Arrest records and mug shots are not secret under state law

pyleBy Jeffrey J. Pyle

Thanks to The Boston Globe’s Todd Wallack, we learned last week that the supervisor of records, charged with enforcing the Massachusetts public records law, has permitted police departments withhold arrest reports and mug shots from the public in their “discretion.” Unsurprisingly, police departments have exercised that “discretion” to shield the identities of police officers arrested for drunken driving while publicizing the arrests of other Massachusetts residents for the same crime.

Yesterday, Secretary of State William Galvin took to Jim Braude’s “Greater Boston” show on WGBH-TV (Channel 2) to defend the rulings. He pointed out that he had previously ruled that arrest reports to be public, but said he had to back down because another agency, the Department of Criminal Justice Information Systems (DCJIS), told him the records are secret under the “criminal offender record information” (CORI) statute. Former attorney general Martha Coakley shared that view, Galvin said, and the new attorney general, Maura Healey, has tentatively agreed.

But are they correct? Does the law allow the police officers to decide which arrest reports do and do not get released? The answer, thankfully, is no.

First some quick background. The public records law creates a presumption that all government records are public. Only if a specific, listed exemption applies can the government withhold documents, and those exemptions are supposed to be construed narrowly. Galvin relies on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” here, the CORI law. The CORI law does impose certain limits on the disclosure of “criminal offender record information,” but it limits that term to information “recorded as the result of the initiation of criminal proceedings and any consequent proceedings related thereto.”

The word “initiation” is important. As late as 2010, Galvin’s office held the commonsense view that a “criminal proceeding” is initiated with the filing of a criminal complaint. Arrest reports and mug shots are generated before criminal complaints are filed, so they’re presumptively public. But in 2011, the DCJIS (which administers the state’s CORI database) told Galvin it believed “initiation of criminal proceedings” means “the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court.” That necessarily precedes arrest and booking, so all arrest reports and mug shots are covered by CORI. This “interpretation” is now contained in a DCJIS regulation. Another regulation says that police can release CORI information surrounding an investigation if they think it’s appropriate to do so.

In the common parlance, however, “criminal proceedings” occur in court, and they begin with the filing of a criminal charge. We don’t typically think of an arrest without charges as involving a “proceeding.” Galvin seems to agree — his office’s rulings have said only that DCJIS believes “initiation” occurs earlier — but he has thrown up his hands and deferred to this odd “interpretation” of the CORI statute.

The thing is, Galvin isn’t bound by what DCJIS says. The public records law says that the supervisor of records is entitled to determine “whether the record requested is public.” The DCJIS’s regulation adopting this view is irrelevant, too, because as noted above, the public records law only exempts documents “specifically or by necessary implication exempted from disclosure by statute.” The Supreme Judicial Court ruled in 1999 that the “statutory” exemption doesn’t extend to mere regulatory enactments “promulgated under statutory authority,” even “in close cooperation with the Legislature.” Despite this ruling, just Wednesday, Galvin’s office again refused to order state police officer mug shots to Wallack on the ground that “[b]y regulation,” — not statute — they are exempt CORI documents.

Wallack’s reporting has led us to a momentous Sunshine Week in Massachusetts. We’ve seen unusual, coordinated editorials in major Massachusetts newspapers condemning the rulings, a letter published in the Globe, the Boston Herald and GateHouse Media newspapers (including The Patriot Ledger of Quincy and The Herald News of Fall River) signed by members of the Northeastern Journalism School faculty, and extensive coverage on the normally neglected subject of government transparency.

To his credit, Galvin is calling for reforms to the public records law, and Attorney General Healey has vowed to work with his office to strengthen transparency. Reforms are sorely needed, especially to require shifting of attorneys’ fees if a requester successfully sues. But in the meantime, Galvin can and should reconsider his misguided rulings on arrest records.

Jeffrey J. Pyle is a partner at the Boston law firm of Prince Lobel Tye and a trial lawyer specializing in First Amendment and media law.

Alex Beam on the three Dan Kennedys

Dan_Kennedy_Chivas_USA_2011

Dan Kennedy

Alex Beam has an amusing column in The Boston Globe today on people who have the same name or close to it — like Isiah Thomas and Isiaih Isaiah Thomas, or Alex Beam and, yes, Alex Beam.

This is not the first time Beam has gone there. Here’s a column he wrote in 2003 on three Dan Kennedys. And he didn’t even mention the soccer player. Then again, that Dan Kennedy was only 11 years old at the time.

Photo (cc) by Ryan Byrne and published under a Creative Commons license. Some rights reserved.

Northeastern j-school faculty calls for public-records reform

The state’s weak public-records law has long needed to be reformed. A lack of meaningful penalties for government agencies that refuse to turn over public records, outrageous fees and other problems make Massachusetts a laggard when it comes to transparency. Several years ago the State Integrity Investigation awarded Massachusetts a richly deserved “F” on public access to information.

Last week brought mind-boggling news from Todd Wallack of The Boston Globe, who reported that Secretary of State William Galvin’s office has issued rulings allowing certain formerly public records to be suppressed, including arrest reports of police officers charged with drunken driving. (Galvin later turned around and called for an initiative petition to put some teeth in the public-records law. Make of that what you will.)

Now the Globe, the Boston Herald and GateHouse Media Massachusetts have editorialized in favor of significant reform. The Massachusetts Freedom of Information Alliance, a group comprising the New England First Amendment Coalition, the ACLU of Massachusetts, the Massachusetts Newspaper Publishers Association and others, is calling for immediate action.

Seventeen of my colleagues and I at Northeastern’s School of Journalism lent our voices to the cause this week with a letter that has been published in the Globe, the Herald and (so far) two GateHouse papers: The Patriot Ledger of Quincy and The Herald News of Fall River. Because the Globe and the Herald were unable to run everyone’s names, I am posting them here. They include full-time as well as adjunct faculty:

  • Dan Kennedy, interim director
  • Chris Amico
  • Mike Beaudet
  • Nicholas Daniloff (emeritus)
  • Charles Fountain
  • Carlene Hempel
  • Joy Horowitz
  • Jeff Howe
  • William Kirtz
  • Dina Kraft
  • Jean McMillan Lang
  • Laurel Leff
  • Gladys McKie
  • Lincoln McKie
  • Bill Mitchell
  • Tinker Ready
  • James Ross
  • Alan Schroeder

This is Sunshine Week, an annual celebration of open government. In Massachusetts it’s time to let the sun shine in.

The Times goes easy on Bush’s support for the death penalty

Jeb Bush

Jeb Bush

Michael Paulson underplays Jeb Bush’s enthusiasm for the death penalty in a front-page New York Times story on Bush’s Catholicism. Paulson dwells on Bush’s opposition to abortion rights and to the comfort his adopted faith has brought him. For instance:

“It gives me a serenity, and allows me to think clearer,” Mr. Bush said as he exited the tile-roof church here on a recent Sunday, exchanging greetings and, with the ease of a longtime politician, acquiescing to the occasional photo. “It’s made me a better person.”

Paulson’s sole excursion into capital punishment comes in the sixth paragraph, and it is hedged with a “but”:

He differed from his church, significantly and openly, over capital punishment; the state executed 21 prisoners on his watch, the most under any Florida governor since the death penalty was reinstated in 1976. But he has won praise from Catholic officials for his welcoming tone toward immigrants and his relatively centrist positions on education — two issues in which he is at odds with the right wing of his party.

It will be interesting to see how this plays out as the presidential campaign gears up. For years, leaders of the Catholic Church have excoriated pro-choice politicians while going easy on those who are pro-life but who also favor the death penalty. (Yes, I realize how strange that sounds.) Pope Francis is surely as pro-life as his predecessors. But he may also prove to be more expansive in his definition of what it means to be pro-life, which could create problems for Bush. For instance, last fall Francis called for the abolition of capital punishment and of life imprisonment as well, according to the Catholic News Service.

As for Paulson, an excellent religion reporter who is also a Boston Globe alumnus, I wish he had found space for more than 33 words in a 2,200-word article to explain exactly how far from the Catholic Church’s teachings Bush has deviated.

Photo (cc) by Gage Skidmore and published under a Creative Commons license. Some rights reserved. Some rights reserved.

White House to suppress still more public records

This is Sunshine Week, an annual celebration of open government. And President Obama is celebrating — by shrouding more White House public records behind a veil of secrecy. OK, this only makes official what had been longstanding policy. But still.

Former Globe suitor Aaron Kushner steps down at the OC Register



Late Tuesday afternoon I was at the Los Angeles Times, interviewing people about the state of the Orange County Register, when suddenly the word came down.

Aaron Kushner, who’d bought the paper in 2012 and presided over a dizzying expansion and stomach-churning retrenchment, was stepping down from his executive role. His co-owner, Eric Spitz, was moving to a reduced role. And Richard Mirman, a former casino executive who’d been brought in as publisher last fall, would become president and chief executive officer of the Register’s parent company, Freedom Communications.

The Register covers the story here; the Times here; and OC Weekly here.

I had traveled to Southern California to do some reporting on Kushner’s stewardship of the Register. I visited the paper on Monday and sat in on a news meeting. I am — no kidding — scheduled to interview Kushner later today, a meeting that took weeks to set up. I’m going to keep my appointment and see if he or anyone else will see me.

Kushner, who tried to buy The Boston Globe and then the Portland Press Herald of Maine, was widely portrayed as either a savior of the newspaper business or a naive idealist after he assumed the reins at the Register. He emphasized print over digital and more than doubled the size of the newsroom. But his moves became increasingly hard to understand. He bought The Press-Enterprise of Riverside, then launched new dailies in Long Beach and Los Angeles.

Starting more than a year ago, the expansion was reversed. Layoffs and buyouts commenced. The LA and Long Beach papers were closed. And the Register’s plant in Santa Ana was sold for $27 million.

The situation right now is confusing and fluid. In reading the Times’ and the Register’s coverage, it seems that Kushner, Spitz and Mirman all have ownership shares. Media business analyst Ken Doctor tells the Times that Mirman’s job “is to steady the place and to get it ready for another owner.”

Strange days in Orange County for sure.

Bryan Bender leaves the Globe for a post at Politico

Bryan Bender

Bryan Bender

National security reporter Bryan Bender is leaving The Boston Globe to take a position as national security editor at Politico, where he will be reunited with executive editor Peter Canellos, a former Washington bureau chief for the Globe.

Bender is the author of the 2014 book “You Are Not Forgotten: The Story of a Lost World War II Pilot and a Twenty-First-Century Soldier’s Mission to Bring Him Home.” Romenesko has the memo from the Globe’s current Washington bureau chief, Christopher Rowland. (Warning: The Yankees figure into it.) I’ve got the message Bender sent to his fellow Globe staffers:

“How lucky I am to have something that makes saying goodbye so hard.”

Winnie the Pooh said that. As I hang up my hat after more than a dozen years at the Globe, it captures how bittersweet it is to bid adieu to all of you and this great institution.

I feel as though I am leaving part of my family, one that raised me as a journalist and taught me the meaning of integrity and hard work and that what we do in this business truly can be a public service.

I will always be grateful for the front row seat the Globe gave me to some of the defining events of our time. I had a heck of a lot of fun doing it. The adventure continues for me and I know I am prepared for what lies ahead only because of where I came from.

Cherished colleagues have come and gone over the years but I will never forget our Globe sister and brother, Elizabeth Neuffer and Anthony Shadid, who gave their lives giving voice to the voiceless. I was so darn lucky to have learned at their knee.

There are so many others to thank in Washington and Boston for this exhilarating, deeply meaningful ride. But no goodbyes to my Globe family. I reserve full visitation rights!

See you again.

Bryan