The Massachusetts Supreme Judicial Court will soon address what right the media has to access criminal records.  The case involves the request of the Boston Globe for a booking photograph of an officer after an arrest.  Attempts by the media to gain access to criminal files has been a big issue in the news recently.  One of the major issues in the Robert Kraft case will be whether the media will be allowed to see the surveillance video of the spa.  The case before the SJC involves similar issues of the right of public access versus the right of someone charged with a criminal offense not to be unduly shamed and harmed publicly by the publication of evidence of the criminal case.  Having a booking photo posted online, is in someway more damaging to someones career and reputation than a criminal conviction.  Normally, the media will access the police report and booking photographs through copying the court file which is public record; the case on appeal involved a clerk magistrate hearing where the complaint did not issue and another case where the court file was sealed.  Clerk magistrate hearing are not open to the public; however, another lawsuit by the Boston Globe is attempting to challenge the privacy of clerk magistrate hearings.

The Massachusetts Supreme Judicial Court will hear oral arguments next month to determine whether a Superior Court judgment allowing press access to certain criminal record information should be overturned. In February all parties in the case of Boston Globe Media v. Dept. of Criminal Justice Information Services, Massachusetts State Police, and the Boston Police Dept. filed their briefs before the SJC.

This case stems from a series of public records requests made by the Boston Globe. When a Globe reporter requested booking photographs of law enforcement officers who had been arrested in the summer of 2015, his request was denied by the Massachusetts State Police on the basis that the disclosure of those photos was prohibited by the CORI (Criminal Offender Record Information) Act. On a separate occasion when The Boston Globe requested an incident report involving a Massachusetts state district judge, the request was denied for the same reason.  

This led to The Boston Globe filing suit against the Boston Police Department in 2015, claiming that Massachusetts State Police was misinterpreting the CORI Act. The Superior Court agreed and held that booking photographs and police incident reports do not fall under the statute’s definition of “criminal offender record information” because they are created prior to the formal initiation of a criminal proceeding, and the CORI Act only applies to information created after a criminal proceeding has been initiated. The Superior Court also held that the Defendants (the government entities) did not have the authority to alter that legislative definition through its own departmental regulations.

In an effort to show the SJC that the Superior Court’s judgment in its favor was correct, The Boston Globe has presented several alternative arguments in support of their position that the press is entitled to these records. One of these alternative arguments is that 2010 amendments to the CORI Act actually provide broader public access to criminal record information than before. One such amendment removed the complete prohibition of access to records obtained from sources other than the BPD’s electronic database, which The Globe argues includes booking photographs and other similar information. Another alternative argument presented in the appellee’s (The Globe’s) brief is that booking photographs and incident reports both constitute “intelligence information”, which the statute indicates to be distinguishable from criminal history record information.

The Attorney General in response to the request argues that the CORI laws protect information relating to arrest from becoming public and that if these records were not protected by CORI it would undermine the purpose of the CORI reform in the recent crime bill.

In The Boston Globe’s favor is the fact that the Public Record Law strongly favors public access to government records for the sake of transparency. The appellee mentions in its brief to the SJC that recent amendments to the Public Record Law indicate that the burden is on the government to prove by a preponderance of the evidence that the record in question “may be withheld in accordance with state or federal law.” According to The Boston Globe, the appellants failed to meet that burden.

The Superior Court’s judgment did not hold that the Massachusetts State police and other departments should provide booking photographs and police incident reports available upon every request, rather that the CORI Act did not automatically prohibit public access to the types of records that were sought by The Boston Globe. In fact, the Court specifically indicated that there were many valid exceptions these types of information could fall under which would legally justify the denial of a public records request. The appellants argue in their briefs to the SJC that the Superior Court’s judgment simply imposes too narrow of a definition of CORI. The BPD maintains that because the statute specifies arrest information as being CORI, and because an arrest is the true initiation of a criminal prosecution, those records are protected from public dissemination by the CORI Act.

The SJC must now determine, based on the Superior Court record and the briefs submitted to it, whether the legislature’s intent was for records like booking photographs and arrest- and charge-related police reports to be blocked from public access by the CORI Act. Oral arguments for this case are scheduled for May 7.  I would expect the Massachusetts SJC to find that the CORI laws did not intend for public dissemination of booking photos relating to an arrest and that the CORI laws intended to preserve privacy and protect an individuals jobs prospects by shielding this information from public disclosure.  

To learn more about current issues in criminal defense and Constitutional law visit Attorney DelSignore Facebook page.