Access to Police and Court Information
By Jack Authelet

There is a public purpose behind vigorous police reporting. Citizens have a right to be informed concerning the details of crimes being committed in their communities. Based on that information, they can make informed decisions pertaining to their own personal safety for the security of themselves, their families and property.

It is only through vigorous police reporting that citizens are able to make informed judgments as to the effectiveness of law enforcement efforts in their communities. This is how they judge how well they are being protected, and what they get in return for the money spent on the protection of life and property.

A vigilant media is also an essential part of the checks and balances that assures the community that the laws are administered fairly and apply equally to all citizens, that there are checks to prevent the abuse of power and that protection cuts both ways as police protect the rights of the victim as well as the rights of the perpetrator.

Included in this presentation are suggestions on following up police news stories with court dispositions that allows media to reflect the entire criminal justice system from enforcement, prosecution and disposition.

In the following data, G. L. references are to applicable sections of Massachusetts General Laws. References such as WBZ-TV4 vs. District Attorney for the Suffolk District note specific court cases in which the judge has set the precedent as to how the courts will rule on that particular subject. SPR notations refer to decisions by the Supervisor of Public Records.

Police Logs
"Each police department shall make, keep and maintain a daily log, written in a form that can be easily understood recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily log shall, unless otherwise provided by law, be public records available withhout charge to the public during regular business hours and at all other reasonable times provided, however, that any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public." G.L. c431 s98F amended January 1995

Access: There is no limit to the number of daily logs an individual may request to inspect. A custodian of public records is prohibited from inquiring into a requester's status or motivation. Any person (950 C.M.R. 32.05 (5) (1983) has a right to inspect any daily log, without charge, at any reasonable time. There is no requirement that the requester demonstrate a need for any of the requested information. G.L. c66 s10A (1984 ed.)

Privacy: Generally, the fact that one is a victim of a crime results in only a minimal invasion of privacy. For example, disclosure of the fact that one's automobile has been stolen or home broken into does not reveal "intimate details of a personal nature" that, as a key test of privacy, would be exempt from disclosure. Such events are commonplace and do not reflect on the victims in a negative or embarrassing manner. Thus, in a general sense, the identities of the victims of such crimes does not rise to the level of information protected by privacy exemptions. SPR94/208.

Other police reports which are public documents include:

Accident reports. (G. L. c.66 s10(a)

911 tapes
The statutory definition of "public records" does not distinguish between traditional paper records and computer or electronic records. (G. L. c4, s7(26) It provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." Therefore, a custodian is obligated to furnish copies of non-exempt portions of computerized or electronic information at the cost of reproduction unless otherwise provided by law and subject to the exceptions noted below.

Incident, Arrest, Investigation and Accident Reports are public records (G. L. c.4 s7(26) and maintained by the police department in a form that is readily available. Accordingly, immediate access to such information should be the general rule. (SPR88/04) Public Records Office.

Exemptions: Some public documents are exempt from disclosure by specific statute, and a complete listing will be provided elsewhere in this Access section. However, with specific reference to information relating to police activities, exemptions most commonly refer to limited items of information contained in a document, and not the document itself.

It is important to note this distinction and the specific reference to general law or to rulings by the Supervisor of Public Records which clearly state that the entire document is not privileged merely because it contains specific information which is protected from disclosure.

Investigatory exemption: The most frequently cited reason for non-disclosure of police information is Exemption F outlined in G. L. c4s7(26) (f) (1992 ed.) which states: "investigatory materials necessarily compiled out of public view by law enforcement or other investigatory officials, the disclosure of which materials prior to trial would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest."

The purpose of the exemption is to prevent the premature disclosure of the Commonwealth's case prior to trial and to prevent disclosure of confidential investigative techniques, etc. (WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 601 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. at 65). It can also be used to prevent revealing unique surveillance techniques, for example, disclosure of which would render it impossible to use them again.

However, custodians of public records are not justified in withholding disclosure of an entire document merely because it contains both exempt and public information. Custodians must disclose segregable portions of an otherwise exempt record. (G.L. c66s10(a) (1988 ed.)

Criminal Offender Record Information (CORI)
The public is frequently (and incorrectly) denied access to public information by police officers citing the provisions of CORI.

CORI has nothing to do with any ongoing criminal investigation. It is about closed criminal cases and sets out conditions for releasing information as to the conviction and custody status of persons previously convicted of crimes. Specifics of obtaining criminal history information under CORI follows the Access to Courts section.

Names of juveniles
The law also provides that the name of juvenile offenders (except as noted below) will be kept confidential in court and police department records. Thus such information contained in a daily log (or incident report, etc.) must be deleted before granting access to the public.

Recent changes in the law provide that the names of juveniles will be made public if the individual is charged with a capital crime (murder, rape, sexual assault).

The name of the juvenile is also available from the probation officer if the juvenile was 14 years of age or older at the time the crime was committed and has been adjudicated delinquent on two prior occasions for acts for which he would have been imprisoned if 17 or older.

Court proceedings for most juveniles remain closed. However, while a Prosecuting Officer's report of court dispositions may withhold from public view the name of the juvenile and any identifying information, the daily report of cases presented at court and their dispositions are public records and subject to disclosure.

The prosecution of juveniles accused of specific serious crimes has changed dramatically in recent years in response to the seriousness of crimes being committed and the dramatically younger age of the perpetrators.

Amendments to G. L. c119 s61 facilitates the transfer of juveniles to the adult court system. In 1990 the legislature rewrote s61 to mandate a transfer hearing in the case of juveniles over 14 charged with certain crimes of violence, including murder and manslaughter. (In the current case of Edward O'Brien, charged in the slaying of his neighbor, the crime was committed prior to the transfer hearing being mandated, and it took an act of the court to subject the defendant to a transfer hearing.)

The same law also made dramatic changes in the sentencing of juveniles charged with capital crimes, which will be outlined in the Access to Courts section.

Victims' names
Any mention in police records of the name of a victim of a rape or sexual assault is exempt from the mandatory disclosure provision of the Public Records Law.

The Rape Shield Law provides: That (any) portion of the records of... any police department... which contains the name of the victim (of) rape or assault with intent to rape... shall be withheld from public inspection..." G. L. c265 s24c (1992 ed.)

It should be noted that the law specifically refers to withholding "any portion of the record" which contains the name of the victim and not the entire report. Consequently, the report itself should be available without the names of the victim(s). This would satisfy the public's right to know details of the crime while still protecting the victim.

It is important to note that the law prohibits police or court officials from releasing the name of the victim. The law does not address publication of the name (if obtained by lawful means) as that would constitute prior restraint. While not legally prohibited from disclosure, however, Massachusetts news organizations have historically not published the names of victims (except in cases where the victim comes forward voluntarily).

Protection of witnesses, informants, etc.
Exemption F of Massachusetts general laws is also intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Bougas, 371Mass. at 62.

Consequently, there is no requirement that a law enforcement agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18; Also N. L. R. B. v. Robbins Tire and Rubber Company 437 U. S. 214, 224 (1978) (witness statements used in unfair labor practice cases are exempt without an inquiry into prejudice to a particular case); Center for National Policy Review on Race and Urban Issues v. Weinberger, 502 F. 2d 370, 373 (D.D.C. 1974).

However, any information contained in a witness statement which, if disclosed, would not create a grave risk of directly or indirectly identifying the witness is subject to mandatory disclosure. Globe Newspaper Company, 388 Mass. at 438 (explanation of "identifying details" and "grave risk of indirect identification") also Department of the Air Force v. Rose, 425 U. S. 352, 380 (1976) (application of this concept to federal Freedom of Information Act).

Appeal of denial of access
In the event that problems are encountered, either with gaining access to police records or instances where records are not being maintained in the manner prescribed by law, every attempt should be made to resolve the problem with the police department by speaking to the officer in charge of the shift and, if necessary, with the chief of police. They should be given the opportunity to correct the problem. If access is still denied, an appeal should be made in writing to the chief's appointing authority, such as the Board of Selectmen, etc. to give local officials the opportunity to bring the police department into line.

If the problem cannot be resolved at the local level, then there is justification to appeal to the appropriate state authorities.

Problems with access should be appealed to the Director of Public Records, Commonwealth of Massachusetts, Room 1719, One Ashburton Place, Boston, Massachusetts 02108. Telephone 617/727-2832.

If records are not maintained as prescribed by law, the Office of the District Attorney and ultimately the Office of the Attorney General has responsibility. The Office of the Attorney General is located at One Ashburton Place, Boston, Massachusetts 02108-1698. Telephone 617/727-2200.

Access to court information
Historically, proceedings in adult criminal cases in Massachusetts have been open to the public. Court records are public records, but for years, access to those records was blocked by the Criminal Offender Record Information (CORI) Act which sealed the index to closed court cases. You could only gain access if you had the docket number, but without the index, it was unavailable.

That portion of CORI was declared unconstitutional in 1993. Globe Newspaper Co. v. John E. Fenton Jr., Chief Administrative Justice of the Trial Courts of Massachusetts. As a result of that decision, any individual may enter any court in Massachusetts and have access to the alphabetical listing of defendants in closed criminal cases. That list provides the docket number on which to base a request to view the files on the case.

Current dispositions
It is possible to visit the court on a daily basis to check dispositions of cases adjudicated that day. For some newspapers, it is difficult to maintain that constant contact with the courts. If your police department uses a Prosecuting Officer (one officer presenting all the cases brought before the court by the police department of your town) it is possible to collect data from the report that your Prosecuting Officer will complete each day after returning from court.

The Prosecuting Officer compiles a list of the cases presented and the dispositions. Such a list, compiled as part of the officer's assigned duties is a public record which has already satisfied any limited restrictions on disclosure which could be imposed by the courts (i.e. names of juveniles, victims of sex crimes, etc.).

The public is entitled to that list of court cases and dispositions, and the list provides reporters an opportunity to follow up on court dispositions of arrests appearing in the newspaper.

Juveniles
Juveniles accused of capital crimes (murder, rape, sexual assault, etc.) are mandated to appear for a transfer hearing during which the court will decide if the defendant should appear in juvenile or adult court. G. L. c119 s61.

The amended statute also created a rebuttable presumption that any such juvenile charged with a capital crime presented a significant danger to the public and was not amenable to rehabilitation. The rebuttable presumption places the responsibility on the defense to prove the defendant is not a significant danger to the public and is amenable to rehabilitation. This requirement brings onto the record considerable information about the defendant and contributing factors to his delinquency which might not normally be presented during a trial.

The Commonwealth's burden to establish dangerousness and to disprove amenability was reduced from the clear and convincing evidence standard to a perponderance of the evidence standard.

The law also extended the period of incarceration for juveniles tried in the juvenile court found delinquent by reason of murder. The sentencing provisions call for a juvenile found delinquent by reason of first-degree murder to be committed for a maximum of 20 years, but not less than 15 years, at a secure facility of the DYS until age 21 and thereafter to the Dept. of Corrections. Sentencing for second-degree murder for persons tried in the juvenile system is a maximum of 15 years but not less than 10, with transfer to the DOC upon reaching the age of 21. Manslaughter: commitment to DYS until the age of 21.

Search Warrants become public documents once they are served and filed with the court.

Coroner's Reports: Judge's report and transcript are available if the District Attorney has certified no prosecution is proposed or if the trial of persons named in the report as responsible for the death is complete.

Sealed records: No court records can be sealed without a hearing. It is possible to leave a blanket request with the court to be notified each time a hearing is scheduled. If a case was sealed without a hearing, it is possible to open the case on appeal.