WEBVTT
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SJC-13467.
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Eric Mack, the Office of the District Attorney
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of the Bristol District.
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Okay, Attorney Lee.
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Good morning. May it please the court.
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Mary Lee, Assistant District Attorney
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from the Bristol District.
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This is an appeal by the Office of the District Attorney
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in regards to public records request,
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which resulted in a lawsuit, a civil lawsuit,
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and then a denial, I'm sorry,
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an allowance of motions for summary judgment
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for the plaintiff,
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and a denial of the motion for summary judgment
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for the defendant, District Attorney.
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This case involves just a tragic background
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of a fatal police shooting on November 22nd, 2021.
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And I know there are quite a few amicus briefs
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and they're focusing on the factual circumstances
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of this case.
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But this is all about the Public Records Law
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and its exemptions and withholdings under the statute.
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There are 22 exemptions under the Public Records Law.
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The District Attorney's office has done its best to navigate
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that role of providing substantial documents.
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There are over 380 pages of redacted reports and documents,
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over 200 photographs, nine videos, six audios,
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and those were placed on a website
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so they'd be available to the public
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after the request in this case
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to be as transparent and open as possible.
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And it's very understandable that the requester,
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who is the decedent's brother,
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wants every scrap of paper,
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every piece of document that they can get.
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But the Public Records Law,
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well, it says all documents has these exemptions.
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But there's a exception.
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There's a new exception.
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And the new exception has to do
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with law enforcement misconduct investigations.
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And what are the implications of that
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for the balancing that goes on with the privacy exemption?
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It seems like it would eliminate
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the balancing of the privacy exemption
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with the law enforcement misconduct exception.
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So, that exception came into play
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in the 2020 amendment to the statute when Post was created.
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I assume everybody has read the brief
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and knows what Post is.
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So, that came about in 2020.
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So that misconduct investigation exception
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is to the privacy exemption.
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So, our exemptions were not entirely
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under the privacy exemption,
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though some of them were.
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I know, but on the privacy exemption, this,
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am I right that we don't do the balancing
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on the privacy exemption now that we have
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this law enforcement misconduct investigation exception
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to the exemption.
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So, the exception says that records related
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to a law enforcement misconduct investigation
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are an exception to the privacy exemption
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from the Public Records Law.
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And so they get disclosed.
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So, I'm sorry?
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And so they get disclosed.
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So, they get disclosed. Yes.
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So, one of the big questions in this case
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is whether this matter constitutes
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a law enforcement misconduct investigation.
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So that-
How does it not?
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So, this is a death investigation
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under chapter 38, section four,
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there has been no accusation
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of misconduct against the officers.
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There has been no finding of misconduct by the officers.
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What is the purpose of the death investigation?
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It's to determine whether there was
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a criminal action and so-
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So, misconduct.
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So, I would suggest that we are not
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the employer of the police.
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We are not the conducting an internal affairs investigation
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and we are determining whether a crime has been committed,
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but no allegation has been made against the officers
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and no final-
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But that's the end. Sorry.
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Isn't this exactly what the statutory change is for?
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So that we can have transparency,
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try to understand what happened?
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So that, a lot of public good,
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including for the family,
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but also for confidence in our system of justice
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and in law enforcement investigation.
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Right, and the District Attorney's Office
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is trying to be transparent.
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We've released a large number of the records.
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The privacy exemption that we're currently citing
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and fighting in this appeal
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is regarding the names of the officers.
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The reports of the conduct have been released.
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The amicus briefs and the plaintiff's briefs show
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that what our discovery,
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our disclosure of these records has done,
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has given the public just that.
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The opportunity to look at these records
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and make a determination whether the district attorney
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has acted correctly,
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whether the police officers have acted correctly,
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whether the public agrees or disagrees
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with how the public officials have acted in this case.
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The question of the names is where we fall
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to the privacy exemption.
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So I would-
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Why would you, though?
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I mean, I guess I'm struggling of the rationale.
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You have public employees in the discharge
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of their public obligations and job duties,
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are involved in an underlying case
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where there's a concern as to whether or not
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it was lawful or what have you.
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Why would that be protected?
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Because it's not an apples to apples analog,
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but assume for the sake of argument,
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I'm a motorist and I feel like a police officer
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hasn't done what they were supposed to do, and I say,
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"Give me your badge number, because you're doing your job,
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and I think you're not doing it right,
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and I have a right to know
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who you are in the discharge of your duties."
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Why is this different?
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Well, I say this is different
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for a couple of different reasons.
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The first one is we asked this court to take this case
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so that we could get some judicial interpretation
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of what law enforcement misconduct investigation means.
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Because if we give out those names and we are wrong,
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they are out there forever.
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And you look at the 2020 legislation,
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and Post has its authority to give out or withhold names
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and conduct confidential investigations
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prior to the release of those names,
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and then can determine,
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for the safety and wellbeing of the officers,
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whether those names should be released or not.
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Public Records Law has a 10 business day deadline.
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If the holder of the records releases those names,
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then Post never gets to make that analysis.
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The Post was created at the same time
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as this exemption was put in.
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So this is putting us between a rock and a hard place
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on the records.
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We released the records of the conduct
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so everybody could see what the conduct was,
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and we thought the best thing to do
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was to withhold the names.
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Then, Post can make its determination later.
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If we let the cat out of the bag now,
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those names are out there forever.
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But we have a letter from Post
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that points out that the 2020 act
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doesn't compel the Commission to gather
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all records related to the investigation.
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And their position seems to recognize
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that while it's a great step, it's not a panacea,
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and it doesn't eviscerate the Public Records Law.
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I guess my concern, well,
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we obviously didn't have amicus Post
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until after the filing of our briefs,
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the amicus letter from Post.
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But what does that legislation about Post mean then
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if the names are gonna get released before Post
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ever has any kind of weighing in?
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They're supposed to be the ones,
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like even if you don't find that this is-
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Does one inform the other?
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I'm sorry?
Does one inform the other?
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Does the public's right to know,
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is that informed by what Post does?
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Or should it be?
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I think that's part of the balancing
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under subsection C for privacy,
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because we don't just release police officers names
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all the time.
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Under Worcester Telegram,
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this court declined to say they always get released under-
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(justices speaking over each other)
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Yeah, I mean I thought we don't do balancing
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with the privacy if it's a law enforcement
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investigation of misconduct?
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So, that's part of the newness of the statute.
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Where do we fall?
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Because public employees don't lose all their privacy rights
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and Post has this authority to withhold the names.
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And yet you have this contrary provision that says,
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except for law enforcement misconduct investigations.
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We don't take the view
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that this is a misconduct investigation.
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If this court disagrees with us,
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then we go to, what does this subsection of 26 C,
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the exception for law enforcement misconduct investigations,
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mean in relation to Post's ability to protect officers,
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as this court had tried to do in Worcester
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and more specifically Antell,
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which is in my reply brief,
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about what do we do when an officer's safety is involved?
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We can withhold the names. Post can do that.
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If we're giving out the names in 10 business days,
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then that review by Post can never happen
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and one part of the statute
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would seem to cancel out the other,
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and no part of the statute can be superfluous.
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So you're saying that an investigation into the death
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to determine whether a crime has been committed doesn't fall
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within the law enforcement misconduct investigation
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plain language because otherwise Post is meaningless?
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So, that's actually two parts of my argument.
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I do agree with the first part of the argument where I said,
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this isn't a law enforcement misconduct investigation
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because this is a death investigation.
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We're not the employer,
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this is not an internal affairs matter.
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We have not made an allegation.
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No one has made an allegation against the officers
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and there's been no finding of misconduct by the officers.
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The second part is that if this is
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a law enforcement misconduct investigation,
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is it enough to give out the records
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and protect the names of the officers, as was done previous,
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prior to the 2020 amendment in Antell?
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And let Post decide whether they go out or not,
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whether they're disclosed or not,
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or does that provision,
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when considered in conjunction with Post,
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which was made at the same time by the legislature,
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let us disclose all the conduct
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and keep back the officers names?
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I guess that's why you still go back
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to the original point,
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because you talked about the statutory construction
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and that's not what the legislature said
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when they created that exception to the privacy exception.
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They didn't say, but go see Post.
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So, I guess, is it,
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not that you're saying this,
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but is it the withholding of this, saying,
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we have no dog in the fight
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and hey, yes, JC tell us where to go?
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We have a dog in the fight
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in that we want to make sure we get it right
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and releasing the names before we're sure we got it right
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seemed like we were completely undercutting Post.
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So, you are looking for guidance
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from this court?
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Yes.
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Yeah, we wanna know what the right thing to do is,
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because as I said,
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it's like being in between a rock and a hard place.
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You are required to give out the records,
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but you're required to protect privacy.
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They want the names,
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but some of the case law permits the protection
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of the names of police officers,
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and the Post legislation seems to protect
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the names of the officers,
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and no part of the statute can be rendered superfluous.
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So what am I as a record access officer
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supposed to do in those circumstances
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rather than disregard all privacy rights
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00:12:17.160 --> 00:12:18.840
and disregard the authority of Post
273
00:12:18.840 --> 00:12:21.060
that was given to them by the legislature?
274
00:12:21.060 --> 00:12:24.270
We released all the conduct of the misconduct,
275
00:12:24.270 --> 00:12:26.880
if you call it a misconduct, investigation,
276
00:12:26.880 --> 00:12:28.890
or as we call it a death investigation.
277
00:12:28.890 --> 00:12:31.590
We released all the records of that conduct
278
00:12:31.590 --> 00:12:33.540
and simply withheld the names.
279
00:12:33.540 --> 00:12:37.740
And that is how we think the court should be reading this.
280
00:12:37.740 --> 00:12:40.830
But I admit it is a difficult question
281
00:12:40.830 --> 00:12:41.940
that I'm presenting to you,
282
00:12:41.940 --> 00:12:44.430
and that's why we asked for direct appellate review.
283
00:12:44.430 --> 00:12:49.080
You have the special assistant AG's view of it.
284
00:12:49.080 --> 00:12:53.880
I understand. I respectfully disagree.
285
00:12:53.880 --> 00:12:56.730
They have been given authority from Post
286
00:12:56.730 --> 00:12:59.010
and they're saying they don't have that authority,
287
00:12:59.010 --> 00:13:00.720
I'm sorry, Post has been given that authority
288
00:13:00.720 --> 00:13:02.400
by the legislature,
289
00:13:02.400 --> 00:13:05.700
and it says right in the statute,
290
00:13:05.700 --> 00:13:07.470
they're supposed to consider the welfare
291
00:13:07.470 --> 00:13:10.593
and safety of the officers before they release those names.
292
00:13:11.880 --> 00:13:16.410
So I don't, I respectfully disagree with my brother,
293
00:13:16.410 --> 00:13:18.690
who's the special assistant AG
294
00:13:18.690 --> 00:13:20.343
in the Attorney General's Office.
295
00:13:21.360 --> 00:13:24.930
Understanding this is a very difficult amendment
296
00:13:24.930 --> 00:13:27.240
to reconcile with privacy,
297
00:13:27.240 --> 00:13:28.890
with protection of police officers,
298
00:13:28.890 --> 00:13:31.380
and with the Post legislation, generally.
299
00:13:31.380 --> 00:13:34.680
I would like to note that the motion judge's decision,
300
00:13:34.680 --> 00:13:36.090
part of the reason we appealed
301
00:13:36.090 --> 00:13:38.430
is that the motion judge's decision contains errors
302
00:13:38.430 --> 00:13:41.610
that we simply could not let stand
303
00:13:41.610 --> 00:13:45.510
because they will create bad law as persuasive authority.
304
00:13:45.510 --> 00:13:48.849
My brother, the plaintiff,
305
00:13:48.849 --> 00:13:49.907
has agreed that the judge
306
00:13:49.907 --> 00:13:52.020
should not have considered the relationship
307
00:13:52.020 --> 00:13:55.350
between the requester, the plaintiff in this case,
308
00:13:55.350 --> 00:13:57.180
who is the brother of the decedent.
309
00:13:57.180 --> 00:13:59.730
The balancing on release of records
310
00:13:59.730 --> 00:14:01.233
and withholding of records,
311
00:14:03.280 --> 00:14:05.895
is for the public interest in that.
312
00:14:05.895 --> 00:14:07.950
And also he did not talk about the investigatory exception,
313
00:14:07.950 --> 00:14:09.510
which I see I'm running out of time,
314
00:14:09.510 --> 00:14:11.520
but this I think is the most important part
315
00:14:11.520 --> 00:14:12.870
of this case to me.
316
00:14:12.870 --> 00:14:15.330
I will rely on my brief for the other parts.
317
00:14:15.330 --> 00:14:18.810
The recorded interviews of the police officers,
318
00:14:18.810 --> 00:14:21.300
those were under the investigatory exemption.
319
00:14:21.300 --> 00:14:23.250
The Superior Court judge did not even consider
320
00:14:23.250 --> 00:14:25.710
the investigatory exemption.
321
00:14:25.710 --> 00:14:28.530
If we lose recorded interviews
322
00:14:28.530 --> 00:14:32.160
because people don't want their statements
323
00:14:32.160 --> 00:14:35.820
and their video of themselves to be placed online
324
00:14:35.820 --> 00:14:38.970
to be mocked, to be modified, to be put to music,
325
00:14:38.970 --> 00:14:41.760
or whatever else, or part of a podcast.
326
00:14:41.760 --> 00:14:45.360
One of the amicus' is an internet journalist in this case.
327
00:14:45.360 --> 00:14:48.873
If we lose those investigations,
328
00:14:49.800 --> 00:14:52.560
I'm sorry, lose those portions of our investigations
329
00:14:52.560 --> 00:14:54.150
with the recorded interviews of the police
330
00:14:54.150 --> 00:14:55.770
because they don't want it to be public,
331
00:14:55.770 --> 00:14:57.360
they don't want their kids to see it,
332
00:14:57.360 --> 00:14:59.520
they don't want their parents to see it,
333
00:14:59.520 --> 00:15:01.890
then we lose an important investigatory tool
334
00:15:01.890 --> 00:15:05.310
that this court has said is necessary in (indistinct).
335
00:15:05.310 --> 00:15:07.140
And if we do go to prosecution,
336
00:15:07.140 --> 00:15:10.020
we end up with an adverse instruction on it,
337
00:15:10.020 --> 00:15:12.510
even if someone has declined to be recorded.
338
00:15:12.510 --> 00:15:15.360
So I would ask that the recorded interviews
339
00:15:15.360 --> 00:15:17.670
be approved as being withheld.
340
00:15:17.670 --> 00:15:20.850
I would rely on my brief
341
00:15:20.850 --> 00:15:25.140
for the work product exemptions in the in-camera appendix,
342
00:15:25.140 --> 00:15:28.200
as well as the privacy exemptions for individuals
343
00:15:28.200 --> 00:15:30.210
of the photographs in the in-camera appendix.
344
00:15:30.210 --> 00:15:32.610
I think the photographs speak for themselves.
345
00:15:32.610 --> 00:15:35.610
If there are any other questions, I am happy to answer them.
346
00:15:38.130 --> 00:15:40.130
I guess I'm just trying to figure out,
347
00:15:42.570 --> 00:15:44.880
why this wouldn't be considered misconduct,
348
00:15:44.880 --> 00:15:46.890
aside from the fact that you're not
349
00:15:46.890 --> 00:15:49.353
the officer's employer, just generally.
350
00:15:53.070 --> 00:15:56.010
Because there's a fatal shooting. So.
351
00:15:56.010 --> 00:16:00.710
Yes, so why wouldn't that be under the umbrella of police-
352
00:16:00.710 --> 00:16:02.850
As this court's murder instructions show,
353
00:16:02.850 --> 00:16:06.000
there are many reasons why a homicide would be justified.
354
00:16:06.000 --> 00:16:09.300
Self-defense, defense of another, accident.
355
00:16:09.300 --> 00:16:12.330
And none of those things would necessarily involve
356
00:16:12.330 --> 00:16:14.943
the misconduct of the person committing the act.
357
00:16:14.943 --> 00:16:18.150
Law enforcement misconduct investigations.
358
00:16:18.150 --> 00:16:20.995
I mean, you've got the word investigations in there.
359
00:16:20.995 --> 00:16:24.777
It's not limited by (mumbles).
360
00:16:25.920 --> 00:16:26.753
Right.
361
00:16:26.753 --> 00:16:28.530
And I think one of the amicus pointed out
362
00:16:28.530 --> 00:16:31.920
that the legislature didn't say finding of misconduct.
363
00:16:31.920 --> 00:16:34.080
And I acknowledge that.
364
00:16:34.080 --> 00:16:37.800
But here, unlike the Boston Globe Media v. CJIS
365
00:16:37.800 --> 00:16:39.720
on the booking photos case,
366
00:16:39.720 --> 00:16:42.210
you don't have an arrest of a public official
367
00:16:42.210 --> 00:16:44.400
with the booking and the photograph being taken,
368
00:16:44.400 --> 00:16:48.720
which stands in what I would suggest is the accusation.
369
00:16:48.720 --> 00:16:51.000
What we have here is an incident that happened,
370
00:16:51.000 --> 00:16:52.530
our office investigates it,
371
00:16:52.530 --> 00:16:54.060
as we're required to under statute,
372
00:16:54.060 --> 00:16:56.430
to determine if any criminal activity has happened
373
00:16:56.430 --> 00:16:58.980
without accusation against the officers,
374
00:16:58.980 --> 00:17:00.750
and without a finding against the officers.
375
00:17:00.750 --> 00:17:01.680
And so we would suggest
376
00:17:01.680 --> 00:17:03.690
that's not a misconduct investigation.
377
00:17:03.690 --> 00:17:07.530
I acknowledge the answers that my brother,
378
00:17:07.530 --> 00:17:08.760
who's an Assistant District Attorney,
379
00:17:08.760 --> 00:17:10.470
gave to the Superior Court,
380
00:17:10.470 --> 00:17:12.090
which is noted in one of the amicus briefs,
381
00:17:12.090 --> 00:17:13.530
that of course we were checking to see
382
00:17:13.530 --> 00:17:14.363
if there was misconduct.
383
00:17:14.363 --> 00:17:15.196
Of course, we were checking to see
384
00:17:15.196 --> 00:17:16.050
if there was criminal activity.
385
00:17:16.050 --> 00:17:19.080
We have to determine if a crime has been committed.
386
00:17:19.080 --> 00:17:21.600
But, so I would suggest in this case,
387
00:17:21.600 --> 00:17:24.011
that's for this court to decide
388
00:17:24.011 --> 00:17:29.011
if the legislature meant internal affairs investigations
389
00:17:29.100 --> 00:17:30.630
by the employers,
390
00:17:30.630 --> 00:17:34.830
or do they mean every time the DA's office
391
00:17:34.830 --> 00:17:36.740
is looking for Brady records,
392
00:17:36.740 --> 00:17:40.200
or looking for exonerations of officers,
393
00:17:40.200 --> 00:17:41.850
or conducting an investigation
394
00:17:41.850 --> 00:17:44.220
and determine no crime has been committed.
395
00:17:44.220 --> 00:17:45.870
What does this language mean?
396
00:17:45.870 --> 00:17:48.600
If this isn't a misconduct investigation,
397
00:17:48.600 --> 00:17:51.240
how do we reconcile that with Post's ability
398
00:17:51.240 --> 00:17:52.860
to withhold these names,
399
00:17:52.860 --> 00:17:56.130
if these names are being given out at such a quick rate?
400
00:17:56.130 --> 00:17:58.470
I would also acknowledge that our office,
401
00:17:58.470 --> 00:17:59.790
because of the voluminous records,
402
00:17:59.790 --> 00:18:02.850
did not respond within the 10 business days
403
00:18:02.850 --> 00:18:04.410
that I'm talking about here.
404
00:18:04.410 --> 00:18:05.970
But with the clarity of this court,
405
00:18:05.970 --> 00:18:09.360
we would hopefully be able to respond more quickly.
406
00:18:09.360 --> 00:18:10.530
The first denial was because
407
00:18:10.530 --> 00:18:12.240
there was an investigation pending,
408
00:18:12.240 --> 00:18:14.070
and then when we completed the records,
409
00:18:14.070 --> 00:18:17.100
I think it was between February and April of that year
410
00:18:17.100 --> 00:18:18.810
where we were completing the records
411
00:18:18.810 --> 00:18:22.620
because of the man hours required for the redactions.
412
00:18:22.620 --> 00:18:24.090
Alright.
Thank you.
413
00:18:24.090 --> 00:18:25.190
Thank you very much.
414
00:18:27.480 --> 00:18:28.863
Okay, Attorney Friedman.
415
00:18:30.000 --> 00:18:32.010
Thank you, Madame Chief Justice and members of the court.
416
00:18:32.010 --> 00:18:34.683
I'm Howard Friedman here representing Eric Mack.
417
00:18:36.300 --> 00:18:37.470
And of course,
418
00:18:37.470 --> 00:18:39.870
we agreed on how you interpret a statute.
419
00:18:39.870 --> 00:18:42.360
You look at the plain language and the purpose,
420
00:18:42.360 --> 00:18:44.280
and it seems clear to us
421
00:18:44.280 --> 00:18:48.150
that it says the sub-clause shall not apply to records
422
00:18:48.150 --> 00:18:51.630
related to a law enforcement misconduct investigation.
423
00:18:51.630 --> 00:18:53.280
That's fairly broad.
424
00:18:53.280 --> 00:18:56.370
And I can answer Chief Justice Budd's question,
425
00:18:56.370 --> 00:18:57.450
well, what does it mean?
426
00:18:57.450 --> 00:18:59.490
And I tried to figure that out.
427
00:18:59.490 --> 00:19:02.200
And my view is that it's saying
428
00:19:03.210 --> 00:19:05.340
that the privacy exemption does not apply
429
00:19:05.340 --> 00:19:07.980
to a public records request that seeks records
430
00:19:07.980 --> 00:19:10.740
related to an investigation to determine
431
00:19:10.740 --> 00:19:13.920
if a person or agency who enforces the law
432
00:19:13.920 --> 00:19:16.560
has committed misconduct by violating
433
00:19:16.560 --> 00:19:20.160
the Constitution of the Commonwealth,
434
00:19:20.160 --> 00:19:22.020
or the United States or the laws
435
00:19:22.020 --> 00:19:23.370
of the Commonwealth of the United States,
436
00:19:23.370 --> 00:19:26.520
or standards, policies, procedures, rules,
437
00:19:26.520 --> 00:19:28.920
or regulations of a police department,
438
00:19:28.920 --> 00:19:30.150
or other law enforcement agency.
439
00:19:30.150 --> 00:19:32.340
And this doesn't really apply only to police,
440
00:19:32.340 --> 00:19:34.740
it applies to law enforcement agencies.
441
00:19:34.740 --> 00:19:36.810
And that's broad.
442
00:19:36.810 --> 00:19:38.683
A District Attorney's Office could be considered
443
00:19:38.683 --> 00:19:40.050
a law enforcement agency.
444
00:19:40.050 --> 00:19:42.000
It certainly doesn't require
445
00:19:42.000 --> 00:19:44.820
that the agency employ the police officer.
446
00:19:44.820 --> 00:19:46.920
It's focused on an investigation.
447
00:19:46.920 --> 00:19:50.790
And I suppose my sister has agreed to this,
448
00:19:50.790 --> 00:19:51.960
we cited in the brief,
449
00:19:51.960 --> 00:19:54.120
at the argument on the motion for summary judgment,
450
00:19:54.120 --> 00:19:57.240
when the judge asked the assistant district attorney,
451
00:19:57.240 --> 00:20:00.600
he said, you have to be at least anticipating
452
00:20:00.600 --> 00:20:02.880
that you're thinking about whether there's misconduct done
453
00:20:02.880 --> 00:20:04.920
in the performance of one's duties.
454
00:20:04.920 --> 00:20:06.300
He said, of course.
455
00:20:06.300 --> 00:20:07.680
And whether there was a crime committed,
456
00:20:07.680 --> 00:20:08.880
he said, of course.
457
00:20:08.880 --> 00:20:10.980
We're conducting a criminal investigation.
458
00:20:10.980 --> 00:20:12.960
Whether we decide in this case there's a homicide,
459
00:20:12.960 --> 00:20:15.753
whether there was reasonable or excessive force.
460
00:20:16.727 --> 00:20:19.530
Certainly if a police officer used unreasonable force
461
00:20:19.530 --> 00:20:21.600
in causing the death of an individual,
462
00:20:21.600 --> 00:20:24.120
that would be law enforcement misconduct.
463
00:20:24.120 --> 00:20:25.620
When you conduct an investigation,
464
00:20:25.620 --> 00:20:28.440
you don't start necessarily with an accusation.
465
00:20:28.440 --> 00:20:30.900
Investigation should be a search for truth.
466
00:20:30.900 --> 00:20:33.390
And you should start with a plain slate
467
00:20:33.390 --> 00:20:36.120
and be looking to see where the facts will lead.
468
00:20:36.120 --> 00:20:38.490
That's what we're talking about here, an investigation.
469
00:20:38.490 --> 00:20:43.200
So, police do things that are really sensitive.
470
00:20:43.200 --> 00:20:45.810
They do investigations that are really sensitive.
471
00:20:45.810 --> 00:20:47.340
They're part of units that, sometimes,
472
00:20:47.340 --> 00:20:50.013
that you need a certain level of anonymity.
473
00:20:50.910 --> 00:20:53.880
When you have the underlying facts,
474
00:20:53.880 --> 00:20:57.720
but all you are not given is the specifics
475
00:20:57.720 --> 00:20:59.610
of who the actors are,
476
00:20:59.610 --> 00:21:01.230
isn't that enough?
477
00:21:01.230 --> 00:21:02.280
Doesn't that bound,
478
00:21:02.280 --> 00:21:05.880
I understand Justice Lowy made this point very clearly,
479
00:21:05.880 --> 00:21:07.410
that the privacy exemption,
480
00:21:07.410 --> 00:21:08.790
we're not doing the balancing anymore
481
00:21:08.790 --> 00:21:11.580
that we used to now with this exception.
482
00:21:11.580 --> 00:21:14.100
But there was still sensitive information
483
00:21:14.100 --> 00:21:16.560
with respect to who the folks are
484
00:21:16.560 --> 00:21:19.650
when you're talking about specific officers.
485
00:21:19.650 --> 00:21:22.080
And if you have the underlying facts
486
00:21:22.080 --> 00:21:24.420
of what they are alleged to have done,
487
00:21:24.420 --> 00:21:26.283
why isn't that enough?
488
00:21:27.270 --> 00:21:30.690
Why isn't that a reasonable interpretation
489
00:21:30.690 --> 00:21:33.570
of not only the privacy exception,
490
00:21:33.570 --> 00:21:36.450
but then what was added in 2020?
491
00:21:36.450 --> 00:21:40.110
Well, the 2020 exception to the exemption
492
00:21:40.110 --> 00:21:42.600
only applies to privacy.
493
00:21:42.600 --> 00:21:44.430
There are, as my sister pointed out,
494
00:21:44.430 --> 00:21:46.470
22 other exceptions, exemptions.
495
00:21:46.470 --> 00:21:48.330
So that may well, for example,
496
00:21:48.330 --> 00:21:49.770
if it involves an informant,
497
00:21:49.770 --> 00:21:51.210
that might not be provided.
498
00:21:51.210 --> 00:21:52.560
But if you look in the record
499
00:21:52.560 --> 00:21:54.840
and you look at the reports that we were provided,
500
00:21:54.840 --> 00:21:56.310
they look like Swiss cheese.
501
00:21:56.310 --> 00:21:57.930
Blank said to blank, blank.
502
00:21:57.930 --> 00:22:01.110
And with that, you can't really tell what happened.
503
00:22:01.110 --> 00:22:02.850
We have some information about what happened.
504
00:22:02.850 --> 00:22:05.580
So I would say in your situation it would require
505
00:22:05.580 --> 00:22:06.690
a different exemption.
506
00:22:06.690 --> 00:22:09.090
The privacy exemption no longer applies.
507
00:22:09.090 --> 00:22:11.990
The rest of the Public Records Law exemptions would apply.
508
00:22:13.050 --> 00:22:16.590
Why don't the video tapes fall
509
00:22:16.590 --> 00:22:19.443
within the investigatory exemption.
510
00:22:21.000 --> 00:22:24.030
When you say the videotapes, of the law officers?
511
00:22:24.030 --> 00:22:24.863
Sure.
512
00:22:25.788 --> 00:22:29.343
Well, I think this is a case, perhaps like,
513
00:22:32.409 --> 00:22:35.610
the Boston Globe v. The Police Commissioner of Boston,
514
00:22:35.610 --> 00:22:36.900
which was the Stewart case,
515
00:22:36.900 --> 00:22:38.880
where they'd already released some information.
516
00:22:38.880 --> 00:22:39.720
We have information.
517
00:22:39.720 --> 00:22:42.780
What they provided us are summaries
518
00:22:42.780 --> 00:22:44.340
of the police officer's statements,
519
00:22:44.340 --> 00:22:46.800
and the summaries state right on them,
520
00:22:46.800 --> 00:22:47.730
this is only a summary.
521
00:22:47.730 --> 00:22:49.470
If you wanna know the full story,
522
00:22:49.470 --> 00:22:51.540
you've gotta listen to the recordings.
523
00:22:51.540 --> 00:22:54.390
And so without the recordings, we don't know the full story.
524
00:22:54.390 --> 00:22:57.540
And there are questions that we have about what happened.
525
00:22:57.540 --> 00:22:58.620
There's questions here-
526
00:22:58.620 --> 00:23:02.550
But when you were talking about the privacy exemption,
527
00:23:02.550 --> 00:23:05.280
you went to the words of the exemption.
528
00:23:05.280 --> 00:23:07.410
Now, sticking to the words of the exemption
529
00:23:07.410 --> 00:23:09.750
in the investigatory exemption,
530
00:23:09.750 --> 00:23:14.091
why do you construe those words not to protect
531
00:23:14.091 --> 00:23:15.041
the video tapes?
Well,
532
00:23:15.041 --> 00:23:16.440
the investigatory exemption, as you know,
533
00:23:16.440 --> 00:23:17.640
is not all inclusive.
534
00:23:17.640 --> 00:23:18.473
This court has-
It's not what?
535
00:23:18.473 --> 00:23:19.380
It's not inclusive.
536
00:23:19.380 --> 00:23:21.000
This court has said there are exceptions
537
00:23:21.000 --> 00:23:23.520
to the investigatory exemption.
538
00:23:23.520 --> 00:23:24.720
And one of them was actually
539
00:23:24.720 --> 00:23:28.350
Boston Globe v. the Boston Police Commissioner.
540
00:23:28.350 --> 00:23:32.310
Here, what they have said,
541
00:23:32.310 --> 00:23:33.690
the reason that these are subject
542
00:23:33.690 --> 00:23:35.010
to the investigatory exemption
543
00:23:35.010 --> 00:23:39.570
is because the police officers would be embarrassed
544
00:23:39.570 --> 00:23:43.080
and police officers would refuse to be recorded
545
00:23:43.080 --> 00:23:43.913
if these documents were provided.
546
00:23:43.913 --> 00:23:46.560
But it applies to any witness in a homicide, right?
547
00:23:46.560 --> 00:23:48.960
It would apply to any witness in a homicide.
548
00:23:48.960 --> 00:23:50.280
Well.
549
00:23:50.280 --> 00:23:51.960
Right, these happen to be police officers.
550
00:23:51.960 --> 00:23:55.200
So, if there's a homicide investigation
551
00:23:55.200 --> 00:24:00.060
and they interview someone who's in the house next door,
552
00:24:00.060 --> 00:24:02.313
they interview the cab driver, et cetera.
553
00:24:03.840 --> 00:24:08.700
The investigatory purpose of this, you know,
554
00:24:08.700 --> 00:24:10.740
the effective law enforcement,
555
00:24:10.740 --> 00:24:14.310
isn't that the government's gonna have to be compelled
556
00:24:14.310 --> 00:24:16.710
to give those tapes up,
557
00:24:16.710 --> 00:24:18.960
those interview tapes up to the media,
558
00:24:18.960 --> 00:24:21.300
and to be broadcast online.
559
00:24:21.300 --> 00:24:23.100
Well, it would be a homicide investigation
560
00:24:23.100 --> 00:24:25.350
only where there's law enforcement misconduct,
561
00:24:25.350 --> 00:24:29.160
where a police officer has been now charged with homicide.
562
00:24:29.160 --> 00:24:31.650
And certainly, if there was a different situation,
563
00:24:31.650 --> 00:24:33.150
if there was a criminal charge,
564
00:24:33.150 --> 00:24:35.220
I think they would've a good argument to say,
565
00:24:35.220 --> 00:24:38.040
you have to wait until the criminal case is over.
566
00:24:38.040 --> 00:24:41.280
But that doesn't mean you will never get that information.
567
00:24:41.280 --> 00:24:43.630
That's my understanding of how that would work.
568
00:24:45.540 --> 00:24:48.930
So, because there's no criminal charge,
569
00:24:48.930 --> 00:24:51.000
you get the information?
570
00:24:51.000 --> 00:24:52.320
Because there's no criminal charge,
571
00:24:52.320 --> 00:24:54.150
they've given us some of the information-
572
00:24:54.150 --> 00:24:55.590
But that's what, sorry,
573
00:24:55.590 --> 00:24:57.930
I started to stop you in answering my own question.
574
00:24:57.930 --> 00:25:01.560
But they've given you some of the information.
575
00:25:01.560 --> 00:25:04.680
Hasn't that balance of what's in the public interest
576
00:25:04.680 --> 00:25:07.260
then been achieved by giving you summaries?
577
00:25:07.260 --> 00:25:09.090
Or why is that not enough?
578
00:25:09.090 --> 00:25:12.060
Because the summary says it is not complete.
579
00:25:12.060 --> 00:25:15.180
It says if you want the full story, you have to see this.
580
00:25:15.180 --> 00:25:17.460
And remember, their argument is really
581
00:25:17.460 --> 00:25:20.460
that police officers won't come forward if they're recorded.
582
00:25:21.600 --> 00:25:23.340
The consent decree between
583
00:25:23.340 --> 00:25:25.140
the Department of Justice and Springfield
584
00:25:25.140 --> 00:25:28.080
requires all internal affairs interviews be recorded.
585
00:25:28.080 --> 00:25:30.270
That is the standard in the industry.
586
00:25:30.270 --> 00:25:33.090
As a lawyer, I've received numerous interviews
587
00:25:33.090 --> 00:25:35.430
of police officers by internal affairs.
588
00:25:35.430 --> 00:25:38.190
The idea that police officers will be afraid
589
00:25:38.190 --> 00:25:41.790
that their face will be on some internet-
590
00:25:41.790 --> 00:25:42.623
But that's different.
591
00:25:42.623 --> 00:25:44.460
You're under a protective order though, right?
592
00:25:44.460 --> 00:25:45.293
Excuse me?
593
00:25:45.293 --> 00:25:48.600
When they give them to you on a 1983 case
594
00:25:48.600 --> 00:25:51.570
the IA tape recordings, right?
595
00:25:51.570 --> 00:25:53.310
You're not free to give them to the Globe.
596
00:25:53.310 --> 00:25:55.290
When I get them in public records requests, I am free.
597
00:25:55.290 --> 00:25:56.580
Oh, in public records.
I do get them.
598
00:25:56.580 --> 00:25:57.450
I was asking about,
599
00:25:57.450 --> 00:25:59.610
I assumed you were talking about discovery.
600
00:25:59.610 --> 00:26:00.817
No, I do both.
601
00:26:00.817 --> 00:26:03.090
And really, and that's an interesting point,
602
00:26:03.090 --> 00:26:05.280
because one reason this is helpful
603
00:26:05.280 --> 00:26:08.340
is if someone is thinking of bringing a lawsuit
604
00:26:08.340 --> 00:26:11.550
against the police officers and you don't get information,
605
00:26:11.550 --> 00:26:15.060
a plaintiff's lawyer is more likely to want to bring suit.
606
00:26:15.060 --> 00:26:17.670
And if you provide the information, it may be,
607
00:26:17.670 --> 00:26:18.870
and I certainly have had these cases.
608
00:26:18.870 --> 00:26:21.660
We got internal affairs files and we looked at it and said,
609
00:26:21.660 --> 00:26:24.720
well, it sounded like a case when the client talked to us.
610
00:26:24.720 --> 00:26:26.280
But this is not a case.
611
00:26:26.280 --> 00:26:29.790
And that is helpful, of course, to cities and towns
612
00:26:29.790 --> 00:26:31.620
because then they don't get sued.
613
00:26:31.620 --> 00:26:33.450
Isn't the question here,
614
00:26:33.450 --> 00:26:37.470
as it relates to the investigatory exemption,
615
00:26:37.470 --> 00:26:42.450
isn't the issue here whether you're actually
616
00:26:42.450 --> 00:26:43.770
going to be able,
617
00:26:43.770 --> 00:26:46.650
not you are going to be able to get the videos,
618
00:26:46.650 --> 00:26:49.890
but the world's going to be able to get the videos
619
00:26:49.890 --> 00:26:51.780
when you already have the summaries
620
00:26:51.780 --> 00:26:56.640
and how that factors into the exemption?
621
00:26:56.640 --> 00:26:58.440
Well, that's true of all public records,
622
00:26:58.440 --> 00:26:59.730
that once they're released-
623
00:26:59.730 --> 00:27:00.990
But there's implications.
624
00:27:00.990 --> 00:27:01.840
I mean, you know,
625
00:27:03.644 --> 00:27:08.157
there's implications here that might impact investigations
626
00:27:08.157 --> 00:27:10.200
and the quality of investigations
627
00:27:10.200 --> 00:27:12.543
when the information is already there.
628
00:27:13.680 --> 00:27:15.240
I'm not sure I understand how it would affect
629
00:27:15.240 --> 00:27:16.200
the quality of information.
630
00:27:16.200 --> 00:27:19.650
I know that there's been talking in cases about,
631
00:27:19.650 --> 00:27:22.350
there's secret investigative techniques,
632
00:27:22.350 --> 00:27:23.670
who, what, when, where, how,
633
00:27:23.670 --> 00:27:26.073
why is usually the questions that are asked.
634
00:27:26.073 --> 00:27:27.690
I've seen, and probably many of you have-
635
00:27:27.690 --> 00:27:29.910
If if it's a confidential witness
636
00:27:29.910 --> 00:27:31.650
that's clearly covered.
637
00:27:31.650 --> 00:27:33.630
We're talking about everyday witnesses, essentially.
638
00:27:33.630 --> 00:27:35.700
There may be instances where there would be
639
00:27:35.700 --> 00:27:38.040
some other exemption and it would not be provided.
640
00:27:38.040 --> 00:27:40.833
But the purpose is to, you know, provide,
641
00:27:42.720 --> 00:27:44.460
we assume that records are public.
642
00:27:44.460 --> 00:27:47.380
And here where they've released some of the documents
643
00:27:48.357 --> 00:27:49.890
and not some of the, in a summary,
644
00:27:49.890 --> 00:27:51.030
and not the rest of it,
645
00:27:51.030 --> 00:27:52.140
there are serious questions.
646
00:27:52.140 --> 00:27:54.430
And you know, this is a case where not only
647
00:27:55.742 --> 00:27:58.650
was Mr. Harden shot in two minutes,
648
00:27:58.650 --> 00:28:00.660
but afterwards the police officer says
649
00:28:00.660 --> 00:28:03.543
to another officer, will I be fired?
650
00:28:04.380 --> 00:28:06.030
Well, what did those officers
651
00:28:06.030 --> 00:28:07.680
actually say when they were questioned?
652
00:28:07.680 --> 00:28:09.240
And how were they questioned?
653
00:28:09.240 --> 00:28:12.630
Were they questioned by being asked leading questions
654
00:28:12.630 --> 00:28:16.140
to try to show that what they did was somehow justified?
655
00:28:16.140 --> 00:28:18.330
And as you know, in the briefs, there are other issues-
656
00:28:18.330 --> 00:28:21.330
Aren't those the answers from the summaries?
657
00:28:21.330 --> 00:28:22.890
No, I mean.
658
00:28:22.890 --> 00:28:25.893
We cannot tell everything that was said during the summary.
659
00:28:27.030 --> 00:28:29.400
We know this much.
660
00:28:29.400 --> 00:28:32.670
We think that a public records request tour
661
00:28:32.670 --> 00:28:33.783
should know more.
662
00:28:35.190 --> 00:28:36.023
Excuse me.
663
00:28:41.673 --> 00:28:45.480
Do you know whether a transcript exists?
664
00:28:45.480 --> 00:28:46.830
There is no transcript.
665
00:28:46.830 --> 00:28:48.980
And of course, in a public records request-
666
00:28:49.864 --> 00:28:50.697
They don't have to create it.
667
00:28:50.697 --> 00:28:51.630
They don't have to create a transcript.
668
00:28:51.630 --> 00:28:54.360
Right, that's why I asked where that was part of the...
669
00:28:54.360 --> 00:28:55.320
In fact, recently,
670
00:28:55.320 --> 00:28:57.510
when I've done public records requests in Boston,
671
00:28:57.510 --> 00:28:59.610
they used to provide a transcript.
672
00:28:59.610 --> 00:29:01.620
Now they give me an audio interview
673
00:29:01.620 --> 00:29:03.390
and we pay for the transcript.
674
00:29:03.390 --> 00:29:06.333
So, would a transcript be sufficient? Probably.
675
00:29:07.620 --> 00:29:08.790
But if there's only audio and video-
676
00:29:08.790 --> 00:29:10.440
Was that part of your ask as well,
677
00:29:10.440 --> 00:29:11.703
for any transcripts?
678
00:29:12.573 --> 00:29:15.123
We can't ask them for a transcript.
679
00:29:15.960 --> 00:29:17.228
There is none.
680
00:29:17.228 --> 00:29:20.130
The Public Records Law says that that's the way it is.
681
00:29:20.130 --> 00:29:22.020
It has to be a document that's in existence.
682
00:29:22.020 --> 00:29:24.720
They're not required to produce one. And they haven't.
683
00:29:25.729 --> 00:29:26.970
So, I understand where you're coming from,
684
00:29:26.970 --> 00:29:28.890
for instance, on the surveillance video
685
00:29:28.890 --> 00:29:31.650
in the investigatory exemption.
686
00:29:31.650 --> 00:29:33.710
But I'm still...
687
00:29:34.650 --> 00:29:36.990
I'd really like to understand,
688
00:29:36.990 --> 00:29:39.390
following up on what Justice Gaziano just asked,
689
00:29:40.860 --> 00:29:43.320
because if something's already been released
690
00:29:43.320 --> 00:29:44.343
and is out there,
691
00:29:45.510 --> 00:29:47.220
then that's a factor, obviously,
692
00:29:47.220 --> 00:29:50.073
that's really important in the investigatory exemption.
693
00:29:51.360 --> 00:29:53.261
Do you need the video?
694
00:29:53.261 --> 00:29:55.410
Do you have what you need?
695
00:29:55.410 --> 00:29:56.460
I know there's no summary.
696
00:29:56.460 --> 00:29:57.960
You just told us that.
697
00:29:57.960 --> 00:30:00.090
From what's been released,
698
00:30:00.090 --> 00:30:05.090
because the point is that people might not be willing
699
00:30:05.970 --> 00:30:10.620
to come forward if they know the video might be on YouTube.
700
00:30:10.620 --> 00:30:12.030
They're actually saying police officers
701
00:30:12.030 --> 00:30:14.400
wouldn't come forward, and police officers,
702
00:30:14.400 --> 00:30:17.220
unless they're going to assert a Fifth Amendment privilege,
703
00:30:17.220 --> 00:30:18.053
they come forward.
704
00:30:18.053 --> 00:30:20.700
As I've said, recording internal affairs interviews
705
00:30:20.700 --> 00:30:22.440
is the standard in policing.
706
00:30:22.440 --> 00:30:25.680
And police officers do not refuse to come forward.
707
00:30:25.680 --> 00:30:27.240
And if you think about why would they,
708
00:30:27.240 --> 00:30:28.770
I mean, they really would want to.
709
00:30:28.770 --> 00:30:30.660
Let's say this was a little different case.
710
00:30:30.660 --> 00:30:33.960
Let's say they shot Mr. Harden and he survived,
711
00:30:33.960 --> 00:30:36.660
and he says the police used excessive force.
712
00:30:36.660 --> 00:30:38.430
Now they say, well, we're not gonna come forward
713
00:30:38.430 --> 00:30:41.463
because you wanna do a recorded interview.
714
00:30:41.463 --> 00:30:46.463
I'm sure the police misconduct investigations
715
00:30:46.710 --> 00:30:50.463
is broader than internal affair investigations.
716
00:30:51.630 --> 00:30:53.250
Well, an internal affairs investigation
717
00:30:53.250 --> 00:30:55.650
should be an investigation of police misconduct, sir,
718
00:30:55.650 --> 00:30:56.850
by definition.
719
00:30:56.850 --> 00:30:58.503
Right. But it could be broader.
720
00:31:00.344 --> 00:31:02.940
I'm worried that, of your point,
721
00:31:02.940 --> 00:31:07.940
that every police officer interview is already videotaped.
722
00:31:09.660 --> 00:31:11.220
I'm just wondering if that's accurate.
723
00:31:11.220 --> 00:31:13.500
Not always. They're often tape recorded.
724
00:31:13.500 --> 00:31:15.480
They're not all videotaped.
725
00:31:15.480 --> 00:31:18.660
I guess the state police choose to do that, but-
726
00:31:18.660 --> 00:31:20.070
But it's an important point.
727
00:31:20.070 --> 00:31:23.730
It's an important point to the appellants here
728
00:31:23.730 --> 00:31:26.277
that these videotaped interviews
729
00:31:26.277 --> 00:31:28.830
are not disseminated to the world.
730
00:31:28.830 --> 00:31:31.620
So, I'm trying to get a grip on your point.
731
00:31:31.620 --> 00:31:34.080
Well, they're already videotaped.
732
00:31:34.080 --> 00:31:36.480
And honing in on that,
733
00:31:36.480 --> 00:31:38.970
because it's actually sort of important.
734
00:31:38.970 --> 00:31:41.010
Well, and their point is a privacy point.
735
00:31:41.010 --> 00:31:43.650
And of course, police officers,
736
00:31:43.650 --> 00:31:45.540
their faces are in the paper when they're hired,
737
00:31:45.540 --> 00:31:46.691
when they're promoted.
738
00:31:46.691 --> 00:31:48.408
But with all, yeah, it's not privacy.
739
00:31:48.408 --> 00:31:51.510
We're in the investigation exemption.
740
00:31:51.510 --> 00:31:52.920
You win on the privacy
741
00:31:52.920 --> 00:31:55.743
if this is a misconduct investigation.
742
00:31:57.180 --> 00:31:58.013
Well.
743
00:31:58.890 --> 00:32:01.500
We need to have the actual information here.
744
00:32:01.500 --> 00:32:05.430
I don't, you know, this is a completed investigation,
745
00:32:05.430 --> 00:32:07.290
and they've been exonerated,
746
00:32:07.290 --> 00:32:09.090
and yet you say, well,
747
00:32:09.090 --> 00:32:10.680
and they've given us the information
748
00:32:10.680 --> 00:32:12.990
that would tend to exonerate them, I guess.
749
00:32:12.990 --> 00:32:16.170
And we've just got little pieces around the edges,
750
00:32:16.170 --> 00:32:17.940
you know, saying, well, will I be fired?
751
00:32:17.940 --> 00:32:19.650
So, there's suspicions here.
752
00:32:19.650 --> 00:32:21.090
We have some information,
753
00:32:21.090 --> 00:32:22.080
and we went to the point,
754
00:32:22.080 --> 00:32:24.120
their objection is that the police
755
00:32:24.120 --> 00:32:25.290
will somehow be embarrassed.
756
00:32:25.290 --> 00:32:28.590
Now, police officers, in fact this year in Fall River,
757
00:32:28.590 --> 00:32:31.020
they're now carrying body-worn cameras
758
00:32:31.020 --> 00:32:33.510
and everything they do is being recorded.
759
00:32:33.510 --> 00:32:36.030
And those, too, can be requested as public records.
760
00:32:36.030 --> 00:32:39.870
We know, but not, right or wrong,
761
00:32:39.870 --> 00:32:42.840
we're not considering whether they can be embarrassed.
762
00:32:42.840 --> 00:32:44.040
That's privacy.
763
00:32:44.040 --> 00:32:48.090
We're dealing with the investigatory exemption.
764
00:32:48.090 --> 00:32:51.036
And I think it's important to know
765
00:32:51.036 --> 00:32:54.090
whether or not police officers
766
00:32:54.090 --> 00:32:56.970
in these misconduct investigations
767
00:32:56.970 --> 00:33:00.660
are already being videotaped.
768
00:33:00.660 --> 00:33:03.510
Because if they are already being videotaped,
769
00:33:03.510 --> 00:33:07.080
it would be hard to understand the appellant's argument
770
00:33:07.080 --> 00:33:09.380
that it's going to show them being videotaped.
771
00:33:11.250 --> 00:33:13.710
The state police apparently use videotapes.
772
00:33:13.710 --> 00:33:17.190
The other departments I'm familiar with use audio tape.
773
00:33:17.190 --> 00:33:19.470
And the audio tapes are provided,
774
00:33:19.470 --> 00:33:22.688
as I said, now, sometimes without the transcript.
775
00:33:22.688 --> 00:33:24.630
Mostly we prefer a transcript
776
00:33:24.630 --> 00:33:26.700
unless there's perhaps something that's unintelligible
777
00:33:26.700 --> 00:33:30.300
where we might really wanna listen to a recording.
778
00:33:30.300 --> 00:33:34.500
And I don't know that I've heard of these audio tapes
779
00:33:34.500 --> 00:33:36.240
somehow being disseminated to the public
780
00:33:36.240 --> 00:33:39.453
and causing embarrassment to police officers.
781
00:33:40.320 --> 00:33:41.340
And truthfully,
782
00:33:41.340 --> 00:33:43.140
most of the embarrassment would come from the words
783
00:33:43.140 --> 00:33:45.273
that they have said in the interview.
784
00:33:46.440 --> 00:33:49.770
To understand the investigation without being able to learn
785
00:33:49.770 --> 00:33:51.390
what the officers actually said.
786
00:33:51.390 --> 00:33:53.070
Now, if they said,
787
00:33:53.070 --> 00:33:55.230
this is a transcript of the report, we don't need-
788
00:33:55.230 --> 00:33:57.070
And just to be clear,
789
00:33:57.070 --> 00:33:58.080
and I don't wanna speak for everybody else,
790
00:33:58.080 --> 00:33:59.730
but I'm not concerned about embarrassment,
791
00:33:59.730 --> 00:34:02.520
I'm concerned about investigatory technique,
792
00:34:02.520 --> 00:34:03.663
not embarrassment.
793
00:34:06.360 --> 00:34:07.560
We take your point,
794
00:34:07.560 --> 00:34:09.810
but don't read in the embarrassment part.
795
00:34:09.810 --> 00:34:11.010
That's part of the,
796
00:34:11.010 --> 00:34:12.560
that's what they signed up for.
797
00:34:13.740 --> 00:34:16.860
We want to talk about showing investigatory techniques.
798
00:34:16.860 --> 00:34:19.920
The defendant here would have the burden to show that.
799
00:34:19.920 --> 00:34:22.260
They've done nothing to try to show that there was
800
00:34:22.260 --> 00:34:24.990
some sort of confidential investigatory techniques
801
00:34:24.990 --> 00:34:26.633
used in these interviews.
802
00:34:26.633 --> 00:34:29.040
And that's what we're gonna assess.
803
00:34:29.040 --> 00:34:31.920
That's the view that, and we cite in the brief,
804
00:34:31.920 --> 00:34:34.170
there are many articles about interviewing.
805
00:34:34.170 --> 00:34:35.370
You could find books about
806
00:34:35.370 --> 00:34:38.343
how to conduct an internal affairs investigation.
807
00:34:39.180 --> 00:34:41.820
There may be some very specific confidential techniques
808
00:34:41.820 --> 00:34:44.610
involving informants, maybe secret recordings,
809
00:34:44.610 --> 00:34:45.870
that sort of thing.
810
00:34:45.870 --> 00:34:46.800
That's not what this is.
811
00:34:46.800 --> 00:34:47.880
This is not about some kind
812
00:34:47.880 --> 00:34:50.310
of confidential investigative technique.
813
00:34:50.310 --> 00:34:51.660
They haven't raised it.
814
00:34:51.660 --> 00:34:53.430
And I think that, given that they didn't,
815
00:34:53.430 --> 00:34:54.870
they've had their opportunity,
816
00:34:54.870 --> 00:34:55.740
I don't think you could say,
817
00:34:55.740 --> 00:34:57.210
well, there might have been.
818
00:34:57.210 --> 00:34:58.043
There might have been.
819
00:34:58.043 --> 00:34:59.760
But that was up to them to present that.
820
00:34:59.760 --> 00:35:01.050
That's not an argument they're making.
821
00:35:01.050 --> 00:35:02.970
That's why I keep going back to their arguments.
822
00:35:02.970 --> 00:35:05.220
And I understand you're concerned about policy,
823
00:35:05.220 --> 00:35:07.500
but we have to look at the record
824
00:35:07.500 --> 00:35:08.460
that's been developed here.
825
00:35:08.460 --> 00:35:10.310
We went straight to summary judgment.
826
00:35:11.910 --> 00:35:13.620
Okay, thank you very much.
827
00:35:13.620 --> 00:35:14.762
Thank you.
828
00:35:14.762 --> 00:35:15.595
If there are further questions,
829
00:35:15.595 --> 00:35:18.870
obviously we'd like you to affirm the judge's decision
830
00:35:18.870 --> 00:35:19.830
and release the records,
831
00:35:19.830 --> 00:35:21.600
except those that are confidential,
832
00:35:21.600 --> 00:35:24.090
put under the amended statute.
833
00:35:24.090 --> 00:35:24.923
Thank you.
834
00:35:27.060 --> 00:35:28.413
Okay. Attorney Welch.
835
00:35:41.730 --> 00:35:44.280
Good morning, your honors. May it please the court.
836
00:35:44.280 --> 00:35:47.130
I'm Graham Welch and I represent Lawyers for Civil Rights
837
00:35:47.130 --> 00:35:48.120
in a group of amici
838
00:35:48.120 --> 00:35:50.580
who are deeply committed to racial justice
839
00:35:50.580 --> 00:35:52.980
and to greater transparency and accountability
840
00:35:52.980 --> 00:35:54.930
in law enforcement in the Commonwealth.
841
00:35:55.860 --> 00:35:57.480
We respectfully request that the court
842
00:35:57.480 --> 00:35:58.710
affirm the judgment below
843
00:35:58.710 --> 00:36:02.280
and maintain the law investigation misconduct carve-out
844
00:36:02.280 --> 00:36:05.040
to the privacy exemption to the Public Records Law
845
00:36:05.040 --> 00:36:06.360
as written.
846
00:36:06.360 --> 00:36:07.320
And just to start off,
847
00:36:07.320 --> 00:36:09.000
I would like to redirect this court's attention
848
00:36:09.000 --> 00:36:10.050
to the plain language
849
00:36:10.050 --> 00:36:12.300
of the misconduct investigation carve-out,
850
00:36:12.300 --> 00:36:13.830
which states in relevant part,
851
00:36:13.830 --> 00:36:17.850
in chapter four, section seven, clause 26C,
852
00:36:17.850 --> 00:36:20.047
that there is an exception requiring disclosure of
853
00:36:20.047 --> 00:36:21.960
"records related to a law enforcement
854
00:36:21.960 --> 00:36:23.367
misconduct investigation."
855
00:36:24.546 --> 00:36:27.423
And the District Attorney's Office argues
856
00:36:27.423 --> 00:36:29.580
that this was not a law enforcement misconduct investigation
857
00:36:29.580 --> 00:36:33.180
because first, this was not an investigation of misconduct.
858
00:36:33.180 --> 00:36:35.910
And second, there was no finding in misconduct.
859
00:36:35.910 --> 00:36:38.070
Accordingly, they argue, they note,
860
00:36:38.070 --> 00:36:40.020
that the carve-out does not apply
861
00:36:40.020 --> 00:36:41.880
and they're under no obligation to release records
862
00:36:41.880 --> 00:36:45.333
as a matter of law, despite clause 26C.
863
00:36:46.650 --> 00:36:49.080
First, just as a matter of statutory interpretation,
864
00:36:49.080 --> 00:36:51.480
this argument by the District Attorney is incorrect,
865
00:36:51.480 --> 00:36:53.520
and the carve-out applies regardless of whether
866
00:36:53.520 --> 00:36:55.740
there is a finding of misconduct.
867
00:36:55.740 --> 00:36:58.260
This ignores the clear language of clause 26C,
868
00:36:58.260 --> 00:37:00.300
which is written broadly to include
869
00:37:00.300 --> 00:37:01.530
all records that are related
870
00:37:01.530 --> 00:37:03.870
to a law enforcement misconduct investigation.
871
00:37:03.870 --> 00:37:05.370
There's no requirement in the statute
872
00:37:05.370 --> 00:37:07.620
that there needs to be a finding of misconduct.
873
00:37:07.620 --> 00:37:09.330
Similarly, there is no requirement
874
00:37:09.330 --> 00:37:12.570
that it needs to be an internal investigation,
875
00:37:12.570 --> 00:37:15.540
or conducted by the Internal Affairs Board,
876
00:37:15.540 --> 00:37:18.925
or any other carve-out is written broadly in that respect.
877
00:37:18.925 --> 00:37:20.220
Assume that we agree with you on that point.
878
00:37:20.220 --> 00:37:22.533
Can you address the investigatory exemption?
879
00:37:23.580 --> 00:37:26.430
What I would say as to the investigatory exemption
880
00:37:26.430 --> 00:37:31.020
is that the conflict is not necessarily
881
00:37:31.020 --> 00:37:32.880
with the privacy carve-out
882
00:37:32.880 --> 00:37:34.440
because of the fact that the privacy carve-out
883
00:37:34.440 --> 00:37:38.580
is written so broadly that any records
884
00:37:38.580 --> 00:37:40.800
that result from a misconduct investigation
885
00:37:40.800 --> 00:37:42.213
are included therein.
886
00:37:44.901 --> 00:37:46.890
And this is really what goes to the heart
887
00:37:46.890 --> 00:37:49.920
of the creation of the misconduct investigation,
888
00:37:49.920 --> 00:37:52.320
which was the 2020 act relating
889
00:37:52.320 --> 00:37:54.060
to justice, equity and accountability
890
00:37:54.060 --> 00:37:56.160
in law enforcement in the Commonwealth.
891
00:37:56.160 --> 00:37:57.660
Can I ask you then, a question?
892
00:37:57.660 --> 00:37:59.340
Are you, I'm confused.
893
00:37:59.340 --> 00:38:03.660
Are you saying that that carve-out for the privacy exemption
894
00:38:03.660 --> 00:38:05.400
applies to the investigatory?
895
00:38:05.400 --> 00:38:07.830
No, I'm just saying it's written incredibly broadly.
896
00:38:07.830 --> 00:38:09.810
Yeah, so, that was my question.
897
00:38:09.810 --> 00:38:11.360
So, assume you win on that one,
898
00:38:12.360 --> 00:38:15.390
then you also have to, or we also have to,
899
00:38:15.390 --> 00:38:17.307
look at the investigatory exemption
900
00:38:17.307 --> 00:38:20.400
and what you heard from some of the questions.
901
00:38:20.400 --> 00:38:23.910
At least, there's a concern about that.
902
00:38:23.910 --> 00:38:27.210
I wanna give you the opportunity to address that as well.
903
00:38:27.210 --> 00:38:28.813
Absolutely.
904
00:38:28.813 --> 00:38:31.740
And I think just my primary argument there
905
00:38:31.740 --> 00:38:35.460
is that the privacy section is so broad
906
00:38:35.460 --> 00:38:36.720
that the investigatory exception
907
00:38:36.720 --> 00:38:38.823
will not create an issue there.
908
00:38:40.633 --> 00:38:45.633
But I, and this kind of actually relates to the argument
909
00:38:47.010 --> 00:38:49.320
regarding the death investigation statute as well.
910
00:38:49.320 --> 00:38:52.620
Just to reiterate, this was an investigation into misconduct
911
00:38:52.620 --> 00:38:56.100
and there is no conflict with Chapter 38, section four
912
00:38:56.100 --> 00:38:58.293
on that front, as,
913
00:38:59.190 --> 00:39:02.250
which because that statute actually sets forth the protocol
914
00:39:02.250 --> 00:39:04.740
following a death in an investigation into one.
915
00:39:04.740 --> 00:39:07.860
And that there is no language that contradicts
916
00:39:07.860 --> 00:39:09.780
the misconduct investigation there.
917
00:39:09.780 --> 00:39:13.650
And in fact, in the District Attorney's December 21st, 2021
918
00:39:13.650 --> 00:39:15.630
report concerning the incident,
919
00:39:15.630 --> 00:39:17.100
they characterized their inquiry as one
920
00:39:17.100 --> 00:39:20.130
to determine whether "either Fall River police officer
921
00:39:20.130 --> 00:39:21.510
committed a crime."
922
00:39:21.510 --> 00:39:24.810
It's located in the record at page A36.
923
00:39:24.810 --> 00:39:27.090
Similarly, the court's discussed at-
924
00:39:27.090 --> 00:39:28.770
Counsel, I'm gonna have to short circuit you
925
00:39:28.770 --> 00:39:30.420
because we've asked you twice now,
926
00:39:30.420 --> 00:39:31.770
and I really need to get an answer
927
00:39:31.770 --> 00:39:33.360
to see what your position is.
928
00:39:33.360 --> 00:39:38.250
Are you saying that the privacy exemption is so broad
929
00:39:38.250 --> 00:39:41.220
that it swallows the investigatory exemption?
930
00:39:41.220 --> 00:39:42.510
No.
931
00:39:42.510 --> 00:39:44.880
So can, tell us specifically,
932
00:39:44.880 --> 00:39:48.300
why doesn't the stuff that's been withheld
933
00:39:48.300 --> 00:39:51.240
pursuant to the investigatory exception?
934
00:39:51.240 --> 00:39:52.560
Obtain.
935
00:39:52.560 --> 00:39:54.360
For that I would rely on the argument
936
00:39:54.360 --> 00:39:55.800
just made by Attorney Friedman,
937
00:39:55.800 --> 00:39:58.586
reiterate the arguments that he just made. Thank you.
938
00:39:58.586 --> 00:40:00.472
So, you have nothing further to add?
939
00:40:00.472 --> 00:40:01.305
No, I do not.
940
00:40:01.305 --> 00:40:04.137
Because you keep saying how the privacy exemption
941
00:40:04.137 --> 00:40:08.497
and the investigatory stuff that happened in, pardon me,
942
00:40:08.497 --> 00:40:11.220
the exception for police misconduct is so broad
943
00:40:11.220 --> 00:40:14.280
that there's no conflict with the investigatory.
944
00:40:14.280 --> 00:40:17.250
Because it sounds like you're saying it's so broad
945
00:40:17.250 --> 00:40:20.580
that even if there's an investigatory component to this,
946
00:40:20.580 --> 00:40:22.200
it still gets released,
947
00:40:22.200 --> 00:40:25.110
because the exception that was created
948
00:40:25.110 --> 00:40:28.020
to the privacy exemption is so broad that it has to.
949
00:40:28.020 --> 00:40:29.192
You're not saying that?
950
00:40:29.192 --> 00:40:30.025
No, no.
951
00:40:30.025 --> 00:40:33.790
I am saying that if the investigatory exception
952
00:40:33.790 --> 00:40:35.010
were to not apply,
953
00:40:35.010 --> 00:40:35.940
they could not be withheld
954
00:40:35.940 --> 00:40:37.860
on the basis of the privacy exception.
955
00:40:37.860 --> 00:40:39.610
Okay.
That's what I'm arguing.
956
00:40:40.560 --> 00:40:43.080
And if there are no further questions, I sent out my papers.
957
00:40:43.080 --> 00:40:44.080
Thank you very much.