-: SJC-13467.
Eric Mack, the Office of the District Attorney
of the Bristol District.
-: Okay, Attorney Lee.
-: Good morning. May it please the court.
Mary Lee, Assistant District Attorney
from the Bristol District.
This is an appeal by the Office of the District Attorney
in regards to public records request,
which resulted in a lawsuit, a civil lawsuit,
and then a denial, I'm sorry,
an allowance of motions for summary judgment
for the plaintiff,
and a denial of the motion for summary judgment
for the defendant, District Attorney.
This case involves just a tragic background
of a fatal police shooting on November 22nd, 2021.
And I know there are quite a few amicus briefs
and they're focusing on the factual circumstances
of this case.
But this is all about the Public Records Law
and its exemptions and withholdings under the statute.
There are 22 exemptions under the Public Records Law.
The District Attorney's office has done its best to navigate
that role of providing substantial documents.
There are over 380 pages of redacted reports and documents,
over 200 photographs, nine videos, six audios,
and those were placed on a website
so they'd be available to the public
after the request in this case
to be as transparent and open as possible.
And it's very understandable that the requester,
who is the decedent's brother,
wants every scrap of paper,
every piece of document that they can get.
But the Public Records Law,
well, it says all documents has these exemptions.
-: But there's a exception.
There's a new exception.
And the new exception has to do
with law enforcement misconduct investigations.
And what are the implications of that
for the balancing that goes on with the privacy exemption?
It seems like it would eliminate
the balancing of the privacy exemption
with the law enforcement misconduct exception.
-: So, that exception came into play
in the 2020 amendment to the statute when Post was created.
I assume everybody has read the brief
and knows what Post is.
So, that came about in 2020.
So that misconduct investigation exception
is to the privacy exemption.
So, our exemptions were not entirely
under the privacy exemption,
though some of them were.
-: I know, but on the privacy exemption, this,
am I right that we don't do the balancing
on the privacy exemption now that we have
this law enforcement misconduct investigation exception
to the exemption.
-: So, the exception says that records related
to a law enforcement misconduct investigation
are an exception to the privacy exemption
from the Public Records Law.
Wendlandt: And so they get disclosed.
-: So, I'm sorry?
Wendlandt: And so they get disclosed.
-: So, they get disclosed. Yes.
So, one of the big questions in this case
is whether this matter constitutes
a law enforcement misconduct investigation.
So that- -: How does it not?
-: So, this is a death investigation
under chapter 38, section four,
there has been no accusation
of misconduct against the officers.
There has been no finding of misconduct by the officers.
-: What is the purpose of the death investigation?
-: It's to determine whether there was
a criminal action and so-
-: So, misconduct.
-: So, I would suggest that we are not
the employer of the police.
We are not the conducting an internal affairs investigation
and we are determining whether a crime has been committed,
but no allegation has been made against the officers
and no final-
-: But that's the end. Sorry.
-: Isn't this exactly what the statutory change is for?
So that we can have transparency,
try to understand what happened?
So that, a lot of public good,
including for the family,
but also for confidence in our system of justice
and in law enforcement investigation.
-: Right, and the District Attorney's Office
is trying to be transparent.
We've released a large number of the records.
The privacy exemption that we're currently citing
and fighting in this appeal
is regarding the names of the officers.
The reports of the conduct have been released.
The amicus briefs and the plaintiff's briefs show
that what our discovery,
our disclosure of these records has done,
has given the public just that.
The opportunity to look at these records
and make a determination whether the district attorney
has acted correctly,
whether the police officers have acted correctly,
whether the public agrees or disagrees
with how the public officials have acted in this case.
The question of the names is where we fall
to the privacy exemption.
So I would-
-: Why would you, though?
I mean, I guess I'm struggling of the rationale.
You have public employees in the discharge
of their public obligations and job duties,
are involved in an underlying case
where there's a concern as to whether or not
it was lawful or what have you.
Why would that be protected?
Because it's not an apples to apples analog,
but assume for the sake of argument,
I'm a motorist and I feel like a police officer
hasn't done what they were supposed to do, and I say,
"Give me your badge number, because you're doing your job,
and I think you're not doing it right,
and I have a right to know
who you are in the discharge of your duties."
Why is this different?
-: Well, I say this is different
for a couple of different reasons.
The first one is we asked this court to take this case
so that we could get some judicial interpretation
of what law enforcement misconduct investigation means.
Because if we give out those names and we are wrong,
they are out there forever.
And you look at the 2020 legislation,
and Post has its authority to give out or withhold names
and conduct confidential investigations
prior to the release of those names,
and then can determine,
for the safety and wellbeing of the officers,
whether those names should be released or not.
Public Records Law has a 10 business day deadline.
If the holder of the records releases those names,
then Post never gets to make that analysis.
The Post was created at the same time
as this exemption was put in.
So this is putting us between a rock and a hard place
on the records.
We released the records of the conduct
so everybody could see what the conduct was,
and we thought the best thing to do
was to withhold the names.
Then, Post can make its determination later.
If we let the cat out of the bag now,
those names are out there forever.
-: But we have a letter from Post
that points out that the 2020 act
doesn't compel the Commission to gather
all records related to the investigation.
And their position seems to recognize
that while it's a great step, it's not a panacea,
and it doesn't eviscerate the Public Records Law.
-: I guess my concern, well,
we obviously didn't have amicus Post
until after the filing of our briefs,
the amicus letter from Post.
But what does that legislation about Post mean then
if the names are gonna get released before Post
ever has any kind of weighing in?
They're supposed to be the ones,
like even if you don't find that this is-
Georges: Does one inform the other?
-: I'm sorry? -: Does one inform the other?
Does the public's right to know,
is that informed by what Post does?
Or should it be?
-: I think that's part of the balancing
under subsection C for privacy,
because we don't just release police officers names
all the time.
Under Worcester Telegram,
this court declined to say they always get released under-
(justices speaking over each other)
-: Yeah, I mean I thought we don't do balancing
with the privacy if it's a law enforcement
investigation of misconduct?
-: So, that's part of the newness of the statute.
Where do we fall?
Because public employees don't lose all their privacy rights
and Post has this authority to withhold the names.
And yet you have this contrary provision that says,
except for law enforcement misconduct investigations.
We don't take the view
that this is a misconduct investigation.
If this court disagrees with us,
then we go to, what does this subsection of 26 C,
the exception for law enforcement misconduct investigations,
mean in relation to Post's ability to protect officers,
as this court had tried to do in Worcester
and more specifically Antell,
which is in my reply brief,
about what do we do when an officer's safety is involved?
We can withhold the names. Post can do that.
If we're giving out the names in 10 business days,
then that review by Post can never happen
and one part of the statute
would seem to cancel out the other,
and no part of the statute can be superfluous.
-: So you're saying that an investigation into the death
to determine whether a crime has been committed doesn't fall
within the law enforcement misconduct investigation
plain language because otherwise Post is meaningless?
-: So, that's actually two parts of my argument.
I do agree with the first part of the argument where I said,
this isn't a law enforcement misconduct investigation
because this is a death investigation.
We're not the employer,
this is not an internal affairs matter.
We have not made an allegation.
No one has made an allegation against the officers
and there's been no finding of misconduct by the officers.
The second part is that if this is
a law enforcement misconduct investigation,
is it enough to give out the records
and protect the names of the officers, as was done previous,
prior to the 2020 amendment in Antell?
And let Post decide whether they go out or not,
whether they're disclosed or not,
or does that provision,
when considered in conjunction with Post,
which was made at the same time by the legislature,
let us disclose all the conduct
and keep back the officers names?
-: I guess that's why you still go back
to the original point,
because you talked about the statutory construction
and that's not what the legislature said
when they created that exception to the privacy exception.
They didn't say, but go see Post.
So, I guess, is it,
not that you're saying this,
but is it the withholding of this, saying,
we have no dog in the fight
and hey, yes, JC tell us where to go?
-: We have a dog in the fight
in that we want to make sure we get it right
and releasing the names before we're sure we got it right
seemed like we were completely undercutting Post.
Wendlandt: So, you are looking for guidance
from this court?
-: Yes.
Yeah, we wanna know what the right thing to do is,
because as I said,
it's like being in between a rock and a hard place.
You are required to give out the records,
but you're required to protect privacy.
They want the names,
but some of the case law permits the protection
of the names of police officers,
and the Post legislation seems to protect
the names of the officers,
and no part of the statute can be rendered superfluous.
So what am I as a record access officer
supposed to do in those circumstances
rather than disregard all privacy rights
and disregard the authority of Post
that was given to them by the legislature?
We released all the conduct of the misconduct,
if you call it a misconduct, investigation,
or as we call it a death investigation.
We released all the records of that conduct
and simply withheld the names.
And that is how we think the court should be reading this.
But I admit it is a difficult question
that I'm presenting to you,
and that's why we asked for direct appellate review.
-: You have the special assistant AG's view of it.
-: I understand. I respectfully disagree.
They have been given authority from Post
and they're saying they don't have that authority,
I'm sorry, Post has been given that authority
by the legislature,
and it says right in the statute,
they're supposed to consider the welfare
and safety of the officers before they release those names.
So I don't, I respectfully disagree with my brother,
who's the special assistant AG
in the Attorney General's Office.
Understanding this is a very difficult amendment
to reconcile with privacy,
with protection of police officers,
and with the Post legislation, generally.
I would like to note that the motion judge's decision,
part of the reason we appealed
is that the motion judge's decision contains errors
that we simply could not let stand
because they will create bad law as persuasive authority.
My brother, the plaintiff,
has agreed that the judge
should not have considered the relationship
between the requester, the plaintiff in this case,
who is the brother of the decedent.
The balancing on release of records
and withholding of records,
is for the public interest in that.
And also he did not talk about the investigatory exception,
which I see I'm running out of time,
but this I think is the most important part
of this case to me.
I will rely on my brief for the other parts.
The recorded interviews of the police officers,
those were under the investigatory exemption.
The Superior Court judge did not even consider
the investigatory exemption.
If we lose recorded interviews
because people don't want their statements
and their video of themselves to be placed online
to be mocked, to be modified, to be put to music,
or whatever else, or part of a podcast.
One of the amicus' is an internet journalist in this case.
If we lose those investigations,
I'm sorry, lose those portions of our investigations
with the recorded interviews of the police
because they don't want it to be public,
they don't want their kids to see it,
they don't want their parents to see it,
then we lose an important investigatory tool
that this court has said is necessary in (indistinct).
And if we do go to prosecution,
we end up with an adverse instruction on it,
even if someone has declined to be recorded.
So I would ask that the recorded interviews
be approved as being withheld.
I would rely on my brief
for the work product exemptions in the in-camera appendix,
as well as the privacy exemptions for individuals
of the photographs in the in-camera appendix.
I think the photographs speak for themselves.
If there are any other questions, I am happy to answer them.
-: I guess I'm just trying to figure out,
why this wouldn't be considered misconduct,
aside from the fact that you're not
the officer's employer, just generally.
-: Because there's a fatal shooting. So.
-: Yes, so why wouldn't that be under the umbrella of police-
-: As this court's murder instructions show,
there are many reasons why a homicide would be justified.
Self-defense, defense of another, accident.
And none of those things would necessarily involve
the misconduct of the person committing the act.
-: Law enforcement misconduct investigations.
I mean, you've got the word investigations in there.
It's not limited by (mumbles).
-: Right.
And I think one of the amicus pointed out
that the legislature didn't say finding of misconduct.
And I acknowledge that.
But here, unlike the Boston Globe Media v. CJIS
on the booking photos case,
you don't have an arrest of a public official
with the booking and the photograph being taken,
which stands in what I would suggest is the accusation.
What we have here is an incident that happened,
our office investigates it,
as we're required to under statute,
to determine if any criminal activity has happened
without accusation against the officers,
and without a finding against the officers.
And so we would suggest
that's not a misconduct investigation.
I acknowledge the answers that my brother,
who's an Assistant District Attorney,
gave to the Superior Court,
which is noted in one of the amicus briefs,
that of course we were checking to see
if there was misconduct.
Of course, we were checking to see
if there was criminal activity.
We have to determine if a crime has been committed.
But, so I would suggest in this case,
that's for this court to decide
if the legislature meant internal affairs investigations
by the employers,
or do they mean every time the DA's office
is looking for Brady records,
or looking for exonerations of officers,
or conducting an investigation
and determine no crime has been committed.
What does this language mean?
If this isn't a misconduct investigation,
how do we reconcile that with Post's ability
to withhold these names,
if these names are being given out at such a quick rate?
I would also acknowledge that our office,
because of the voluminous records,
did not respond within the 10 business days
that I'm talking about here.
But with the clarity of this court,
we would hopefully be able to respond more quickly.
The first denial was because
there was an investigation pending,
and then when we completed the records,
I think it was between February and April of that year
where we were completing the records
because of the man hours required for the redactions.
-: Alright. -: Thank you.
-: Thank you very much.
Okay, Attorney Friedman.
-: Thank you, Madame Chief Justice and members of the court.
I'm Howard Friedman here representing Eric Mack.
And of course,
we agreed on how you interpret a statute.
You look at the plain language and the purpose,
and it seems clear to us
that it says the sub-clause shall not apply to records
related to a law enforcement misconduct investigation.
That's fairly broad.
And I can answer Chief Justice Budd's question,
well, what does it mean?
And I tried to figure that out.
And my view is that it's saying
that the privacy exemption does not apply
to a public records request that seeks records
related to an investigation to determine
if a person or agency who enforces the law
has committed misconduct by violating
the Constitution of the Commonwealth,
or the United States or the laws
of the Commonwealth of the United States,
or standards, policies, procedures, rules,
or regulations of a police department,
or other law enforcement agency.
And this doesn't really apply only to police,
it applies to law enforcement agencies.
And that's broad.
A District Attorney's Office could be considered
a law enforcement agency.
It certainly doesn't require
that the agency employ the police officer.
It's focused on an investigation.
And I suppose my sister has agreed to this,
we cited in the brief,
at the argument on the motion for summary judgment,
when the judge asked the assistant district attorney,
he said, you have to be at least anticipating
that you're thinking about whether there's misconduct done
in the performance of one's duties.
He said, of course.
And whether there was a crime committed,
he said, of course.
We're conducting a criminal investigation.
Whether we decide in this case there's a homicide,
whether there was reasonable or excessive force.
Certainly if a police officer used unreasonable force
in causing the death of an individual,
that would be law enforcement misconduct.
When you conduct an investigation,
you don't start necessarily with an accusation.
Investigation should be a search for truth.
And you should start with a plain slate
and be looking to see where the facts will lead.
That's what we're talking about here, an investigation.
-: So, police do things that are really sensitive.
They do investigations that are really sensitive.
They're part of units that, sometimes,
that you need a certain level of anonymity.
When you have the underlying facts,
but all you are not given is the specifics
of who the actors are,
isn't that enough?
Doesn't that bound,
I understand Justice Lowy made this point very clearly,
that the privacy exemption,
we're not doing the balancing anymore
that we used to now with this exception.
But there was still sensitive information
with respect to who the folks are
when you're talking about specific officers.
And if you have the underlying facts
of what they are alleged to have done,
why isn't that enough?
Why isn't that a reasonable interpretation
of not only the privacy exception,
but then what was added in 2020?
-: Well, the 2020 exception to the exemption
only applies to privacy.
There are, as my sister pointed out,
22 other exceptions, exemptions.
So that may well, for example,
if it involves an informant,
that might not be provided.
But if you look in the record
and you look at the reports that we were provided,
they look like Swiss cheese.
Blank said to blank, blank.
And with that, you can't really tell what happened.
We have some information about what happened.
So I would say in your situation it would require
a different exemption.
The privacy exemption no longer applies.
The rest of the Public Records Law exemptions would apply.
-: Why don't the video tapes fall
within the investigatory exemption.
-: When you say the videotapes, of the law officers?
-: Sure.
-: Well, I think this is a case, perhaps like,
the Boston Globe v. The Police Commissioner of Boston,
which was the Stewart case,
where they'd already released some information.
We have information.
What they provided us are summaries
of the police officer's statements,
and the summaries state right on them,
this is only a summary.
If you wanna know the full story,
you've gotta listen to the recordings.
And so without the recordings, we don't know the full story.
And there are questions that we have about what happened.
There's questions here-
-: But when you were talking about the privacy exemption,
you went to the words of the exemption.
Now, sticking to the words of the exemption
in the investigatory exemption,
why do you construe those words not to protect
the video tapes? -: Well,
the investigatory exemption, as you know,
is not all inclusive.
This court has- -: It's not what?
-: It's not inclusive.
This court has said there are exceptions
to the investigatory exemption.
And one of them was actually
Boston Globe v. the Boston Police Commissioner.
Here, what they have said,
the reason that these are subject
to the investigatory exemption
is because the police officers would be embarrassed
and police officers would refuse to be recorded
if these documents were provided.
-: But it applies to any witness in a homicide, right?
It would apply to any witness in a homicide.
-: Well.
-: Right, these happen to be police officers.
So, if there's a homicide investigation
and they interview someone who's in the house next door,
they interview the cab driver, et cetera.
The investigatory purpose of this, you know,
the effective law enforcement,
isn't that the government's gonna have to be compelled
to give those tapes up,
those interview tapes up to the media,
and to be broadcast online.
-: Well, it would be a homicide investigation
only where there's law enforcement misconduct,
where a police officer has been now charged with homicide.
And certainly, if there was a different situation,
if there was a criminal charge,
I think they would've a good argument to say,
you have to wait until the criminal case is over.
But that doesn't mean you will never get that information.
That's my understanding of how that would work.
-: So, because there's no criminal charge,
you get the information?
-: Because there's no criminal charge,
they've given us some of the information-
-: But that's what, sorry,
I started to stop you in answering my own question.
But they've given you some of the information.
Hasn't that balance of what's in the public interest
then been achieved by giving you summaries?
Or why is that not enough?
-: Because the summary says it is not complete.
It says if you want the full story, you have to see this.
And remember, their argument is really
that police officers won't come forward if they're recorded.
The consent decree between
the Department of Justice and Springfield
requires all internal affairs interviews be recorded.
That is the standard in the industry.
As a lawyer, I've received numerous interviews
of police officers by internal affairs.
The idea that police officers will be afraid
that their face will be on some internet-
Gaziano: But that's different.
You're under a protective order though, right?
-: Excuse me?
-: When they give them to you on a 1983 case
the IA tape recordings, right?
You're not free to give them to the Globe.
-: When I get them in public records requests, I am free.
-: Oh, in public records. -: I do get them.
-: I was asking about,
I assumed you were talking about discovery.
-: No, I do both.
And really, and that's an interesting point,
because one reason this is helpful
is if someone is thinking of bringing a lawsuit
against the police officers and you don't get information,
a plaintiff's lawyer is more likely to want to bring suit.
And if you provide the information, it may be,
and I certainly have had these cases.
We got internal affairs files and we looked at it and said,
well, it sounded like a case when the client talked to us.
But this is not a case.
And that is helpful, of course, to cities and towns
because then they don't get sued.
-: Isn't the question here,
as it relates to the investigatory exemption,
isn't the issue here whether you're actually
going to be able,
not you are going to be able to get the videos,
but the world's going to be able to get the videos
when you already have the summaries
and how that factors into the exemption?
-: Well, that's true of all public records,
that once they're released-
-: But there's implications.
I mean, you know,
there's implications here that might impact investigations
and the quality of investigations
when the information is already there.
-: I'm not sure I understand how it would affect
the quality of information.
I know that there's been talking in cases about,
there's secret investigative techniques,
who, what, when, where, how,
why is usually the questions that are asked.
I've seen, and probably many of you have-
Gaziano: If if it's a confidential witness
that's clearly covered.
We're talking about everyday witnesses, essentially.
-: There may be instances where there would be
some other exemption and it would not be provided.
But the purpose is to, you know, provide,
we assume that records are public.
And here where they've released some of the documents
and not some of the, in a summary,
and not the rest of it,
there are serious questions.
And you know, this is a case where not only
was Mr. Harden shot in two minutes,
but afterwards the police officer says
to another officer, will I be fired?
Well, what did those officers
actually say when they were questioned?
And how were they questioned?
Were they questioned by being asked leading questions
to try to show that what they did was somehow justified?
And as you know, in the briefs, there are other issues-
Lowy: Aren't those the answers from the summaries?
-: No, I mean.
We cannot tell everything that was said during the summary.
We know this much.
We think that a public records request tour
should know more.
Excuse me.
Gaziano: Do you know whether a transcript exists?
-: There is no transcript.
And of course, in a public records request-
Gaziano: They don't have to create it.
-: They don't have to create a transcript.
-: Right, that's why I asked where that was part of the...
-: In fact, recently,
when I've done public records requests in Boston,
they used to provide a transcript.
Now they give me an audio interview
and we pay for the transcript.
So, would a transcript be sufficient? Probably.
But if there's only audio and video-
Gaziano: Was that part of your ask as well,
for any transcripts?
-: We can't ask them for a transcript.
There is none.
The Public Records Law says that that's the way it is.
It has to be a document that's in existence.
They're not required to produce one. And they haven't.
-: So, I understand where you're coming from,
for instance, on the surveillance video
in the investigatory exemption.
But I'm still...
I'd really like to understand,
following up on what Justice Gaziano just asked,
because if something's already been released
and is out there,
then that's a factor, obviously,
that's really important in the investigatory exemption.
Do you need the video?
Do you have what you need?
I know there's no summary.
You just told us that.
From what's been released,
because the point is that people might not be willing
to come forward if they know the video might be on YouTube.
-: They're actually saying police officers
wouldn't come forward, and police officers,
unless they're going to assert a Fifth Amendment privilege,
they come forward.
As I've said, recording internal affairs interviews
is the standard in policing.
And police officers do not refuse to come forward.
And if you think about why would they,
I mean, they really would want to.
Let's say this was a little different case.
Let's say they shot Mr. Harden and he survived,
and he says the police used excessive force.
Now they say, well, we're not gonna come forward
because you wanna do a recorded interview.
-: I'm sure the police misconduct investigations
is broader than internal affair investigations.
-: Well, an internal affairs investigation
should be an investigation of police misconduct, sir,
by definition.
-: Right. But it could be broader.
I'm worried that, of your point,
that every police officer interview is already videotaped.
I'm just wondering if that's accurate.
-: Not always. They're often tape recorded.
They're not all videotaped.
I guess the state police choose to do that, but-
-: But it's an important point.
It's an important point to the appellants here
that these videotaped interviews
are not disseminated to the world.
So, I'm trying to get a grip on your point.
Well, they're already videotaped.
And honing in on that,
because it's actually sort of important.
-: Well, and their point is a privacy point.
And of course, police officers,
their faces are in the paper when they're hired,
when they're promoted.
-: But with all, yeah, it's not privacy.
Lowy: We're in the investigation exemption.
You win on the privacy
if this is a misconduct investigation.
-: Well.
We need to have the actual information here.
I don't, you know, this is a completed investigation,
and they've been exonerated,
and yet you say, well,
and they've given us the information
that would tend to exonerate them, I guess.
And we've just got little pieces around the edges,
you know, saying, well, will I be fired?
So, there's suspicions here.
We have some information,
and we went to the point,
their objection is that the police
will somehow be embarrassed.
Now, police officers, in fact this year in Fall River,
they're now carrying body-worn cameras
and everything they do is being recorded.
And those, too, can be requested as public records.
-: We know, but not, right or wrong,
we're not considering whether they can be embarrassed.
That's privacy.
We're dealing with the investigatory exemption.
And I think it's important to know
whether or not police officers
in these misconduct investigations
are already being videotaped.
Because if they are already being videotaped,
it would be hard to understand the appellant's argument
that it's going to show them being videotaped.
-: The state police apparently use videotapes.
The other departments I'm familiar with use audio tape.
And the audio tapes are provided,
as I said, now, sometimes without the transcript.
Mostly we prefer a transcript
unless there's perhaps something that's unintelligible
where we might really wanna listen to a recording.
And I don't know that I've heard of these audio tapes
somehow being disseminated to the public
and causing embarrassment to police officers.
And truthfully,
most of the embarrassment would come from the words
that they have said in the interview.
To understand the investigation without being able to learn
what the officers actually said.
Now, if they said,
this is a transcript of the report, we don't need-
-: And just to be clear,
and I don't wanna speak for everybody else,
but I'm not concerned about embarrassment,
I'm concerned about investigatory technique,
not embarrassment.
We take your point,
but don't read in the embarrassment part.
That's part of the,
that's what they signed up for.
We want to talk about showing investigatory techniques.
-: The defendant here would have the burden to show that.
They've done nothing to try to show that there was
some sort of confidential investigatory techniques
used in these interviews.
-: And that's what we're gonna assess.
-: That's the view that, and we cite in the brief,
there are many articles about interviewing.
You could find books about
how to conduct an internal affairs investigation.
There may be some very specific confidential techniques
involving informants, maybe secret recordings,
that sort of thing.
That's not what this is.
This is not about some kind
of confidential investigative technique.
They haven't raised it.
And I think that, given that they didn't,
they've had their opportunity,
I don't think you could say,
well, there might have been.
There might have been.
But that was up to them to present that.
That's not an argument they're making.
That's why I keep going back to their arguments.
And I understand you're concerned about policy,
but we have to look at the record
that's been developed here.
We went straight to summary judgment.
Budd: Okay, thank you very much.
-: Thank you.
If there are further questions,
obviously we'd like you to affirm the judge's decision
and release the records,
except those that are confidential,
put under the amended statute.
Thank you.
-: Okay. Attorney Welch.
-: Good morning, your honors. May it please the court.
I'm Graham Welch and I represent Lawyers for Civil Rights
in a group of amici
who are deeply committed to racial justice
and to greater transparency and accountability
in law enforcement in the Commonwealth.
We respectfully request that the court
affirm the judgment below
and maintain the law investigation misconduct carve-out
to the privacy exemption to the Public Records Law
as written.
And just to start off,
I would like to redirect this court's attention
to the plain language
of the misconduct investigation carve-out,
which states in relevant part,
in chapter four, section seven, clause 26C,
that there is an exception requiring disclosure of
"records related to a law enforcement
misconduct investigation."
And the District Attorney's Office argues
that this was not a law enforcement misconduct investigation
because first, this was not an investigation of misconduct.
And second, there was no finding in misconduct.
Accordingly, they argue, they note,
that the carve-out does not apply
and they're under no obligation to release records
as a matter of law, despite clause 26C.
First, just as a matter of statutory interpretation,
this argument by the District Attorney is incorrect,
and the carve-out applies regardless of whether
there is a finding of misconduct.
This ignores the clear language of clause 26C,
which is written broadly to include
all records that are related
to a law enforcement misconduct investigation.
There's no requirement in the statute
that there needs to be a finding of misconduct.
Similarly, there is no requirement
that it needs to be an internal investigation,
or conducted by the Internal Affairs Board,
or any other carve-out is written broadly in that respect.
Gaziano: Assume that we agree with you on that point.
Can you address the investigatory exemption?
-: What I would say as to the investigatory exemption
is that the conflict is not necessarily
with the privacy carve-out
because of the fact that the privacy carve-out
is written so broadly that any records
that result from a misconduct investigation
are included therein.
And this is really what goes to the heart
of the creation of the misconduct investigation,
which was the 2020 act relating
to justice, equity and accountability
in law enforcement in the Commonwealth.
-: Can I ask you then, a question?
Are you, I'm confused.
Are you saying that that carve-out for the privacy exemption
applies to the investigatory?
-: No, I'm just saying it's written incredibly broadly.
-: Yeah, so, that was my question.
So, assume you win on that one,
then you also have to, or we also have to,
look at the investigatory exemption
and what you heard from some of the questions.
At least, there's a concern about that.
I wanna give you the opportunity to address that as well.
-: Absolutely.
And I think just my primary argument there
is that the privacy section is so broad
that the investigatory exception
will not create an issue there.
But I, and this kind of actually relates to the argument
regarding the death investigation statute as well.
Just to reiterate, this was an investigation into misconduct
and there is no conflict with Chapter 38, section four
on that front, as,
which because that statute actually sets forth the protocol
following a death in an investigation into one.
And that there is no language that contradicts
the misconduct investigation there.
And in fact, in the District Attorney's December 21st, 2021
report concerning the incident,
they characterized their inquiry as one
to determine whether "either Fall River police officer
committed a crime."
It's located in the record at page A36.
Similarly, the court's discussed at-
-: Counsel, I'm gonna have to short circuit you
because we've asked you twice now,
and I really need to get an answer
to see what your position is.
Are you saying that the privacy exemption is so broad
that it swallows the investigatory exemption?
Welch: No.
-: So can, tell us specifically,
why doesn't the stuff that's been withheld
pursuant to the investigatory exception?
Obtain.
-: For that I would rely on the argument
just made by Attorney Friedman,
reiterate the arguments that he just made. Thank you.
-: So, you have nothing further to add?
Welch: No, I do not.
-: Because you keep saying how the privacy exemption
and the investigatory stuff that happened in, pardon me,
the exception for police misconduct is so broad
that there's no conflict with the investigatory.
Because it sounds like you're saying it's so broad
that even if there's an investigatory component to this,
it still gets released,
because the exception that was created
to the privacy exemption is so broad that it has to.
You're not saying that?
-: No, no.
I am saying that if the investigatory exception
were to not apply,
they could not be withheld
on the basis of the privacy exception.
-: Okay. -: That's what I'm arguing.
And if there are no further questions, I sent out my papers.
Thank you very much.