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SJC-12690 Boston Globe Media Partners LLC
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V Boston Police Department.
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Miss Dewar, good morning.
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Good morning, Bessie Dewar
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for the Department of Criminal Justice Information Services
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and the Masters at State Police.
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The police departments in this case
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and the Supervisor of Public Records
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follow the CJIS's regulation interpreting the CORI law
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to protect police reports with containing charge
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or arrest related information and booking photographs
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under the CORI law that they are therefore exempt
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from disclosure under Public Records Law exemption A.
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Superior court should have upheld this interpretation
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of the CORI law for essentially
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three categories of reasons.
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First, it is consistent with the text
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of the CORI law itself in numerous ways
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and the legislator's evident intent
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to protect arrest related information.
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Second, it's consistent with this Court's long standing
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understanding of how the CORI law operates.
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And third, nothing in either the 2018 or 2010 amendments
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to the CORI law disrupted this long standing understanding.
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You're probably not surprised by this question
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but the 2018 amendment, such information
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shall be restricted to information recorded
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in criminal proceedings
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that are not dismissed before arraignment.
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Doesn't that assume that
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the criminal proceedings have commenced?
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Respectfully, we do not read that provision in that way.
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The legislative history behind that provision
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is admittedly sparse but very clear in what we have,
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which was that amendment was introduced to provide
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additional protection where cases are dismissed prior
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to arraignment.
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In other words, the matter was so insufficiently serious
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that it was dismissed or for whatever reasons
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dismissed prior to arraignment and it furthers
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the rehabilitative purposes of the CORI law,
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as discussed extensively by this court
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in both Pon and the recent show-cause hearings case
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which both acknowledged the extreme prejudice
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that can be caused by matters
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that are resolved at an early stage
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where a person does not have the right to say,
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"Vindicate themselves in court and so forth".
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So this provision was put in to ensure that the CORI law,
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it's important to keep in mind,
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the CORI definition does two things.
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It has two different functions.
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So the CORI law as created in 1972.
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On the one hand, created a new statewide system
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for sort of the management and supervision
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of criminalist information and the regulation thereof
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and specifically created a new statewide database.
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And now pursuant to the 2010 amendments,
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we have the 21st century version of that,
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which is of course the iCORI database,
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accessible by the internet.
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And in that system, the CORI law is concerned
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with protecting the integrity of that information
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and as discussed in the Pon case,
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funneling requesters to the iCORI regulated system
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of accurate information.
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On the other hand, the CORI definition,
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so it's regulating system as a whole,
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but at the definition also operates to protect information.
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And the CORI definition provides that CORI information
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is information in any form held by
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any criminal justice agency regarding including
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arrests and charges.
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In other words, it's a very, very broad definition.
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So we understand that sentence to essentially be
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kind of a belt and suspenders protection
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for these materials as this court may be aware,
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that the court activity record information, the Carry,
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which is maintained by probation,
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my understanding is that
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that the Carry doesn't even commence until arraignment
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and so there shouldn't be pre-arraignment
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information in the Carry and therefore,
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in the iCORI database and this provision was,
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as the legislator who introduced it said,
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intended to ensure that these pre-arraignment matters
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were not going to be disseminated pursuant
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to the regulated iCORI access provided in Section 172.
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I have a couple of questions.
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The first is that there is also this statute
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called the Public Records Act
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and it doesn't seem to me that the CORI act
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exists in splendid isolation.
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We have to harmonize this with the Public Records Act
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and with the strong prohibition against,
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keeping things private and squirreled away
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and we have to consider
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the Public Records Act very narrowly.
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The exemptions do it very narrowly
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and I'm not hearing you do that.
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Absolutely, Your Honor.
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We absolutely agree that there's a strong presumption
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in favor of disclosure of public records.
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And what we have here with the CORI statute
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is an instance where the legislature itself
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has struck a balance.
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The legislature, as discussed extensively by this court
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in the Pon case struck a balance in the CORI law
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trying to weigh on the one hand
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the strong interest in public disclosure.
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And of course, as this court knows,
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the legislature actually increased access to CORI
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in many ways, in the 2010 amendments.
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And then on the other hand protecting information
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for rehabilitative purposes,
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acknowledged by this court as well.
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And the particular balance that the legislature struck,
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I think is particularly evident in chapter six,
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Section 172(m), where the legislature expressly provided
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that not with standing the rest of the CORI law,
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police arrest logs, shall be public records.
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In other words, the legislature expressly provided
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that there would be an avenue
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in addition to public court records themselves,
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which of course are not subject to the CORI law
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but in addition to the court records,
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police departments shall maintain a public log
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for people to get access to this information.
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And I think it's interesting and extremely
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it confirms the CJIS's and this court's
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long standing understanding of the CORI law
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that in 2018 when the legislature
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added as part of the criminal justice reforms,
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not only this new sentence to the CORI definition
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but also new ceiling provisions
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and this is in 276 100 H and 100 L.
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And what these newly provided was that
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you could get expungement of events not even rising
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to the level of a conviction
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and when you obtain such an expungement order,
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probation, DCJIS and the court clerk are responsible
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for contacting the relevant police department
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and instructing the police department
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to expunge its own arrest log.
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I just wanna go back to the language of a statute
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because I'm not sure how to get around the 2018 amendment
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that says okay, here's what CORI is
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but this information shall be restricted
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to information recorded and criminal proceedings
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that are not dismissed before arraignment.
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I wanna just suggest that in reading
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and understanding that sentence,
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it's important to look at the sentence as a whole
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and obviously, in context of the statute as a whole.
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And what the sentence says is that
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that such information shall be restricted
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to information recorded in criminal proceedings
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that are not dismissed before arraignment
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and we would submit that when the statute uses the phrase
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criminal proceedings, it's talking about
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when criminal proceedings exist,
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when criminal proceedings exist the CORI information
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includes only those that are not dismissed
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prior to arraignment.
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In other words, there are criminal proceedings
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that are not dismissed prior to arraignment
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and with respect to those it all goes in the database
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but if there's a criminal proceedings
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and it continues past,
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it actually is arraigned then it's included.
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And I think understanding in that way is consistent
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with what existed before in that sentence,
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which was repealed and was removed at the same time,
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which said that such information shall be restricted to
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that recorded as the result of the initiation
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of criminal proceedings.
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How does this apply in the real world?
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Because you'd have to be blind not to notice
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that in some cases, the police released booking photographs
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on notorious cases all the time and police reports.
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And then here, there's a request by the Globe
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now it's a CORI violation to release a booking photograph
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that was released two days ago in a notorious case.
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So isn't that inconsistent?
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Respectfully, we think that it's not inconsistent
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and Of course, we are here today
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because we would like the court to set a single rule
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that's applicable across all cases--
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Will other police departments do that
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and in a notorious case they're violating the CORI law?
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And committing crime.
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If I may sort of go through a couple of the relevant parts
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of the statute that I think are really important here.
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Is the AG gonna prosecute them?
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There absolutely are remedies available
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when CORI abuse occurs and there are at least four
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that I'm aware of, chapter six, section 177
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provides a private cause of action including
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statutory damages, attorneys fees.
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Section 1678 provides for criminal penalties
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in certain cases.
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The CJIS itself has a board,
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the Criminal Record Review Board,
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which is expressly established the purposes
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of adjudicating CORI complaints.
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The record appendix at I think pages 132 to 136
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contains summaries of 10 different cases where the board
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found a CORI violation between 2012 and 2016.
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Of police departments?
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Including, a number of police departments
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that are expressly identified in the record appendix
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at 132 to 136.
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They've been punished in some way?
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There's one case where they were fined, there were--
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That's used in a police officer
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who's looking up records outside the book,
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so to speak, correct?
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I think that that is true for at least some of them
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and there's a case cited in our brief, the Roggio case,
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R-O-G-G-I-O, we don't discuss it for this purpose,
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but that was a private cause of action brought
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by someone for damages because of sort
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of extracurricular CORI searching and so forth.
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and then further just a fourth,
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I think that even chapter 260 a
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could come into effect here if someone is wrongly
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and unethically out of loyalty abusing their position,
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Visa V. CORI.
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So there are lots of avenues for abuse
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but I wanna go back to not the situation of abuse
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but what is the contemplated role of law enforcement
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Visa V. CORI because as the Balan case from this court,
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reaffirm the reasonableness of the CJIS regulation
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on this score, which says that law enforcement
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and this is quoting the 172 as it exists now,
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in its exact terms,
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law enforcement can use CORI in the actual performance
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of their criminal justice duties
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is the phrasing of the statute.
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Of course when a prosecutor stands up in court,
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when a police is interviewing a witness,
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when a police is talking to a victim of a crime,
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they may need to use and talk about CORI.
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And it's inescapable and it's part of the tension
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of the CORI law, right?
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The CORI law provides a degree
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of practical obscurity to people
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but it doesn't mean that our whole
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criminal justice system is secret.
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All our town newspapers would say
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this person was just arrested for drunk driving
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for the fifth time and here's the photograph.
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We get that all the time.
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Is that a violation of CORI?
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Well, the question is here,
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what has the legislature provided?
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Should that be CORI or not?
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Should the police departments be able to,
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in this case Of course, these are not requests--
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Answer the question, yes or no, please.
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Yeah, please.
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Is it a violation of CORI what he said?
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Is it a violation of CORI for the police to do
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what they routinely do,
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which is to release the police report
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and then have a photograph of the individual,
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so it's on the local newspaper
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that this individual was arrested
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00:12:00.220 --> 00:12:03.890
and here's what the police report says and here's the photo.
270
00:12:03.890 --> 00:12:05.150
The answer is no,
271
00:12:05.150 --> 00:12:08.480
if it's contemporaneous to the investigation and prosecution
272
00:12:08.480 --> 00:12:12.113
pursuant to DCJIS regulation at 803 CMR--
273
00:12:17.657 --> 00:12:18.560
Not to do it inconsistently.
274
00:12:18.560 --> 00:12:20.970
It's not a CORI violation to do it
275
00:12:20.970 --> 00:12:23.090
when it's a private individual but it's a CORI violation
276
00:12:23.090 --> 00:12:24.840
to do when it's a police officer's?
277
00:12:26.351 --> 00:12:27.290
Is that the way it's working?
278
00:12:27.290 --> 00:12:28.870
The relevant distinction is the timing.
279
00:12:28.870 --> 00:12:31.250
The relevant is distinction is that the CORI law protects
280
00:12:31.250 --> 00:12:35.730
against requests for compilations of historical information
281
00:12:35.730 --> 00:12:36.680
about individuals.
282
00:12:36.680 --> 00:12:39.050
If the Globe can request booking photographs,
283
00:12:39.050 --> 00:12:40.330
pursuant to this Court's decision,
284
00:12:40.330 --> 00:12:42.610
the Globe can request all the booking photographs
285
00:12:42.610 --> 00:12:44.057
going back in all of time and for everyone.
286
00:12:44.057 --> 00:12:46.030
But the Globe hasn't made that request.
287
00:12:46.030 --> 00:12:48.270
I mean, the request here as I understand it,
288
00:12:48.270 --> 00:12:52.540
is they are looking for police reports
289
00:12:52.540 --> 00:12:57.540
and photographs of officers who are charged
290
00:12:58.690 --> 00:12:59.773
or arrested for OUI.
291
00:13:01.164 --> 00:13:03.810
That's at least one part of it, correct?
292
00:13:03.810 --> 00:13:06.210
For the mass state police, it's two particular officers.
293
00:13:06.210 --> 00:13:10.830
For the BPD, it's actually all officers from 2012 to 2016.
294
00:13:10.830 --> 00:13:12.460
Who were charged with OUI?
295
00:13:12.460 --> 00:13:13.704
Who are charged with OUI.
296
00:13:13.704 --> 00:13:16.580
Okay, you're not asking for the criminal histories
297
00:13:16.580 --> 00:13:18.780
of these individuals, they're asking only for whether
298
00:13:18.780 --> 00:13:22.300
they were charged with this particular crime.
299
00:13:22.300 --> 00:13:24.210
They are asking for the police reports.
300
00:13:24.210 --> 00:13:26.910
Okay and well, let's stop there.
301
00:13:26.910 --> 00:13:31.590
Are those police reports filed with the complaint?
302
00:13:31.590 --> 00:13:33.470
That may depend on the matter,
303
00:13:33.470 --> 00:13:35.516
and that's an important distinction here and it goes to--
304
00:13:35.516 --> 00:13:37.470
I understand because if they are filed with the complaint
305
00:13:37.470 --> 00:13:40.270
pursuant to Globe newspaper versus DA for Middle District,
306
00:13:40.270 --> 00:13:45.130
aren't they as public as the information in the court files.
307
00:13:45.130 --> 00:13:46.640
Court files are public.
308
00:13:46.640 --> 00:13:48.610
The distinction between the Middle District case
309
00:13:48.610 --> 00:13:50.460
and this case is really important.
310
00:13:50.460 --> 00:13:52.210
In the Middle District case that what was in
311
00:13:52.210 --> 00:13:54.160
before the court was docket numbers,
312
00:13:54.160 --> 00:13:57.360
which inherently are copies of a court record.
313
00:13:57.360 --> 00:14:01.860
These records here are compilations of police departments
314
00:14:01.860 --> 00:14:03.800
and they are not necessarily part of a court record
315
00:14:03.800 --> 00:14:06.177
if the case is sealed, if the case was never--
316
00:14:07.480 --> 00:14:09.750
Let's go back to the question here.
317
00:14:09.750 --> 00:14:12.140
Have you checked with regard to these requests
318
00:14:12.140 --> 00:14:13.960
as to how many of these police reports
319
00:14:13.960 --> 00:14:18.350
were in fact filed in court and are not sealed in?
320
00:14:18.350 --> 00:14:21.020
Aren't those discoverable under Globe newspaper
321
00:14:21.020 --> 00:14:22.910
versus DA from Middle District?
322
00:14:22.910 --> 00:14:24.910
In my case, there are only three
323
00:14:24.910 --> 00:14:28.900
particular people involved and I have not gone to see
324
00:14:28.900 --> 00:14:32.910
if there is a public court record regarding them.
325
00:14:32.910 --> 00:14:34.030
I do not believe that there are,
326
00:14:34.030 --> 00:14:35.170
otherwise the Globe wouldn't have
327
00:14:35.170 --> 00:14:37.252
sought these records from us.
328
00:14:37.252 --> 00:14:38.085
Well, they will do the docket number
329
00:14:38.085 --> 00:14:39.913
in order to be able to find the case.
330
00:14:40.830 --> 00:14:44.135
If there is no docket number, that was my point.
331
00:14:44.135 --> 00:14:49.135
The question I guess is I mean, well, let's step back
332
00:14:49.330 --> 00:14:53.160
juveniles are not within the scope of CORI, correct?
333
00:14:53.160 --> 00:14:56.530
Juvenile records unless it's an adult.
334
00:14:56.530 --> 00:14:59.020
That is the final sentence, yes.
335
00:14:59.020 --> 00:15:02.550
So is it your view that juvenile records
336
00:15:02.550 --> 00:15:04.300
have no protection under CORI
337
00:15:04.300 --> 00:15:08.810
and therefore would be discoverable,
338
00:15:08.810 --> 00:15:11.220
not discoverable would be public records
339
00:15:11.220 --> 00:15:13.257
and would not be protected by CORI?
340
00:15:13.257 --> 00:15:14.090
Absolutely not, Your Honor,
341
00:15:14.090 --> 00:15:15.610
which is why that's exactly consistent with our reading
342
00:15:15.610 --> 00:15:17.990
of the new second sentence of the CORI definition.
343
00:15:17.990 --> 00:15:19.980
These exclusions from the CORI definition
344
00:15:19.980 --> 00:15:22.700
are precisely to protect that information
345
00:15:22.700 --> 00:15:24.580
that it not be in the database.
346
00:15:24.580 --> 00:15:27.730
Okay but you're saying that this is protected
347
00:15:27.730 --> 00:15:30.640
because it is with CORI and then you're saying,
348
00:15:30.640 --> 00:15:32.280
well, juvenile records are protected,
349
00:15:32.280 --> 00:15:33.960
because they're not with CORI.
350
00:15:33.960 --> 00:15:35.617
So if they're not within CORI
351
00:15:35.617 --> 00:15:38.630
and you're arguing the CORI protects them
352
00:15:38.630 --> 00:15:41.500
how are juvenile records protected under CORI?
353
00:15:41.500 --> 00:15:43.490
We think that juvenile records are
354
00:15:43.490 --> 00:15:45.810
and we have argued are protected under CORI
355
00:15:45.810 --> 00:15:47.900
by necessary implication of the statute.
356
00:15:47.900 --> 00:15:50.980
Which is to say that the clear intent of the legislature
357
00:15:50.980 --> 00:15:53.640
was to protect juveniles, was to protect cases dismissed
358
00:15:53.640 --> 00:15:56.020
prior to arraignment, was to, in the final sentence,
359
00:15:56.020 --> 00:15:59.010
protect cases where it's not punishable by incarceration.
360
00:15:59.010 --> 00:16:00.960
We have to read the statute as a whole.
361
00:16:02.449 --> 00:16:04.450
Section 167 expressly says at the beginning
362
00:16:04.450 --> 00:16:06.030
in the preface to the definitions,
363
00:16:06.030 --> 00:16:08.250
that these terms shall have the following meanings
364
00:16:08.250 --> 00:16:10.370
unless contexts dictates otherwise
365
00:16:10.370 --> 00:16:12.430
and we think this is the most harmonious reading
366
00:16:12.430 --> 00:16:13.460
of the statute as a whole.
367
00:16:13.460 --> 00:16:16.503
But isn't that the problem with your argument?
368
00:16:18.920 --> 00:16:23.020
The purpose of CORI, as it has been understood,
369
00:16:23.020 --> 00:16:24.240
at least by the court system
370
00:16:24.240 --> 00:16:26.450
and working on our public portal,
371
00:16:26.450 --> 00:16:28.940
is that we will not permit somebody to do an end run
372
00:16:28.940 --> 00:16:30.970
around CORI by finding a different way
373
00:16:30.970 --> 00:16:33.780
to get someone's full criminal history.
374
00:16:33.780 --> 00:16:34.613
Agreed.
375
00:16:34.613 --> 00:16:36.430
It does not protect individuals
376
00:16:36.430 --> 00:16:40.950
from being able to identify particular criminal acts
377
00:16:40.950 --> 00:16:42.960
by going in and finding out what happened
378
00:16:42.960 --> 00:16:45.140
with regard to a particular incident.
379
00:16:45.140 --> 00:16:47.190
Respectfully, the CORI definition protects
380
00:16:47.190 --> 00:16:49.810
CORI information in any form
381
00:16:49.810 --> 00:16:51.098
and going back to your--
382
00:16:51.098 --> 00:16:52.320
But therefore, it doesn't protect juveniles
383
00:16:52.320 --> 00:16:54.640
because juveniles are not within CORI.
384
00:16:54.640 --> 00:16:58.240
So you have this problem is that you're contending
385
00:16:58.240 --> 00:17:00.530
that this is protected by CORI
386
00:17:00.530 --> 00:17:01.810
and then when there's information,
387
00:17:01.810 --> 00:17:04.760
which is not protected by CORI, such as juveniles
388
00:17:04.760 --> 00:17:07.010
and individuals who's had their cases
389
00:17:07.010 --> 00:17:09.300
dismissed before arraignment,
390
00:17:09.300 --> 00:17:12.040
you're saying, oh, they're protected by CORI too.
391
00:17:12.040 --> 00:17:15.100
But the only thing that's consistent is that
392
00:17:15.100 --> 00:17:17.920
the legislature wanted to say we don't want this part.
393
00:17:17.920 --> 00:17:20.340
We don't want cases that are dismissed before arraignment
394
00:17:20.340 --> 00:17:22.310
to be part of an individual's criminal history
395
00:17:22.310 --> 00:17:25.054
and therefore, when you ask for John Smith
396
00:17:25.054 --> 00:17:27.580
and John Smith had a prior arrest,
397
00:17:27.580 --> 00:17:30.680
which was dismissed before arraignment, you won't find that
398
00:17:30.680 --> 00:17:32.680
when you get John Smith's criminal history.
399
00:17:32.680 --> 00:17:35.110
That's absolutely the way that it should and does work.
400
00:17:35.110 --> 00:17:38.570
And the problem in this case is that what the Globe
401
00:17:38.570 --> 00:17:41.050
is seeking to do is itself create an end run
402
00:17:41.050 --> 00:17:42.370
and of course, the Public Records Law--
403
00:17:42.370 --> 00:17:44.020
How are they seeking the end run?
404
00:17:44.020 --> 00:17:46.360
The Public Records Law does not discriminate
405
00:17:46.360 --> 00:17:48.785
among requesters, right?
406
00:17:48.785 --> 00:17:50.220
And the CORI law does not discriminate
407
00:17:50.220 --> 00:17:51.950
among subjects of CORI.
408
00:17:51.950 --> 00:17:54.000
So if the court in this case were to rule
409
00:17:54.000 --> 00:17:56.350
that the Globe on the one hand
410
00:17:56.350 --> 00:17:58.900
for clearly public interested reasons,
411
00:17:58.900 --> 00:18:02.170
can get this information about these police officers
412
00:18:02.170 --> 00:18:04.720
that also means that database companies discussed
413
00:18:04.720 --> 00:18:07.070
by this court in Pon can likewise request
414
00:18:07.070 --> 00:18:09.810
every booking photograph from every police department
415
00:18:09.810 --> 00:18:12.445
of every individual booked.
416
00:18:12.445 --> 00:18:16.010
As highlighted by the Newspaper Publishers,
417
00:18:16.010 --> 00:18:19.530
Amicus brief, states have taken different policy
418
00:18:19.530 --> 00:18:22.378
approaches here and some states do not keep booking
419
00:18:22.378 --> 00:18:25.500
photographs private as does the federal government.
420
00:18:25.500 --> 00:18:27.950
So the question here is what is the balance
421
00:18:27.950 --> 00:18:29.350
that the legislature has struck?
422
00:18:29.350 --> 00:18:31.910
And we submit that based on the CORI definition,
423
00:18:31.910 --> 00:18:34.820
which protects this information in any form
424
00:18:34.820 --> 00:18:36.330
and in which this court has long understood
425
00:18:36.330 --> 00:18:37.163
that to be the case.
426
00:18:37.163 --> 00:18:40.730
The Ryan's team case from 1979 under substantially
427
00:18:40.730 --> 00:18:43.800
the identical CORI definition was all about
428
00:18:43.800 --> 00:18:46.210
whether police reports were CORI protected
429
00:18:46.210 --> 00:18:48.240
and the court said that they were and so far as
430
00:18:48.240 --> 00:18:50.200
they kept contained CORI information.
431
00:18:50.200 --> 00:18:52.960
That was from 1979, nothing the legislature has done
432
00:18:52.960 --> 00:18:57.960
since then has disturbed that understanding of the law.
433
00:18:58.400 --> 00:19:00.570
I realize my time has long gone.
434
00:19:00.570 --> 00:19:04.450
I understand, so do you agree
435
00:19:04.450 --> 00:19:07.930
that is a legitimate matter of public interest
436
00:19:07.930 --> 00:19:11.590
as to whether the police are appropriately handling
437
00:19:11.590 --> 00:19:13.530
individuals who are police officers
438
00:19:13.530 --> 00:19:14.960
who've been convicted of OUIs
439
00:19:14.960 --> 00:19:18.040
when they're responsible for arresting individuals
440
00:19:18.040 --> 00:19:19.220
for that crime?
441
00:19:19.220 --> 00:19:20.053
Of course.
442
00:19:20.053 --> 00:19:22.510
Okay, so how are they supposed to find this out?
443
00:19:23.526 --> 00:19:27.090
If you're gonna be blocking them from learning
444
00:19:27.090 --> 00:19:29.500
what has happened, they don't even know which officers
445
00:19:29.500 --> 00:19:33.530
have had OUIs, how are they gonna be able to evaluate
446
00:19:33.530 --> 00:19:36.360
whether or not the police are acting appropriately
447
00:19:36.360 --> 00:19:38.720
with regard to individuals who have been accused
448
00:19:38.720 --> 00:19:41.030
and charged with crimes?
449
00:19:41.030 --> 00:19:43.500
There are a host of different ways of discovering that.
450
00:19:43.500 --> 00:19:44.333
Like what?
451
00:19:44.333 --> 00:19:47.736
A good example is highlighted by the courts recent case
452
00:19:47.736 --> 00:19:51.790
the whole show-cause and the decision publish in September
453
00:19:51.790 --> 00:19:53.020
in which the court pointed out
454
00:19:53.020 --> 00:19:54.770
that under trial court rule 14,
455
00:19:54.770 --> 00:19:57.900
even though denied applications for criminal complaints
456
00:19:57.900 --> 00:20:00.480
are typically not public and are kept segregable.
457
00:20:00.480 --> 00:20:01.910
Under the trial court rule 14
458
00:20:01.910 --> 00:20:06.910
and the trial courts internal practice rules.
459
00:20:11.000 --> 00:20:13.190
A party like the Globe who has a public interest
460
00:20:13.190 --> 00:20:16.170
in disclosure of materials can seek access those materials.
461
00:20:16.170 --> 00:20:18.530
And of course, a denied application for criminal complaint
462
00:20:18.530 --> 00:20:20.970
would include the police report,
463
00:20:20.970 --> 00:20:22.720
usually the police report,
464
00:20:22.720 --> 00:20:24.670
one would assume, booking photographs and so forth.
465
00:20:24.670 --> 00:20:26.610
And that's what's alleged to have occurred
466
00:20:26.610 --> 00:20:29.620
with the judge incident.
467
00:20:29.620 --> 00:20:32.130
I know that language, I wrote it
468
00:20:32.130 --> 00:20:34.640
but tell me how it helps you
469
00:20:34.640 --> 00:20:37.960
because that says that it is a matter of public interest
470
00:20:37.960 --> 00:20:40.710
when public officials are being accused of crimes
471
00:20:40.710 --> 00:20:44.650
and therefore, the release of it for an otherwise
472
00:20:44.650 --> 00:20:47.910
confidential proceeding is at its apex.
473
00:20:47.910 --> 00:20:48.810
Absolutely.
474
00:20:48.810 --> 00:20:52.620
You still haven't told me how if there is a concern,
475
00:20:52.620 --> 00:20:55.100
or at least a desire to inquire as to
476
00:20:56.200 --> 00:20:57.960
how the police are handling individuals
477
00:20:57.960 --> 00:21:00.490
who have themselves been charged with crime,
478
00:21:00.490 --> 00:21:02.090
how is that to be done?
479
00:21:02.090 --> 00:21:04.430
Well, I don't wanna repeat myself
480
00:21:04.430 --> 00:21:08.080
but as the court held in the show-cause hearing case
481
00:21:08.080 --> 00:21:10.610
trial court rule 14 provides a really excellent mechanism
482
00:21:10.610 --> 00:21:14.010
for this in the sense that it expressly disclosure or not,
483
00:21:14.010 --> 00:21:15.570
is based on the public interest
484
00:21:15.570 --> 00:21:20.570
and so an ordinary person who's just an ordinary person,
485
00:21:20.990 --> 00:21:22.580
there wouldn't be a lot of public interest
486
00:21:22.580 --> 00:21:25.399
in obtaining a denied criminal complaint
487
00:21:25.399 --> 00:21:26.770
with respect to them.
488
00:21:26.770 --> 00:21:28.590
But a public official, there could be a lot
489
00:21:28.590 --> 00:21:29.816
of public interest in that information.
490
00:21:29.816 --> 00:21:30.880
But there could be a public interest,
491
00:21:30.880 --> 00:21:34.650
say, suppose we wanted to look back in time
492
00:21:34.650 --> 00:21:38.270
and say, let's look back and we ask the police department
493
00:21:38.270 --> 00:21:42.050
in New Bedford, give us the last 10 convicted people
494
00:21:42.050 --> 00:21:45.180
who've been convicted all over, the cases are all over
495
00:21:45.180 --> 00:21:47.590
and give us the complete report in the complaint
496
00:21:47.590 --> 00:21:50.620
so we can follow how they've been doing in their life.
497
00:21:50.620 --> 00:21:54.780
Well, clearly, under the court records exception,
498
00:21:54.780 --> 00:21:58.123
a whole bunch of that material would be public.
499
00:21:59.140 --> 00:22:01.600
Will the booking photo be public?
500
00:22:01.600 --> 00:22:04.100
Anything that's in the court record is public
501
00:22:04.100 --> 00:22:05.910
and available to the public
502
00:22:05.910 --> 00:22:09.790
but with respect to police departments,
503
00:22:09.790 --> 00:22:12.520
compilations of police incident reports
504
00:22:12.520 --> 00:22:15.060
the legislature has clearly established
505
00:22:15.060 --> 00:22:17.090
that the mechanism and this is another way
506
00:22:17.090 --> 00:22:19.650
of shining light on what is exactly occurring
507
00:22:19.650 --> 00:22:21.500
and so forth is the police arrest log.
508
00:22:21.500 --> 00:22:23.960
And that is established by the legislature
509
00:22:23.960 --> 00:22:25.220
as a place to find this information.
510
00:22:25.220 --> 00:22:27.300
I would also note that the legislature is clearly
511
00:22:27.300 --> 00:22:29.610
isn't concerned about this arrest information
512
00:22:29.610 --> 00:22:32.090
and in the 2018 criminal forums established
513
00:22:32.090 --> 00:22:34.790
a whole new requirement that the CJIS
514
00:22:34.790 --> 00:22:39.790
and this is in 172, excuse me,
515
00:22:40.720 --> 00:22:43.090
I'm not getting the citation immediately
516
00:22:43.090 --> 00:22:48.090
but, oh yes, 167(a), sub(i) requires newly
517
00:22:48.270 --> 00:22:51.350
that the CJIS collect a lot of arrest data,
518
00:22:51.350 --> 00:22:54.680
including the race and gender and age of arrestees
519
00:22:54.680 --> 00:22:58.920
and so forth and publish it on a anonymized basis.
520
00:22:58.920 --> 00:23:01.320
So the legislators clearly very concerned about
521
00:23:01.320 --> 00:23:04.510
that arrest of data be available in some forms
522
00:23:04.510 --> 00:23:06.080
but they just wanna keep it protected
523
00:23:06.080 --> 00:23:08.710
for ordinary people who are trying to go out their lives
524
00:23:08.710 --> 00:23:12.230
and not have websites extorting them,
525
00:23:12.230 --> 00:23:14.780
try to sort of pay money to take down your mug shot
526
00:23:15.821 --> 00:23:16.860
from online.
527
00:23:16.860 --> 00:23:17.930
You type in the person's name
528
00:23:17.930 --> 00:23:19.830
and the first thing that comes up is,
529
00:23:19.830 --> 00:23:21.280
a mug shot from an incident
530
00:23:21.280 --> 00:23:22.600
that wasn't even ever prosecuted,
531
00:23:22.600 --> 00:23:24.270
which is incredibly prejudicial
532
00:23:24.270 --> 00:23:26.430
as this Court recognized in the show-cause hearing case.
533
00:23:26.430 --> 00:23:29.663
So you're saying that if, in fact,
534
00:23:30.560 --> 00:23:33.470
the mug shot had been part of the court record,
535
00:23:33.470 --> 00:23:35.700
then the Globe could get that information?
536
00:23:35.700 --> 00:23:37.810
The Globe would get that information from the court.
537
00:23:37.810 --> 00:23:40.254
But they could not get it from the police department
538
00:23:40.254 --> 00:23:41.304
as the case was over?
539
00:23:42.960 --> 00:23:43.793
Correct.
540
00:23:44.980 --> 00:23:46.850
But I still don't understand how they're supposed to know
541
00:23:46.850 --> 00:23:50.320
how many police officers say, in state police
542
00:23:50.320 --> 00:23:51.710
had been arrested for OUI.
543
00:23:51.710 --> 00:23:53.263
How are you supposed to know that?
544
00:23:55.430 --> 00:23:59.140
I think one could submit a public records request
545
00:23:59.140 --> 00:24:01.590
to a police department that wasn't requesting
546
00:24:01.590 --> 00:24:03.950
the police incident reports or the booking photographs
547
00:24:03.950 --> 00:24:05.220
for that information.
548
00:24:05.220 --> 00:24:07.410
How are they supposed to find out what actually occurred
549
00:24:07.410 --> 00:24:08.990
and be able to evaluate whether or not
550
00:24:08.990 --> 00:24:11.350
they receive special treatment?
551
00:24:11.350 --> 00:24:15.470
You could use trial court rule 14,
552
00:24:15.470 --> 00:24:17.683
you could look at the arrest logs.
553
00:24:20.260 --> 00:24:21.936
The two incidents that--
554
00:24:21.936 --> 00:24:22.890
Both of the arrest logs,
555
00:24:22.890 --> 00:24:24.740
I have to go through every the arrest logs for every day
556
00:24:24.740 --> 00:24:26.450
and then I'd then compare that
557
00:24:26.450 --> 00:24:28.600
to the names of every state police officer.
558
00:24:29.530 --> 00:24:31.040
I mean, my understanding is that
559
00:24:31.040 --> 00:24:34.470
that the press does closely follow arrest logs.
560
00:24:34.470 --> 00:24:39.470
They literally publish them and the cases here regarding--
561
00:24:39.930 --> 00:24:43.040
I mean, yes, they could in theory go
562
00:24:43.040 --> 00:24:44.780
to every all 99 courthouses
563
00:24:44.780 --> 00:24:47.010
and check every single individual
564
00:24:47.010 --> 00:24:49.903
but of course the question, I guess is,
565
00:24:51.890 --> 00:24:55.510
again, we're not speaking about give us every arrest
566
00:24:56.470 --> 00:25:00.010
record for all persons, they're asking only with regard to
567
00:25:00.923 --> 00:25:03.530
police officers or state troopers
568
00:25:03.530 --> 00:25:06.940
who have been arrested or charged with OUI
569
00:25:06.940 --> 00:25:08.530
and trying to find out
570
00:25:08.530 --> 00:25:10.963
whether they were treated differently.
571
00:25:10.963 --> 00:25:14.250
Well, the problem is that the CORI law does not contain
572
00:25:14.250 --> 00:25:16.320
a general public interest exception
573
00:25:16.320 --> 00:25:17.780
or a public official exception.
574
00:25:17.780 --> 00:25:20.630
Even public officials have CORI protections.
575
00:25:20.630 --> 00:25:22.440
Now there there could be ways around that,
576
00:25:22.440 --> 00:25:24.810
for example, through trial court route 14,
577
00:25:24.810 --> 00:25:27.720
getting these information from the courts and so forth
578
00:25:27.720 --> 00:25:30.970
but the superior court declaratory judgment below,
579
00:25:30.970 --> 00:25:34.340
which did he only to public officials
580
00:25:34.340 --> 00:25:38.730
and police officers has no basis in the actual statute.
581
00:25:38.730 --> 00:25:41.890
The legislature has obviously a lot of concern
582
00:25:41.890 --> 00:25:44.920
about balancing the clear public interest and disclosure
583
00:25:44.920 --> 00:25:46.520
and the rehabilitative interests.
584
00:25:46.520 --> 00:25:48.700
And the balance that they struck is,
585
00:25:48.700 --> 00:25:51.240
with respect to police incident reports
586
00:25:51.240 --> 00:25:54.190
that concern arrest or charge and booking photographs
587
00:25:54.190 --> 00:25:56.603
that those are protected by the CORI law.
588
00:25:58.010 --> 00:25:59.300
All right, thank you.
589
00:25:59.300 --> 00:26:00.133
Thank you.
590
00:26:05.043 --> 00:26:06.293
Mr. Lederman.
591
00:26:12.060 --> 00:26:13.280
Good morning, may I please the court.
592
00:26:13.280 --> 00:26:15.640
My name is Jason Lederman and I am here as Assistant
593
00:26:15.640 --> 00:26:17.300
Corporation Counsel for the city of Boston
594
00:26:17.300 --> 00:26:19.590
representing the Boston Police Department.
595
00:26:19.590 --> 00:26:21.300
Boston Police Department is asking for this court
596
00:26:21.300 --> 00:26:24.380
to reverse lower court's ruling and find the CJIS regulation
597
00:26:24.380 --> 00:26:26.140
as a reasonable interpretation of the statute
598
00:26:26.140 --> 00:26:27.803
and therefore do due deference.
599
00:26:29.260 --> 00:26:31.560
The Boston Police Department is adopting
600
00:26:31.560 --> 00:26:33.020
the Attorney General, the CJIS
601
00:26:33.020 --> 00:26:34.920
and mastery state police position essentially
602
00:26:34.920 --> 00:26:37.710
that the core protections do go into effect
603
00:26:37.710 --> 00:26:39.440
at the time of arrest.
604
00:26:39.440 --> 00:26:41.410
Additionally, I'd like to draw the court's attention
605
00:26:41.410 --> 00:26:43.680
and highlight essentially the difference in the requests
606
00:26:43.680 --> 00:26:45.800
that the Globe made to the Massachusetts State Police
607
00:26:45.800 --> 00:26:47.950
and the Boston Police Department in this case.
608
00:26:47.950 --> 00:26:50.610
As a court noted previously when my sister was speaking,
609
00:26:50.610 --> 00:26:53.950
the request to the Massachusetts State Police
610
00:26:53.950 --> 00:26:55.700
was for three specific incidents
611
00:26:55.700 --> 00:26:57.430
that they were aware of at that time.
612
00:26:57.430 --> 00:27:01.740
They were granted not explicitly contemporaneous
613
00:27:01.740 --> 00:27:03.740
with the original incident.
614
00:27:03.740 --> 00:27:05.540
However, the request the Boston Police Department
615
00:27:05.540 --> 00:27:07.610
was for two and a half years or a little bit more than two
616
00:27:07.610 --> 00:27:11.650
and a half years of incidents from January of 2012
617
00:27:11.650 --> 00:27:14.200
to October 21st of 2014.
618
00:27:14.200 --> 00:27:15.447
Certainly--
619
00:27:15.447 --> 00:27:17.490
I'm sorry but limited only to Boston Police officers
620
00:27:17.490 --> 00:27:19.320
who were themselves arrested for a OUI.
621
00:27:19.320 --> 00:27:20.605
Yes, Your Honor.
622
00:27:20.605 --> 00:27:22.800
Not asking for every arrest the BPD did.
623
00:27:22.800 --> 00:27:23.633
That's correct, Your Honor
624
00:27:23.633 --> 00:27:25.470
but the Boston Police Department's position
625
00:27:25.470 --> 00:27:27.590
and I believe that the AG's position would also be
626
00:27:27.590 --> 00:27:30.780
that essentially the CORI applies or it doesn't apply.
627
00:27:30.780 --> 00:27:35.780
In this situation, there is no carve out in the statute
628
00:27:36.010 --> 00:27:37.450
for police officers.
629
00:27:37.450 --> 00:27:40.453
Does BPD release working photographs routinely?
630
00:27:41.420 --> 00:27:42.760
My understanding is they do not release
631
00:27:42.760 --> 00:27:43.820
booking photos routinely.
632
00:27:43.820 --> 00:27:48.210
In fact, the lower court found in its order
633
00:27:48.210 --> 00:27:51.190
that the Boston Police Department releases
634
00:27:51.190 --> 00:27:54.080
only contemporaneous information with arrest
635
00:27:54.080 --> 00:27:57.680
and additionally, that historical information
636
00:27:57.680 --> 00:28:00.350
which certainly would not be contemporaneous
637
00:28:00.350 --> 00:28:03.060
is released only with non-identifying information
638
00:28:03.060 --> 00:28:05.147
which should be consistent with how they respond
639
00:28:05.147 --> 00:28:06.550
with the Globe's request in this case.
640
00:28:06.550 --> 00:28:08.593
So there's a notorious murder,
641
00:28:09.630 --> 00:28:11.880
does the BPD release the police report
642
00:28:11.880 --> 00:28:15.680
in the booking photograph to tell the newspapers?
643
00:28:15.680 --> 00:28:16.750
My understanding, Your Honor,
644
00:28:16.750 --> 00:28:19.620
is that BPD may release in the police logs,
645
00:28:19.620 --> 00:28:21.573
certainly contemporaneous with arrest the information
646
00:28:21.573 --> 00:28:23.910
that is required to release in those logs.
647
00:28:23.910 --> 00:28:26.830
Additionally, there may be a release regarding
648
00:28:27.900 --> 00:28:29.990
not sure that this is contained directly within the record,
649
00:28:29.990 --> 00:28:32.030
certainly but there may be a release
650
00:28:33.060 --> 00:28:35.730
of information that is contemporaneous with the arrest
651
00:28:35.730 --> 00:28:39.410
but that would be supported by both the CJIS regulations
652
00:28:39.410 --> 00:28:42.980
found in 7.10 of the CMRs as well as the Belen case
653
00:28:42.980 --> 00:28:44.730
which this Court has opined regarding.
654
00:28:44.730 --> 00:28:47.870
The distinction you're drawing that we're asking about
655
00:28:47.870 --> 00:28:49.610
between the search for booking photographs
656
00:28:49.610 --> 00:28:52.010
and police reports, will be this contemporaneous
657
00:28:52.010 --> 00:28:53.920
with the rest arrest exception?
658
00:28:53.920 --> 00:28:55.157
Yes, Your Honor.
659
00:28:55.157 --> 00:28:56.620
And have you checked to see whether
660
00:28:56.620 --> 00:28:58.620
any of these police reports were in fact
661
00:29:00.400 --> 00:29:02.490
filed with the court as part of the complaint?
662
00:29:02.490 --> 00:29:03.990
Your Honor, I did not check.
663
00:29:12.150 --> 00:29:15.140
If matters are publicly available
664
00:29:15.140 --> 00:29:17.912
and in the files of the police department
665
00:29:17.912 --> 00:29:18.960
of the Globe newspaper versus DA,
666
00:29:18.960 --> 00:29:21.385
are they not public records?
667
00:29:21.385 --> 00:29:22.218
Your Honor, there are records
668
00:29:22.218 --> 00:29:23.480
that are contained within the court records.
669
00:29:23.480 --> 00:29:25.710
Certainly, given the holding in that case,
670
00:29:25.710 --> 00:29:28.470
those would be public records from the court.
671
00:29:28.470 --> 00:29:29.303
Okay.
672
00:29:30.333 --> 00:29:31.810
If you said, okay, we'll give you the docket number
673
00:29:31.810 --> 00:29:33.580
and you can find that?
674
00:29:33.580 --> 00:29:35.800
Your Honor I don't believe that the alternative was
675
00:29:35.800 --> 00:29:36.800
that we would provide a document.
676
00:29:36.800 --> 00:29:37.997
I can tell the court is
677
00:29:37.997 --> 00:29:38.950
that the Boston Police Department did respond
678
00:29:38.950 --> 00:29:40.260
and in fact provided the police reports
679
00:29:40.260 --> 00:29:41.860
without identifying information.
680
00:29:41.860 --> 00:29:43.770
So the information was given to the Globe.
681
00:29:43.770 --> 00:29:45.330
But how was the Globe gonna use that
682
00:29:45.330 --> 00:29:47.200
to determine whether or not these individuals
683
00:29:47.200 --> 00:29:51.330
were appropriately disciplined or treated appropriately?
684
00:29:51.330 --> 00:29:52.163
Certainly, Your Honor, I understand
685
00:29:52.163 --> 00:29:53.170
that there's a public interest
686
00:29:53.170 --> 00:29:54.960
that the press received this information
687
00:29:54.960 --> 00:29:57.720
but the legislature has expressed a clear public interest
688
00:29:57.720 --> 00:29:59.620
in collateral consequences not being held
689
00:29:59.620 --> 00:30:00.950
against certain individuals.
690
00:30:00.950 --> 00:30:02.950
There is no exception in that statute
691
00:30:02.950 --> 00:30:05.040
and the CORI statute for collateral consequences
692
00:30:05.040 --> 00:30:06.640
that may affect police officers.
693
00:30:07.560 --> 00:30:10.280
Those individuals records are publicly available
694
00:30:10.280 --> 00:30:12.850
if they were to know who they were.
695
00:30:12.850 --> 00:30:13.820
They could just go to court
696
00:30:13.820 --> 00:30:16.690
and find out what happened to their case.
697
00:30:16.690 --> 00:30:18.710
Yes, Your Honor.
698
00:30:18.710 --> 00:30:23.510
So your view is that that the CORI law protects
699
00:30:23.510 --> 00:30:27.300
not only the aggregation of criminal histories
700
00:30:27.300 --> 00:30:29.960
but it protects all information regarding an individual
701
00:30:29.960 --> 00:30:31.670
regarding a particular case.
702
00:30:31.670 --> 00:30:33.070
Your Honor, we would argue that in this case,
703
00:30:33.070 --> 00:30:35.110
this is in fact an aggregation of criminal history.
704
00:30:35.110 --> 00:30:37.450
There was a historical request for two
705
00:30:37.450 --> 00:30:39.260
and a half years worth of information.
706
00:30:39.260 --> 00:30:41.940
That is not a simple contemporaneous exception
707
00:30:41.940 --> 00:30:44.260
found in the CJIS regulations, that is a request for two
708
00:30:44.260 --> 00:30:46.270
and a half years of past information
709
00:30:46.270 --> 00:30:48.020
regarding alleged criminal conduct.
710
00:30:49.462 --> 00:30:51.290
Well with regard to individual police officer,
711
00:30:51.290 --> 00:30:52.650
it would only be a criminal history if
712
00:30:52.650 --> 00:30:55.740
that particular police officer has a criminal history
713
00:30:55.740 --> 00:30:58.110
while working for the BPD.
714
00:30:58.110 --> 00:30:59.090
Yes, Your Honor, that is correct.
715
00:30:59.090 --> 00:31:00.700
Is that not a matter of public interest
716
00:31:00.700 --> 00:31:01.720
if that's the case?
717
00:31:01.720 --> 00:31:03.150
Your Honor, we're not arguing if this isn't a matter
718
00:31:03.150 --> 00:31:04.370
of public interest, we do believe that--
719
00:31:04.370 --> 00:31:07.470
I mean but essentially,
720
00:31:07.470 --> 00:31:09.470
the interpretation that you're giving to CORI,
721
00:31:09.470 --> 00:31:13.340
which is that the legislature intended to frustrate
722
00:31:13.340 --> 00:31:15.340
and prevent this type of inquiry
723
00:31:17.170 --> 00:31:19.560
even though the Public Records Law was meant
724
00:31:19.560 --> 00:31:22.710
to be expansively interpreted.
725
00:31:22.710 --> 00:31:23.543
That's correct, Your Honor.
726
00:31:23.543 --> 00:31:25.040
Except that there is the exception in A
727
00:31:25.040 --> 00:31:27.990
which deals with any statute that deals with unnecessary
728
00:31:27.990 --> 00:31:30.960
or impliedly restricting access.
729
00:31:30.960 --> 00:31:34.550
And in this case, Your Honor, given the expansive analysis
730
00:31:34.550 --> 00:31:35.810
this court has done in both Pon,
731
00:31:35.810 --> 00:31:38.760
as well as the most recent case, show-cause hearing case,
732
00:31:38.760 --> 00:31:40.210
certainly there there is an understanding
733
00:31:40.210 --> 00:31:42.480
that collateral consequences regardless of what
734
00:31:43.630 --> 00:31:45.870
you're employed as are very real
735
00:31:45.870 --> 00:31:47.070
and will prevent people--
736
00:31:47.070 --> 00:31:49.090
CORI is not the only statute we have.
737
00:31:49.090 --> 00:31:52.610
CORI and the concerns behind CORI
738
00:31:52.610 --> 00:31:57.470
rehabilitation and prospect of bulk purchases
739
00:31:57.470 --> 00:32:00.000
is not the only public policy concern we have.
740
00:32:00.000 --> 00:32:05.000
We have to read CORI and knit into the Public Records Law
741
00:32:06.410 --> 00:32:09.460
and the recognition that open government is important
742
00:32:09.460 --> 00:32:14.020
and isn't that a fair prism to interpret
743
00:32:14.020 --> 00:32:18.840
these provisions saying, well, CORI says x, CORI says y?
744
00:32:18.840 --> 00:32:21.890
Your Honor, I certainly understand the court's question.
745
00:32:21.890 --> 00:32:23.500
I would argue, Your Honor, that there are exemptions
746
00:32:23.500 --> 00:32:26.240
under the Public Records Law that deal with something
747
00:32:26.240 --> 00:32:27.490
that the court is concerned about,
748
00:32:27.490 --> 00:32:28.397
those will be the privacy exemption
749
00:32:28.397 --> 00:32:29.620
and many other exemptions
750
00:32:29.620 --> 00:32:31.537
that are specifically enumerated by the legislature
751
00:32:31.537 --> 00:32:32.870
in the Public Records Law.
752
00:32:32.870 --> 00:32:36.270
However, the statutory exemption in A is very clear
753
00:32:36.270 --> 00:32:39.010
that if is withheld under CORI or withheld or any statute
754
00:32:39.010 --> 00:32:40.510
that protects this information,
755
00:32:40.510 --> 00:32:42.560
it is withheld, it is not to be disclosed.
756
00:32:42.560 --> 00:32:45.440
That is a different analysis than I believe Amici
757
00:32:45.440 --> 00:32:48.700
did in the ACLU brief specifically,
758
00:32:48.700 --> 00:32:51.550
conflating essentially the privacy exemption
759
00:32:51.550 --> 00:32:53.390
with the statutory exemption.
760
00:32:53.390 --> 00:32:56.520
There are different exemptions and BPD's position would be
761
00:32:56.520 --> 00:32:58.610
that if something withholds the information
762
00:32:58.610 --> 00:33:00.660
under the statutory exemption there is no discretion
763
00:33:00.660 --> 00:33:02.800
in that case and it needs to be withheld,
764
00:33:02.800 --> 00:33:05.560
unless the CJIS promulgates a regulation
765
00:33:05.560 --> 00:33:07.440
that gives discretion in that case.
766
00:33:07.440 --> 00:33:10.550
And have you invoked the privacy exemption
767
00:33:10.550 --> 00:33:13.343
or the exemption for investigative information?
768
00:33:14.530 --> 00:33:16.170
Generally, Your Honor, yes, we have.
769
00:33:16.170 --> 00:33:17.003
In this case?
770
00:33:17.003 --> 00:33:19.447
In this case, Your Honor, I do not believe that it was--
771
00:33:20.940 --> 00:33:24.510
This case rises and falls on your CORI interpretation?
772
00:33:24.510 --> 00:33:25.410
Yes, Your Honor.
773
00:33:27.300 --> 00:33:28.625
All right.
774
00:33:28.625 --> 00:33:30.244
Thank you.
Thank you, Your Honor.
775
00:33:30.244 --> 00:33:31.327
Mr. Albano.
776
00:33:37.279 --> 00:33:38.220
Good morning, may I please the court.
777
00:33:38.220 --> 00:33:39.183
John Albano.
778
00:33:41.030 --> 00:33:44.420
I believe analytically the starting point here
779
00:33:44.420 --> 00:33:47.160
should be that the records at issue
780
00:33:47.160 --> 00:33:49.880
are made or received by a public employee.
781
00:33:49.880 --> 00:33:53.100
So they do meet the definition of a public record
782
00:33:53.100 --> 00:33:55.820
under chapter four, section seven.
783
00:33:55.820 --> 00:33:59.220
Which means that there is a presumption
784
00:33:59.220 --> 00:34:01.220
that the records are public
785
00:34:01.220 --> 00:34:05.580
and which means the custodian bears the burden of proving
786
00:34:05.580 --> 00:34:08.400
the applicability of any exemption.
787
00:34:08.400 --> 00:34:11.310
Here we say the Superior Court was correct
788
00:34:11.310 --> 00:34:14.550
in making essentially two related rulings.
789
00:34:14.550 --> 00:34:18.590
First, that CORI does not prohibit
790
00:34:18.590 --> 00:34:22.460
on the pain of criminal prosecution.
791
00:34:22.460 --> 00:34:26.260
The disclosure of booking photographs
792
00:34:26.260 --> 00:34:30.860
or police reports regarding public officials.
793
00:34:30.860 --> 00:34:34.800
And second, as the Superior Court also make clear,
794
00:34:34.800 --> 00:34:39.800
that ruling does not mean that every booking photo
795
00:34:39.890 --> 00:34:44.310
and every police report is immediately available
796
00:34:44.310 --> 00:34:49.050
upon demand because as the Superior Court said,
797
00:34:49.050 --> 00:34:52.630
there may be depending upon the facts of the case
798
00:34:52.630 --> 00:34:55.060
an applicable privacy exemption,
799
00:34:55.060 --> 00:34:59.240
there may be an applicable investigatory exemption
800
00:34:59.240 --> 00:35:01.780
or there may be another statute
801
00:35:01.780 --> 00:35:04.460
that applies the prohibits disclosure
802
00:35:04.460 --> 00:35:09.460
but it is the CORI statute that prohibits disclosure here.
803
00:35:09.680 --> 00:35:12.110
How about for the ordinary person?
804
00:35:12.110 --> 00:35:14.980
It's very tempting to say that the statute means one thing
805
00:35:14.980 --> 00:35:18.200
when you're talking about police misconduct, allegedly
806
00:35:18.200 --> 00:35:19.410
and how its dealt with.
807
00:35:19.410 --> 00:35:20.780
How about the ordinary citizen,
808
00:35:20.780 --> 00:35:25.310
one that just got into a bit of trouble
809
00:35:25.310 --> 00:35:27.563
and we really wanna protect this person?
810
00:35:29.630 --> 00:35:30.463
How do we do that?
811
00:35:30.463 --> 00:35:34.030
The answer is that the privacy exemption
812
00:35:34.030 --> 00:35:36.960
should be analyzed in that instance,
813
00:35:36.960 --> 00:35:40.700
and there are other statutes that may apply, Your Honor
814
00:35:40.700 --> 00:35:41.850
but it's not CORI.
815
00:35:41.850 --> 00:35:45.380
So for example, a case I didn't cite, I should have
816
00:35:45.380 --> 00:35:49.260
I think one of the Amicus cited the Sixth Circuit case,
817
00:35:49.260 --> 00:35:52.630
Detroit Free Press, which gets sold as
818
00:35:52.630 --> 00:35:56.120
Oh, this is a bad case for public disclosure,
819
00:35:56.120 --> 00:35:57.340
booking photographs.
820
00:35:57.340 --> 00:36:00.130
That case is actually very consistent with
821
00:36:00.130 --> 00:36:03.560
Judge Wilkins ruling because what the court said was,
822
00:36:03.560 --> 00:36:06.160
we no longer will adhere to the view
823
00:36:06.160 --> 00:36:11.160
that there is zero privacy interest in a booking photograph.
824
00:36:11.630 --> 00:36:14.260
We're abandoning that view, the Sixth Circuit said
825
00:36:14.260 --> 00:36:15.770
and they acknowledge states
826
00:36:15.770 --> 00:36:17.410
come to different conclusions on this.
827
00:36:17.410 --> 00:36:20.090
But in a case involving,
828
00:36:20.090 --> 00:36:22.550
that case did involve police officers,
829
00:36:22.550 --> 00:36:26.410
we're going to remand it for a balancing under
830
00:36:26.410 --> 00:36:30.000
the federal investigatory exemption,
831
00:36:30.000 --> 00:36:32.180
which includes a privacy component.
832
00:36:32.180 --> 00:36:34.943
So here what Judge Wilkins said was,
833
00:36:36.560 --> 00:36:39.950
obviously, the privacy equation is different
834
00:36:39.950 --> 00:36:43.880
in a private individual than with a public official.
835
00:36:43.880 --> 00:36:46.560
And I wanna be clear, I'm not suggesting
836
00:36:46.560 --> 00:36:50.200
that there are no circumstances in which
837
00:36:50.200 --> 00:36:53.830
a booking photograph of a private person
838
00:36:53.830 --> 00:36:55.430
should be made public.
839
00:36:55.430 --> 00:36:58.210
I am saying that that would be a fact
840
00:36:58.210 --> 00:37:02.200
intensive determination based on the request
841
00:37:02.200 --> 00:37:07.200
in the situation and not at all, a function of the CORI Act.
842
00:37:08.900 --> 00:37:11.580
The Superior Court correctly looked at the statute
843
00:37:11.580 --> 00:37:14.750
and said at the time the court made the ruling
844
00:37:14.750 --> 00:37:18.210
that in order to be CORI, it has to be recorded
845
00:37:18.210 --> 00:37:22.570
as the result of the initiation of criminal proceedings.
846
00:37:22.570 --> 00:37:25.820
And he correctly ruled that if criminal proceedings
847
00:37:25.820 --> 00:37:28.750
have not been initiated, it can't fit
848
00:37:28.750 --> 00:37:30.610
the definition of CORI.
849
00:37:30.610 --> 00:37:33.290
After the amendments, I would suggest
850
00:37:33.290 --> 00:37:36.090
that outcome is even more clear,
851
00:37:36.090 --> 00:37:39.340
because now, the definition reads
852
00:37:39.340 --> 00:37:42.910
that it's restricted to information recorded
853
00:37:42.910 --> 00:37:45.520
in criminal proceedings that are not dismissed
854
00:37:45.520 --> 00:37:47.013
before arraignment.
855
00:37:47.013 --> 00:37:47.863
Mr. Albano, what do you make of the legislative history
856
00:37:47.863 --> 00:37:49.230
that they reference?
857
00:37:49.230 --> 00:37:50.540
Pardon me.
858
00:37:50.540 --> 00:37:51.373
That legislative history, what do you make of
859
00:37:51.373 --> 00:37:52.940
that legislative history saying it really
860
00:37:52.940 --> 00:37:54.143
does not go your way?
861
00:37:55.560 --> 00:37:57.418
I've respectfully disagree.
862
00:37:57.418 --> 00:37:58.850
Well, could you tell me about the legislative history?
863
00:37:58.850 --> 00:38:01.070
Let's leave aside the play meaning of the statute
864
00:38:01.070 --> 00:38:03.490
which Judge Wilkins relied on.
865
00:38:03.490 --> 00:38:06.300
I think the legislative history demonstrates
866
00:38:06.300 --> 00:38:10.470
that after the amendments to CORI,
867
00:38:10.470 --> 00:38:15.470
the prohibitions on public access are limited
868
00:38:15.800 --> 00:38:19.500
to requests for the information
869
00:38:19.500 --> 00:38:21.640
from the department's database.
870
00:38:21.640 --> 00:38:24.040
And if I may, let me explain why,
871
00:38:24.040 --> 00:38:29.040
before those amendments, old section 172 used to say,
872
00:38:31.510 --> 00:38:34.637
just give me a second to find it here, it used to say,
873
00:38:36.250 --> 00:38:39.530
except as otherwise provided criminal offender
874
00:38:39.530 --> 00:38:41.980
record information shall be disseminated,
875
00:38:41.980 --> 00:38:45.620
whether directly or through any intermediary
876
00:38:45.620 --> 00:38:48.800
only to criminal justice agencies,
877
00:38:48.800 --> 00:38:51.320
certain other authorized persons and entities
878
00:38:51.320 --> 00:38:54.260
and if the CORI board at the time said,
879
00:38:54.260 --> 00:38:56.520
okay, you can have it.
880
00:38:56.520 --> 00:39:00.000
Prior to the amendment, the CORI Act also
881
00:39:00.000 --> 00:39:04.203
prohibited the disclosure of alphabetical arrestee,
882
00:39:05.270 --> 00:39:10.270
indexes and alphabetical criminal defended indexes.
883
00:39:12.270 --> 00:39:17.270
Those were all swept away when the statute was amended.
884
00:39:17.900 --> 00:39:22.900
So now I just suggest as a matter of statutory analysis,
885
00:39:22.900 --> 00:39:25.340
we have to look at the statute and say,
886
00:39:25.340 --> 00:39:27.070
okay, we've got a definition of CORI,
887
00:39:27.070 --> 00:39:28.850
whatever that definition may be.
888
00:39:28.850 --> 00:39:32.930
I'll take any definition one comes up with today.
889
00:39:32.930 --> 00:39:36.540
We still have to look elsewhere in the statute to say,
890
00:39:36.540 --> 00:39:41.270
okay, where does it say, thou shalt not disclose
891
00:39:42.490 --> 00:39:46.460
this particular criminal offender record information?
892
00:39:46.460 --> 00:39:48.447
And when you look at the current 172,
893
00:39:52.228 --> 00:39:57.228
it is limited to request to the department
894
00:39:58.180 --> 00:40:01.280
and it lists 25 persons and entities
895
00:40:01.280 --> 00:40:05.250
that can get access by requesting the department.
896
00:40:05.250 --> 00:40:07.680
Now let's look at the at the surrounding
897
00:40:08.610 --> 00:40:10.110
sections of the statute.
898
00:40:10.110 --> 00:40:14.187
So if you look at 172(b), 172(c) and 172(e) to 172(l),
899
00:40:19.010 --> 00:40:22.180
all of those sections, all of them,
900
00:40:22.180 --> 00:40:26.633
have the language notwithstanding section 172.
901
00:40:27.800 --> 00:40:29.200
We're gonna let someone else
902
00:40:30.510 --> 00:40:35.510
have access to the CORI through the department.
903
00:40:36.750 --> 00:40:39.510
That's the way the statute works now.
904
00:40:39.510 --> 00:40:44.510
171(a) makes it clear that CORI can be obtained
905
00:40:46.160 --> 00:40:51.123
from other sources because it expressly provides a rule
906
00:40:53.370 --> 00:40:58.370
on when the holder of CORI has to provide it to the subject
907
00:40:58.900 --> 00:41:02.440
and says that rule applies whether you obtain the CORI
908
00:41:02.440 --> 00:41:05.650
from the department or any other source.
909
00:41:05.650 --> 00:41:07.432
Can I ask you?
910
00:41:07.432 --> 00:41:11.120
We had some questions for your sister about whether or not
911
00:41:11.120 --> 00:41:13.250
it was a CORI violation for the police departments
912
00:41:13.250 --> 00:41:15.130
to be giving out booking photos and so forth
913
00:41:15.130 --> 00:41:18.093
of individuals who are just sort of ordinary citizens.
914
00:41:19.480 --> 00:41:20.313
What is your position on that?
915
00:41:20.313 --> 00:41:21.570
Is that a CORI violation?
916
00:41:21.570 --> 00:41:23.920
Well, of course, I say it's not a CORI violation
917
00:41:23.920 --> 00:41:26.880
because I'd say CORI does not prohibit
918
00:41:26.880 --> 00:41:30.073
the disclosure of any of this information.
919
00:41:31.010 --> 00:41:33.830
As I understand the--
920
00:41:33.830 --> 00:41:35.390
It's a Public Records Act violation
921
00:41:35.390 --> 00:41:38.620
or it's not an exemption as a Public Records Act?
922
00:41:38.620 --> 00:41:39.453
Right.
923
00:41:39.453 --> 00:41:43.940
It would not be a violation of CORI to disclose
924
00:41:45.250 --> 00:41:47.020
those records at any time.
925
00:41:47.020 --> 00:41:50.260
If the Boston Globe stands in the same position
926
00:41:50.260 --> 00:41:51.863
as any other individual.
927
00:41:53.570 --> 00:41:56.540
So if I am a landlord in Boston
928
00:41:56.540 --> 00:42:00.920
and somebody comes to me to seek to rent an apartment
929
00:42:00.920 --> 00:42:02.960
and I want more information
930
00:42:02.960 --> 00:42:05.530
than I could get from the CJIS,
931
00:42:05.530 --> 00:42:08.930
can I make a request for this particular potential tenant
932
00:42:08.930 --> 00:42:12.360
to the BPD and say, give me all information
933
00:42:12.360 --> 00:42:14.600
regarding this particular tenant
934
00:42:14.600 --> 00:42:16.300
that's in your possession?
935
00:42:16.300 --> 00:42:19.200
One could make that request whether it was granted
936
00:42:19.200 --> 00:42:22.180
or denied should not turn on the criminal offender
937
00:42:22.180 --> 00:42:27.180
record information act, because that act, which by the way,
938
00:42:27.540 --> 00:42:32.540
imposes criminal penalties, simply does not prohibit
939
00:42:32.990 --> 00:42:35.720
the disclosure of that information.
940
00:42:35.720 --> 00:42:39.910
Isn't there the same risk of the end run around CORI
941
00:42:39.910 --> 00:42:43.163
that we would be concerned about in terms of by implication,
942
00:42:44.210 --> 00:42:46.500
there are certainly limits on what that landlord could get
943
00:42:46.500 --> 00:42:49.270
if the landlord went to the CJIS, correct?
944
00:42:49.270 --> 00:42:50.103
Yes.
945
00:42:51.680 --> 00:42:54.890
But if the landlord went to the Boston Police Department,
946
00:42:54.890 --> 00:42:57.830
he or she could get far more, could they not?
947
00:42:57.830 --> 00:43:02.340
Well, what let's think about what it is they could get
948
00:43:02.340 --> 00:43:04.663
from the Boston Police Department.
949
00:43:06.597 --> 00:43:09.520
If they had a name and they asked for a booking photo.
950
00:43:09.520 --> 00:43:13.050
They had a name and they asked for a police report
951
00:43:13.050 --> 00:43:16.490
the Boston Police Department is perfectly capable of saying
952
00:43:18.030 --> 00:43:22.520
that's exempt under exemption C,
953
00:43:22.520 --> 00:43:24.400
under the privacy exemption.
954
00:43:24.400 --> 00:43:27.040
If the investigation was ongoing,
955
00:43:27.040 --> 00:43:30.450
they could invoke exemption F.
956
00:43:30.450 --> 00:43:34.360
I am here to say they should not be invoking the CORI act
957
00:43:34.360 --> 00:43:38.823
because one, I cannot find in that statute,
958
00:43:40.986 --> 00:43:41.857
as it currently exists,
959
00:43:42.987 --> 00:43:44.520
the clause that says
960
00:43:50.060 --> 00:43:53.300
police departments, thou shalt not release police reports
961
00:43:53.300 --> 00:43:54.463
or booking photos.
962
00:43:55.626 --> 00:43:57.180
I say it's not in there.
963
00:43:57.180 --> 00:43:58.970
Can I go a little bit further?
964
00:43:58.970 --> 00:44:03.970
I think the best argument that the Commonwealth has
965
00:44:05.450 --> 00:44:10.450
for whether there is such restrictive language in CORI
966
00:44:11.850 --> 00:44:16.430
is in section 178, which is the section
967
00:44:16.430 --> 00:44:19.863
that imposes criminal penalties,
968
00:44:21.140 --> 00:44:22.790
so I call that to your attention.
969
00:44:24.119 --> 00:44:26.597
With the looks at 178, it doesn't get you there.
970
00:44:26.597 --> 00:44:30.970
But the public records speaks not only about specifically
971
00:44:30.970 --> 00:44:33.100
exempt from disclosure by statute
972
00:44:33.100 --> 00:44:35.523
or also by necessary implication.
973
00:44:37.470 --> 00:44:39.900
And I mean, we in the court system struggled with this
974
00:44:39.900 --> 00:44:42.400
in determining what's gonna be available
975
00:44:42.400 --> 00:44:43.560
on our public portal
976
00:44:43.560 --> 00:44:46.590
that we were concerned that if he could do it by name,
977
00:44:46.590 --> 00:44:49.100
you could identify John Smith
978
00:44:49.100 --> 00:44:52.410
and identify all of the cases that John Smith had
979
00:44:52.410 --> 00:44:54.580
and that may give you far more than you could get
980
00:44:54.580 --> 00:44:55.820
if you did a CORI request.
981
00:44:55.820 --> 00:44:58.550
You may have me entitled to do a CORI request.
982
00:44:58.550 --> 00:45:01.370
Do we have to do a comparable analysis here
983
00:45:01.370 --> 00:45:04.223
with regard to BPD records or state police records?
984
00:45:05.090 --> 00:45:07.960
Well, I certainly agree that the correct analysis is
985
00:45:07.960 --> 00:45:11.610
is there anything in that statute that either expressly
986
00:45:11.610 --> 00:45:15.613
or by necessary implication prohibits disclosure?
987
00:45:18.260 --> 00:45:21.837
I say when one examines the statute, there is not.
988
00:45:22.730 --> 00:45:24.240
It would mean, for example,
989
00:45:24.240 --> 00:45:26.530
it's really a penumbra argument, right?
990
00:45:26.530 --> 00:45:31.040
It's really saying, well, if it's been seven years
991
00:45:31.040 --> 00:45:33.720
or three years since you were discharged,
992
00:45:33.720 --> 00:45:36.510
the legislature said you can seal your records
993
00:45:36.510 --> 00:45:38.200
or maybe you can even expunge them
994
00:45:38.200 --> 00:45:41.000
and so they have a concern about that.
995
00:45:41.000 --> 00:45:42.450
And they have a concern over here
996
00:45:42.450 --> 00:45:44.410
that they've expressed in another statute.
997
00:45:44.410 --> 00:45:48.910
They never say that the Criminal Offender Record
998
00:45:48.910 --> 00:45:53.520
Information Act prohibits disclosure of this information
999
00:45:53.520 --> 00:45:57.230
but we find it in the penumbra.
1000
00:45:57.230 --> 00:45:59.880
That I think would be wrong for two reasons.
1001
00:45:59.880 --> 00:46:03.650
First of all, it's a criminal statute.
1002
00:46:03.650 --> 00:46:07.440
People can be prosecuted for violations of it.
1003
00:46:07.440 --> 00:46:11.150
The prohibition should not be found in a penumbra.
1004
00:46:11.150 --> 00:46:15.690
Secondly, when you think about what kind
1005
00:46:15.690 --> 00:46:20.690
of additional information would fall within the statute
1006
00:46:22.692 --> 00:46:25.010
the disclosure of which would be criminalized,
1007
00:46:25.010 --> 00:46:30.010
one would have to consider things like the press releases,
1008
00:46:30.110 --> 00:46:34.510
that district attorneys properly release
1009
00:46:34.510 --> 00:46:37.960
upon an indictment or upon a conviction.
1010
00:46:37.960 --> 00:46:41.593
That's criminal offender record information.
1011
00:46:42.593 --> 00:46:45.360
Let me go back to your earlier argument
1012
00:46:45.360 --> 00:46:46.310
that you just made.
1013
00:46:47.580 --> 00:46:51.960
So what if the context isn't a criminal prosecution
1014
00:46:51.960 --> 00:46:54.420
rather a determination of whether or not
1015
00:46:54.420 --> 00:46:57.860
to turn over booking photos to the Globe.
1016
00:46:57.860 --> 00:47:02.833
Be nonetheless, interpret CORI utilizing the rule of lenity
1017
00:47:04.100 --> 00:47:06.423
because that could be a criminal prosecution.
1018
00:47:08.650 --> 00:47:11.250
As I understand the Commonwealth's position
1019
00:47:11.250 --> 00:47:16.250
it is that one violates CORI by releasing a booking photo,
1020
00:47:16.880 --> 00:47:21.880
which would mean that disclosure is a crime
1021
00:47:22.700 --> 00:47:27.700
and I say that is one reason why, in the absence of any
1022
00:47:29.660 --> 00:47:33.410
I say any language but certainly any explicit language
1023
00:47:33.410 --> 00:47:37.160
saying one cannot disclose that information,
1024
00:47:37.160 --> 00:47:40.700
the statute should not be interpreted that way.
1025
00:47:40.700 --> 00:47:42.210
Again, I think the Superior Court
1026
00:47:42.210 --> 00:47:43.740
took the most direct route.
1027
00:47:43.740 --> 00:47:46.470
The Superior Court said I'm looking at the definition.
1028
00:47:46.470 --> 00:47:51.260
You need a criminal proceeding to have been initiated.
1029
00:47:51.260 --> 00:47:53.700
They have a different view of that language
1030
00:47:53.700 --> 00:47:58.200
because what was deleted as far as the initiation
1031
00:47:58.200 --> 00:48:01.110
of criminal proceedings, the whole point was
1032
00:48:01.110 --> 00:48:06.110
to expand protection and your interpretation,
1033
00:48:06.270 --> 00:48:07.720
limits to protection of CORI.
1034
00:48:07.720 --> 00:48:09.523
That's the argument we heard.
1035
00:48:12.234 --> 00:48:14.320
I think my interpretation says with respect
1036
00:48:14.320 --> 00:48:17.580
to these requests, it remains the same
1037
00:48:17.580 --> 00:48:20.920
but if I could go further, I think the amendment
1038
00:48:21.910 --> 00:48:26.910
underscores that the current language and purpose
1039
00:48:29.310 --> 00:48:34.310
of the CORI Act is limited to the department's database.
1040
00:48:34.470 --> 00:48:39.197
That's why it made sense to use the language that they use,
1041
00:48:41.240 --> 00:48:43.640
recorded in criminal proceedings
1042
00:48:43.640 --> 00:48:46.320
that are not dismissed before arraignment.
1043
00:48:46.320 --> 00:48:50.200
The focus is what is going into that database
1044
00:48:50.200 --> 00:48:52.330
and there's many reasons for that.
1045
00:48:52.330 --> 00:48:54.480
There's policy reasons, they're compilations,
1046
00:48:54.480 --> 00:48:56.880
it's a lot of different types of information
1047
00:48:56.880 --> 00:48:58.320
then is that issue here?
1048
00:48:58.320 --> 00:49:03.080
But it's also because that is where the prohibitions
1049
00:49:03.080 --> 00:49:06.640
and only where the prohibitions on disclosure
1050
00:49:06.640 --> 00:49:11.390
are found under the current version of the CORI Act.
1051
00:49:11.390 --> 00:49:14.060
So, in your interpretation,
1052
00:49:14.060 --> 00:49:17.190
if an individual is charged with
1053
00:49:17.190 --> 00:49:20.050
say possession of marijuana with intent to distribute
1054
00:49:20.050 --> 00:49:24.030
and that case is dismissed before arraignment,
1055
00:49:24.030 --> 00:49:26.760
so therefore would not be part of CORI
1056
00:49:26.760 --> 00:49:29.980
and a criminal history check of that person would not reveal
1057
00:49:29.980 --> 00:49:34.060
that charge, you're saying that would still be
1058
00:49:34.060 --> 00:49:36.980
a public record if they went to the police department itself
1059
00:49:36.980 --> 00:49:40.623
and said, give me all such records of arrest?
1060
00:49:42.050 --> 00:49:44.200
I'm definitely saying CORI does,
1061
00:49:44.200 --> 00:49:47.030
would not prohibit the disclosure.
1062
00:49:47.030 --> 00:49:52.030
I also believe that the privacy analysis under exemption C
1063
00:49:53.210 --> 00:49:58.210
would be highly relevant to the answer
1064
00:49:59.250 --> 00:50:03.810
and if I may, the same analysis has to apply.
1065
00:50:03.810 --> 00:50:06.800
Let's say they're dismissed before arraignment,
1066
00:50:06.800 --> 00:50:10.720
under this hypothetical but there has been
1067
00:50:10.720 --> 00:50:13.783
a public disclosure of the arrest.
1068
00:50:15.140 --> 00:50:16.950
It was reported in the newspaper,
1069
00:50:16.950 --> 00:50:18.833
maybe there's even a press release.
1070
00:50:20.800 --> 00:50:25.440
If the Commonwealth is right, then that press release
1071
00:50:25.440 --> 00:50:28.540
can never be spoken of again
1072
00:50:28.540 --> 00:50:33.393
because that is criminal record information.
1073
00:50:34.500 --> 00:50:37.470
The case did not go to arraignment
1074
00:50:37.470 --> 00:50:41.580
and therefore it is a crime to disclose
1075
00:50:41.580 --> 00:50:44.973
or discuss the contents of that press release.
1076
00:50:45.930 --> 00:50:49.890
I'd suggest the statute cannot reasonably be read that way.
1077
00:50:49.890 --> 00:50:52.450
That's not what the statute's about,
1078
00:50:52.450 --> 00:50:54.423
at least as currently constituted.
1079
00:50:57.560 --> 00:50:59.933
Okay, thank you.
Thank you, Your Honor.