“If Massachusetts agencies could skirt the public records law by characterizing the receipt of documents as a loan, that would have been [an] invitation to a substantial amount of mischief.”
Government agencies in Massachusetts can’t withhold records from the public simply because those records originated with the federal government, according to a Massachusetts Supreme Judicial Court decision issued on New Year’s Eve.
The lawsuit that led to the high court’s decision was brought by Rahimah Rahim, whose son Usamaah was shot to death by a Boston police officer and FBI agent in 2015.
The Suffolk County District Attorney’s Office, which investigated the shooting, refused to provide Rahim with a number of FBI documents under the state public records law. The DA’s office argued the law didn’t apply because the records were a “loan” from the federal government. The Suffolk Superior Court sided with the DA’s office, but the SJC unanimously overturned the lower court’s ruling.
The SJC decision, written by Justice David Lowy, points to the plain language of the state public records law, which says that it applies to all records “made or received” by state and local government agencies. The DA’s office had argued it didn’t really receive the records since the FBI still claimed ownership over them. But the SJC found this interpretation nonsensical and “inconsistent with the purpose of the public records law.”
The SJC said that the FBI’s ownership claim is irrelevant because “[t]he public records law does not vest agencies with the authority to determine the statute’s scope by making interagency agreements. … That duty is the province of the supervisor of public records, the Superior Court, and, ultimately, this court.”
The SJC also rejected the argument that the DA’s office could not release the records because of the federal Freedom of Information and Privacy Acts. These federal laws only apply to the federal government, not state agencies like the DA’s office, according to the court.
“I think that the biggest and most important piece of the decision is the holding that documents given from a federal agency to a Massachusetts agency are subject to the public records law even if the receipt of those documents is characterized as a loan,” said Matthew Segal, the legal director of the American Civil Liberties Union of Massachusetts and a member of Rahim’s legal team. “If Massachusetts agencies could skirt the public records law by characterizing the receipt of documents as a loan, that would have been [an] invitation to a substantial amount of mischief.”
“[W]e’re in an important conversation in Massachusetts and across the country about police accountability, and we can’t have a meaningful conversation if documents about police shootings are needlessly kept from public view,” Segal continued. But the ruling has implications that go beyond the behavior of law enforcement: “It could be environmental issues, it could be COVID issues, issues about vaccines, and everything that our country is going through.”
Segal added: “Open government would have taken a really big hit if this decision had come out the other way … It would’ve been harder to do advocacy, it would’ve been harder to do journalism, it would’ve been harder to understand anything that goes on in Massachusetts.”
While the SJC decision avoids the nightmare scenario in which state and local governments can use agreements with the federal government to thwart public records requests, it still manages to illustrate the power the law gives to police and prosecutors to conceal their conduct from the public. Even though the court found that the state law applies to the FBI records, it largely agreed with the DA’s office that the records fall under the investigatory exemption, which allows government agencies to withhold many records that, if released, would hamper law-enforcement investigations.
The SJC examined an index of the FBI records created by the DA’s office and determined there was enough information to show that the exemption applies to 21 of the documents, including a five-page statement by an FBI agent about the shooting with an attached aerial photograph. However, the court said the DA’s office did not provide specific enough descriptions of 17 others.
One description from the index that the SJC singled out as being particularly vague said, “Hand-drawn diagram, dated June 2, 2015 — 1 page.”
“From this description, a court is able to discern little,” the SJC observed.
The SJC sent the case back to the Superior Court to determine whether these 17 records can be released. The DA’s office will need to revise the index to provide specific enough information about each record for the court to determine whether the investigatory exemption applies. If the DA’s office cannot provide specific descriptions without revealing sensitive information, it can instead provide copies of the records to the Superior Court so the judge can conduct a private review.
The DA’s office had argued that allowing state and local agencies to release documents that originated with the FBI would “chill” cooperation between local cops and feds. While the SJC didn’t say it was allowing the DA’s office to withhold any specific records for this reason, it left the door open for this justification to be used in the future. In a footnote, the court wrote, “We recognize that preserving comity between State and Federal law enforcement agencies may qualify as an interest protected by [the investigatory exemption] when the record custodian can demonstrate that disclosure of particular materials would so prejudice law enforcement efforts arising from State-Federal cooperation that secrecy is in the public interest.”
Suffolk County District Attorney Rachael Rollins “appreciates the direction provided by the Supreme Judicial Court,” according to Matthew Brelis, communications director for Rollins. “[T]he [DA’s] office will review the materials and comply with the Court’s request to provide a revised index.”
Segal, the ACLU lawyer, pointed to the challenge inherent in fighting for the release of public records: “One of the issues … is we haven’t seen the documents about which these characterizations have been made. It’s a tough position always for the requester, because you’re at the mercy of the government agency that is saying that something needs to be kept from public view.”
Usaamah Rahim, the 26-year-old man at the center of the disputed records, was killed by members of a Joint Terrorism Task Force comprised of Boston police officers and FBI agents in a Roslindale parking lot during June 2015. A year later, the Suffolk County District Attorney’s Office—then headed by Dan Conley—said the killing was justified and declined to file criminal charges against any of the cops or feds.
According to the DA’s office, the JTTF members were trying to stop Rahim so they could question him about his involvement in an ISIS-inspired plot to kill police officers when he drew a knife and walked toward them, prompting one police officer and one FBI agent to open fire. (The DA’s office released a surveillance video of the shooting a week after it took place, but the camera was so far away that it didn’t show whether Rahim was holding a knife.)
Brelis said that the investigatory exemption “is particularly important in unique cases like this one that address the intersection of public records obligations, continuing investigations into terrorist activities, and national security.”
Segal’s conclusion: “[W]hat we remain concerned about is a situation where records about the police shooting and killing someone are kept out of view … based on what the person who was shot was suspected of. I think we need to press forward on behalf of our client, Ms. Rahim, to make sure that there’s still meaningful transparency in this specific case.”
Separate from the public records lawsuit, Rahimah Rahim is suing the federal government and JTTF members for the death of her son. (She is being represented by different lawyers in her federal wrongful-death suit.)
Donna Patalano, general counsel for the DA’s office, argued the DA’s case. Patalano declined to comment.
Andrew Quemere has been making public records requests in Massachusetts for more than a decade. He writes The Mass. Dump Dispatch, a newsletter about public records. Subscribe to read about the latest developments in government transparency. Follow him on Twitter @andrewqmr.
