this is another way
of shining light on what is exactly occurring
and so forth is the police arrest log.
And that is established by the legislature
as a place to find this information.
I would also note that the legislature is clearly
isn't concerned about this arrest information
and in the 2018 criminal forums established
a whole new requirement that the CJIS
and this is in 172, excuse me,
I'm not getting the citation immediately
but, oh yes, 167(a), sub(i) requires newly
that the CJIS collect a lot of arrest data,
including the race and gender and age of arrestees
and so forth and publish it on a anonymized basis.
So the legislators clearly very concerned about
that arrest of data be available in some forms
but they just wanna keep it protected
for ordinary people who are trying to go out their lives
and not have websites extorting them,
try to sort of pay money to take down your mug shot
from online.
You type in the person's name
and the first thing that comes up is,
a mug shot from an incident
that wasn't even ever prosecuted,
which is incredibly prejudicial
as this Court recognized in the show-cause hearing case.
-: So you're saying that if, in fact,
the mug shot had been part of the court record,
then the Globe could get that information?
-: The Globe would get that information from the court.
-: But they could not get it from the police department
as the case was over?
-: Correct.
-: But I still don't understand how they're supposed to know
how many police officers say, in state police
had been arrested for OUI.
How are you supposed to know that?
-: I think one could submit a public records request
to a police department that wasn't requesting
the police incident reports or the booking photographs
for that information.
-: How are they supposed to find out what actually occurred
and be able to evaluate whether or not
they receive special treatment?
-: You could use trial court rule 14,
you could look at the arrest logs.
The two incidents that--
-: Both of the arrest logs,
I have to go through every the arrest logs for every day
and then I'd then compare that
to the names of every state police officer.
-: I mean, my understanding is that
that the press does closely follow arrest logs.
They literally publish them and the cases here regarding--
-: I mean, yes, they could in theory go
to every all 99 courthouses
and check every single individual
but of course the question, I guess is,
again, we're not speaking about give us every arrest
record for all persons, they're asking only with regard to
police officers or state troopers
who have been arrested or charged with OUI
and trying to find out
whether they were treated differently.
-: Well, the problem is that the CORI law does not contain
a general public interest exception
or a public official exception.
Even public officials have CORI protections.
Now there there could be ways around that,
for example, through trial court route 14,
getting these information from the courts and so forth
but the superior court declaratory judgment below,
which did he only to public officials
and police officers has no basis in the actual statute.
The legislature has obviously a lot of concern
about balancing the clear public interest and disclosure
and the rehabilitative interests.
And the balance that they struck is,
with respect to police incident reports
that concern arrest or charge and booking photographs
that those are protected by the CORI law.
-: All right, thank you.
-: Thank you.
-: Mr. Lederman.
-: Good morning, may I please the court.
My name is Jason Lederman and I am here as Assistant
Corporation Counsel for the city of Boston
representing the Boston Police Department.
Boston Police Department is asking for this court
to reverse lower court's ruling and find the CJIS regulation
as a reasonable interpretation of the statute
and therefore do due deference.
The Boston Police Department is adopting
the Attorney General, the CJIS
and mastery state police position essentially
that the core protections do go into effect
at the time of arrest.
Additionally, I'd like to draw the court's attention
and highlight essentially the difference in the requests
that the Globe made to the Massachusetts State Police
and the Boston Police Department in this case.
As a court noted previously when my sister was speaking,
the request to the Massachusetts State Police
was for three specific incidents
that they were aware of at that time.
They were granted not explicitly contemporaneous
with the original incident.
However, the request the Boston Police Department
was for two and a half years or a little bit more than two
and a half years of incidents from January of 2012
to October 21st of 2014.
Certainly--
-: I'm sorry but limited only to Boston Police officers
who were themselves arrested for a OUI.
Lederman: Yes, Your Honor.
-: Not asking for every arrest the BPD did.
-: That's correct, Your Honor
but the Boston Police Department's position
and I believe that the AG's position would also be
that essentially the CORI applies or it doesn't apply.
In this situation, there is no carve out in the statute
for police officers.
-: Does BPD release working photographs routinely?
-: My understanding is they do not release
booking photos routinely.
In fact, the lower court found in its order
that the Boston Police Department releases
only contemporaneous information with arrest
and additionally, that historical information
which certainly would not be contemporaneous
is released only with non-identifying information
which should be consistent with how they respond
with the Globe's request in this case.
-: So there's a notorious murder,
does the BPD release the police report
in the booking photograph to tell the newspapers?
-: My understanding, Your Honor,
is that BPD may release in the police logs,
certainly contemporaneous with arrest the information
that is required to release in those logs.
Additionally, there may be a release regarding
not sure that this is contained directly within the record,
certainly but there may be a release
of information that is contemporaneous with the arrest
but that would be supported by both the CJIS regulations
found in 7.10 of the CMRs as well as the Belen case
which this Court has opined regarding.
-: The distinction you're drawing that we're asking about
between the search for booking photographs
and police reports, will be this contemporaneous
with the rest arrest exception?
-: Yes, Your Honor.
-: And have you checked to see whether
any of these police reports were in fact
filed with the court as part of the complaint?
-: Your Honor, I did not check.
If matters are publicly available
and in the files of the police department
of the Globe newspaper versus DA,
are they not public records?
-: Your Honor, there are records
that are contained within the court records.
Certainly, given the holding in that case,
those would be public records from the court.
-: Okay.
If you said, okay, we'll give you the docket number
and you can find that?
-: Your Honor I don't believe that the alternative was
that we would provide a document.
I can tell the court is
that the Boston Police Department did respond
and in fact provided the police reports
without identifying information.
So the information was given to the Globe.
-: But how was the Globe gonna use that
to determine whether or not these individuals
were appropriately disciplined or treated appropriately?
-: Certainly, Your Honor, I understand
that there's a public interest
that the press received this information
but the legislature has expressed a clear public interest
in collateral consequences not being held
against certain individuals.
There is no exception in that statute
and the CORI statute for collateral consequences
that may affect police officers.
-: Those individuals records are publicly available
if they were to know who they were.
They could just go to court
and find out what happened to their case.
-: Yes, Your Honor.
-: So your view is that that the CORI law protects
not only the aggregation of criminal histories
but it protects all information regarding an individual
regarding a particular case.
-: Your Honor, we would argue that in this case,
this is in fact an aggregation of criminal history.
There was a historical request for two
and a half years worth of information.
That is not a simple contemporaneous exception
found in the CJIS regulations, that is a request for two
and a half years of past information
regarding alleged criminal conduct.
-: Well with regard to individual police officer,
it would only be a criminal history if
that particular police officer has a criminal history
while working for the BPD.
-: Yes, Your Honor, that is correct.
-: Is that not a matter of public interest
if that's the case?
-: Your Honor, we're not arguing if this isn't a matter
of public interest, we do believe that--
-: I mean but essentially,
the interpretation that you're giving to CORI,
which is that the legislature intended to frustrate
and prevent this type of inquiry
even though the Public Records Law was meant
to be expansively interpreted.
-: That's correct, Your Honor.
Except that there is the exception in A
which deals with any statute that deals with unnecessary
or impliedly restricting access.
And in this case, Your Honor, given the expansive analysis
this court has done in both Pon,
as well as the most recent case, show-cause hearing case,
certainly there there is an understanding
that collateral consequences regardless of what
you're employed as are very real
and will prevent people--
-: CORI is not the only statute we have.
CORI and the concerns behind CORI
rehabilitation and prospect of bulk purchases
is not the only public policy concern we have.
We have to read CORI and knit into the Public Records Law
and the recognition that open government is important
and isn't that a fair prism to interpret
these provisions saying, well, CORI says x, CORI says y?
-: Your Honor, I certainly understand the court's question.
I would argue, Your Honor, that there are exemptions
under the Public Records Law that deal with something
that the court is concerned about,
those will be the privacy exemption
and many other exemptions
that are specifically enumerated by the legislature
in the Public Records Law.
However, the statutory exemption in A is very clear
that if is withheld under CORI or withheld or any statute
that protects this information,
it is withheld, it is not to be disclosed.
That is a different analysis than I believe Amici
did in the ACLU brief specifically,
conflating essentially the privacy exemption
with the statutory exemption.
There are different exemptions and BPD's position would be
that if something withholds the information
under the statutory exemption there is no discretion
in that case and it needs to be withheld,
unless the CJIS promulgates a regulation
that gives discretion in that case.
-: And have you invoked the privacy exemption
or the exemption for investigative information?
-: Generally, Your Honor, yes, we have.
-: In this case?
-: In this case, Your Honor, I do not believe that it was--
-: This case rises and falls on your CORI interpretation?
-: Yes, Your Honor.
-: All right.
Thank you. -: Thank you, Your Honor.
-: Mr. Albano.
-: Good morning, may I please the court.
John Albano.
I believe analytically the starting point here
should be that the records at issue
are made or received by a public employee.
So they do meet the definition of a public record
under chapter four, section seven.
Which means that there is a presumption
that the records are public
and which means the custodian bears the burden of proving
the applicability of any exemption.
Here we say the Superior Court was correct
in making essentially two related rulings.
First, that CORI does not prohibit
on the pain of criminal prosecution.
The disclosure of booking photographs
or police reports regarding public officials.
And second, as the Superior Court also make clear,
that ruling does not mean that every booking photo
and every police report is immediately available
upon demand because as the Superior Court said,
there may be depending upon the facts of the case
an applicable privacy exemption,
there may be an applicable investigatory exemption
or there may be another statute
that applies the prohibits disclosure
but it is the CORI statute that prohibits disclosure here.
-: How about for the ordinary person?
It's very tempting to say that the statute means one thing
when you're talking about police misconduct, allegedly
and how its dealt with.
How about the ordinary citizen,
one that just got into a bit of trouble
and we really wanna protect this person?
How do we do that?
-: The answer is that the privacy exemption
should be analyzed in that instance,
and there are other statutes that may apply, Your Honor
but it's not CORI.
So for example, a case I didn't cite, I should have
I think one of the Amicus cited the Sixth Circuit case,
Detroit Free Press, which gets sold as
Oh, this is a bad case for public disclosure,
booking photographs.
That case is actually very consistent with
Judge Wilkins ruling because what the court said was,
we no longer will adhere to the view
that there is zero privacy interest in a booking photograph.
We're abandoning that view, the Sixth Circuit said
and they acknowledge states
come to different conclusions on this.
But in a case involving,
that case did involve police officers,
we're going to remand it for a balancing under
the federal investigatory exemption,
which includes a privacy component.
So here what Judge Wilkins said was,
obviously, the privacy equation is different
in a private individual than with a public official.
And I wanna be clear, I'm not suggesting
that there are no circumstances in which
a booking photograph of a private person
should be made public.
I am saying that that would be a fact
intensive determination based on the request
in the situation and not at all, a function of the CORI Act.
The Superior Court correctly looked at the statute
and said at the time the court made the ruling
that in order to be CORI, it has to be recorded
as the result of the initiation of criminal proceedings.
And he correctly ruled that if criminal proceedings
have not been initiated, it can't fit
the definition of CORI.
After the amendments, I would suggest
that outcome is even more clear,
because now, the definition reads
that it's restricted to information recorded
in criminal proceedings that are not dismissed
before arraignment.
-: Mr. Albano, what do you make of the legislative history
that they reference?
-: Pardon me.
-: That legislative history, what do you make of
that legislative history saying it really
does not go your way?
-: I've respectfully disagree.
-: Well, could you tell me about the legislative history?
-: Let's leave aside the play meaning of the statute
which Judge Wilkins relied on.
I think the legislative history demonstrates
that after the amendments to CORI,
the prohibitions on public access are limited
to requests for the information
from the department's database.
And if I may, let me explain why,
before those amendments, old section 172 used to say,
just give me a second to find it here, it used to say,
except as otherwise provided criminal offender
record information shall be disseminated,
whether directly or through any intermediary
only to criminal justice agencies,
certain other authorized persons and entities
and if the CORI board at the time said,
okay, you can have it.
Prior to the amendment, the CORI Act also
prohibited the disclosure of alphabetical arrestee,
indexes and alphabetical criminal defended indexes.
Those were all swept away when the statute was amended.
So now I just suggest as a matter of statutory analysis,
we have to look at the statute and say,
okay, we've got a definition of CORI,
whatever that definition may be.
I'll take any definition one comes up with today.
We still have to look elsewhere in the statute to say,
okay, where does it say, thou shalt not disclose
this particular criminal offender record information?
And when you look at the current 172,
it is limited to request to the department
and it lists 25 persons and entities
that can get access by requesting the department.
Now let's look at the at the surrounding
sections of the statute.
So if you look at 172(b), 172(c) and 172(e) to 172(l),
all of those sections, all of them,
have the language notwithstanding section 172.
We're gonna let someone else
have access to the CORI through the department.
That's the way the statute works now.
171(a) makes it clear that CORI can be obtained
from other sources because it expressly provides a rule
on when the holder of CORI has to provide it to the subject
and says that rule applies whether you obtain the CORI
from the department or any other source.
-: Can I ask you?
We had some questions for your sister about whether or not
it was a CORI violation for the police departments
to be giving out booking photos and so forth
of individuals who are just sort of ordinary citizens.
What is your position on that?
Is that a CORI violation?
-: Well, of course, I say it's not a CORI violation
because I'd say CORI does not prohibit
the disclosure of any of this information.
As I understand the--
-: It's a Public Records Act violation
or it's not an exemption as a Public Records Act?
-: Right.
It would not be a violation of CORI to disclose
those records at any time.
-: If the Boston Globe stands in the same position
as any other individual.
So if I am a landlord in Boston
and somebody comes to me to seek to rent an apartment
and I want more information
than I could get from the CJIS,
can I make a request for this particular potential tenant
to the BPD and say, give me all information
regarding this particular tenant
that's in your possession?
-: One could make that request whether it was granted
or denied should not turn on the criminal offender
record information act, because that act, which by the way,
imposes criminal penalties, simply does not prohibit
the disclosure of that information.
-: Isn't there the same risk of the end run around CORI
that we would be concerned about in terms of by implication,
there are certainly limits on what that landlord could get
if the landlord went to the CJIS, correct?
-: Yes.
-: But if the landlord went to the Boston Police Department,
he or she could get far more, could they not?
-: Well, what let's think about what it is they could get
from the Boston Police Department.
If they had a name and they asked for a booking photo.
They had a name and they asked for a police report
the Boston Police Department is perfectly capable of saying
that's exempt under exemption C,
under the privacy exemption.
If the investigation was ongoing,
they could invoke exemption F.
I am here to say they should not be invoking the CORI act
because one, I cannot find in that statute,
as it currently exists,
the clause that says
police departments, thou shalt not release police reports
or booking photos.
I say it's not in there.
Can I go a little bit further?
I think the best argument that the Commonwealth has
for whether there is such restrictive language in CORI
is in section 178, which is the section
that imposes criminal penalties,
so I call that to your attention.
With the looks at 178, it doesn't get you there.
-: But the public records speaks not only about specifically
exempt from disclosure by statute
or also by necessary implication.
And I mean, we in the court system struggled with this
in determining what's gonna be available
on our public portal
that we were concerned that if he could do it by name,
you could identify John Smith
and identify all of the cases that John Smith had
and that may give you far more than you could get
if you did a CORI request.
You may have me entitled to do a CORI request.
Do we have to do a comparable analysis here
with regard to BPD records or state police records?
-: Well, I certainly agree that the correct analysis is
is there anything in that statute that either expressly
or by necessary implication prohibits disclosure?
I say when one examines the statute, there is not.
It would mean, for example,
it's really a penumbra argument, right?
It's really saying, well, if it's been seven years
or three years since you were discharged,
the legislature said you can seal your records
or maybe you can even expunge them
and so they have a concern about that.
And they have a concern over here
that they've expressed in another statute.
They never say that the Criminal Offender Record
Information Act prohibits disclosure of this information
but we find it in the penumbra.
That I think would be wrong for two reasons.
First of all, it's a criminal statute.
People can be prosecuted for violations of it.
The prohibition should not be found in a penumbra.
Secondly, when you think about what kind
of additional information would fall within the statute
the disclosure of which would be criminalized,
one would have to consider things like the press releases,
that district attorneys properly release
upon an indictment or upon a conviction.
That's criminal offender record information.
-: Let me go back to your earlier argument
that you just made.
So what if the context isn't a criminal prosecution
rather a determination of whether or not
to turn over booking photos to the Globe.
Be nonetheless, interpret CORI utilizing the rule of lenity
because that could be a criminal prosecution.
-: As I understand the Commonwealth's position
it is that one violates CORI by releasing a booking photo,
which would mean that disclosure is a crime
and I say that is one reason why, in the absence of any
I say any language but certainly any explicit language
saying one cannot disclose that information,
the statute should not be interpreted that way.
Again, I think the Superior Court
took the most direct route.
The Superior Court said I'm looking at the definition.
You need a criminal proceeding to have been initiated.
-: They have a different view of that language
because what was deleted as far as the initiation
of criminal proceedings, the whole point was
to expand protection and your interpretation,
limits to protection of CORI.
That's the argument we heard.
-: I think my interpretation says with respect
to these requests, it remains the same
but if I could go further, I think the amendment
underscores that the current language and purpose
of the CORI Act is limited to the department's database.
That's why it made sense to use the language that they use,
recorded in criminal proceedings
that are not dismissed before arraignment.
The focus is what is going into that database
and there's many reasons for that.
There's policy reasons, they're compilations,
it's a lot of different types of information
then is that issue here?
But it's also because that is where the prohibitions
and only where the prohibitions on disclosure
are found under the current version of the CORI Act.
-: So, in your interpretation,
if an individual is charged with
say possession of marijuana with intent to distribute
and that case is dismissed before arraignment,
so therefore would not be part of CORI
and a criminal history check of that person would not reveal
that charge, you're saying that would still be
a public record if they went to the police department itself
and said, give me all such records of arrest?
-: I'm definitely saying CORI does,
would not prohibit the disclosure.
I also believe that the privacy analysis under exemption C
would be highly relevant to the answer
and if I may, the same analysis has to apply.
Let's say they're dismissed before arraignment,
under this hypothetical but there has been
a public disclosure of the arrest.
It was reported in the newspaper,
maybe there's even a press release.
If the Commonwealth is right, then that press release
can never be spoken of again
because that is criminal record information.
The case did not go to arraignment
and therefore it is a crime to disclose
or discuss the contents of that press release.
I'd suggest the statute cannot reasonably be read that way.
That's not what the statute's about,
at least as currently constituted.
-: Okay, thank you. -: Thank you, Your Honor.