Mack v. District Attorney for the Bristol District

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SJC-13468

ERIC MACK vs. DISTRICT ATTORNEY FOR THE BRISTOL DISTRICT.

Suffolk. December 6, 2023. - April 26, 2024.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

Public Records. District Attorney. Privacy. Police Officer.

Statute, Construction. Practice, Civil, Summary judgment,

Burden of proof. Attorney at Law, Work product. Words,

"Misconduct."

Civil action commenced in the Superior Court Department on

February 2, 2022.

The case was heard by James Budreau, J., on a motion for

summary judgment.

The Supreme Judicial Court granted an application for

direct appellate review.

Mary Lee, Assistant District Attorney, for the defendant.

Howard Friedman for the plaintiff.

Graham D. Welch for Lawyers for Civil Rights Boston &

others.

The following submitted briefs for amici curiae:

Rebecca Jacobstein, Committee for Public Counsel Services,

Mason A. Kortz, Jessica J. Lewis, & Daniel L. McFadden for

Andrew Quemere & others.

Nick J. Erickson, of Colorado, Brian S. Fraser, of New

York, & David Milton for National Police Accountability Project.

2

Randall E. Ravitz, Special Assistant Attorney General, for

Massachusetts Peace Officer Standards and Training Commission.

David E. Sullivan, District Attorney, & Cynthia M. Von

Flatern, Assistant District Attorney, for district attorney for

the northwestern district.

GAZIANO, J. In this action, the plaintiff, Eric Mack, has

requested, pursuant to G. L. c. 66, § 10 (public records law),

certain records that relate to the fatal shooting of his

brother, Anthony Harden (decedent). A judge in the Superior

Court granted the plaintiff's motion for summary judgment,

mandating disclosure of the requested documents, absent a few

minor exceptions. Seeking to prevent the disclosure of these

records, the district attorney for the Bristol district

(district attorney's office) appealed from the judge's order and

asserts that each of the requested records is exempt from the

definition of "public records" under at least one of three

enumerated exemptions: the privacy exemption, the policy

deliberation exemption, and the investigatory exemption. See

G. L. c. 4, § 7, Twenty-sixth (c), (d), (f). The district

attorney's office further argues that, pursuant to G. L. c. 6E,

§§ 1 et seq., the Massachusetts Peace Officer Standards and

Training Commission (POST commission) has exclusive authority to

release officers' names. For the following reasons, we affirm

in part, reverse in part, and remand the case to the trial court

3

for a determination whether the investigatory exemption applies

to certain material.1

Background. We summarize the facts that are undisputed,

viewed in the light most favorable to the party against whom

summary judgment was entered -- here, the district attorney's

office. See HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326-

327 (2022).

1. The shooting. The following facts are taken primarily

from the final report of the district attorney's office on its

findings and conclusions regarding the officer-involved shooting

of the decedent (final DAO report), as well as from other

documents in the record.

On November 22, 2021, Officers Michael Sullivan and Chelsea

Campellone of the Fall River police department traveled to the

residence of a woman who had reported a domestic violence

incident.2 The woman reported to the officers that a man she was

1 We acknowledge the amicus briefs submitted by the district

attorney for the northwestern district; National Police

Accountability Project; Lawyers for Civil Rights Boston,

Citizens for Juvenile Justice, National Lawyers Guild, New

England First Amendment Coalition, and Strategies for Youth,

Inc.; and Andrew Quemere, Committee for Public Counsel Services,

and American Civil Liberties Union of Massachusetts, Inc. We

also acknowledge the amicus letter submitted by the POST

commission.

2 The officers were identified as "the male officer" and

"the female officer" in the final DAO report, pursuant to a

policy of the district attorney's office to refrain from

4

dating had choked her and struck her in the face with a stick

two days prior. After documenting her facial injuries, the

officers determined that there was probable cause to arrest the

man.

That man was the decedent. Having previously been charged

with domestic violence offenses and reckless endangerment of a

child, the decedent was confined to his residence by court order

at the time the woman reported the domestic violence incident.

The decedent resided with the plaintiff (his twin brother) and

his landlord.

A surveillance camera outside the decedent's residence

recorded Sullivan and Campellone arriving on the evening of

November 22. The officers spoke first with the decedent's

landlord, who permitted the officers to enter the residence and

directed them to the decedent's bedroom. Sullivan then went to

the decedent's bedroom and announced his presence to the

decedent from the doorway. After a brief exchange, the decedent

refused to step outside and speak with the officers. Sullivan

explained to the decedent that he was being placed under arrest.

The decedent reached for an item on his desk. Although

Sullivan was unable to see what the decedent grabbed, Campellone

publicly identifying officers involved in fatal shootings when

no criminal charges are issued. The officers were named,

however, in a search warrant affidavit and in the plaintiff's

complaint.

5

believed the metallic and pointed item in his possession was a

knife. The decedent quickly approached Sullivan, holding the

item in his right hand, and tried repeatedly to stab Sullivan in

the neck and head with the item. As Sullivan and the decedent

struggled, Campellone fired two shots from her service weapon,

and the decedent fell over.

Sullivan promptly requested emergency medical personnel,

who arrived at the decedent's residence minutes later, along

with several additional Fall River police officers. A police

sergeant who arrived on the scene following the shooting found

Sullivan and Campellone with their weapons drawn, pointing

toward the decedent's bedroom. Sullivan told the sergeant,

"That guy just tried to kill me with a knife!"

On entering the decedent's bedroom, the sergeant observed

the decedent laying on his stomach just inside the doorway,

groaning and moving his hands. The sergeant requested that the

decedent stop moving his hands and attempted to place handcuffs

on him. The decedent resisted at first, but ultimately,

officers were able to handcuff him and began administering

medical aid.

As officers worked to clear the scene for emergency

personnel, one officer found a knife on the floor near the

decedent. That same officer then moved the knife onto a table

6

in the bedroom to ensure the safety of incoming emergency

personnel.

The decedent was treated for his gunshot wounds and

transported to a hospital. Within thirty minutes from the time

Sullivan and Campellone first approached him in his bedroom, the

decedent was pronounced dead.

The plaintiff raises several questions regarding the final

DAO report. Chief among them is whether the decedent did in

fact possess a knife when he allegedly attacked Sullivan.

Various officers alternatively reported not seeing a knife at

all, observing a black-handled steak knife on the decedent's

desk, finding a black-handled steak knife on the floor near the

decedent's feet, or discovering a knife underneath the decedent

after the decedent was rolled over to administer medical aid.3

2. Investigation of the shooting. In coordination with

the State police, the district attorney's office conducted a

five-month long investigation into the decedent's death pursuant

to G. L. c. 38, § 4, which mandates that, in "cases of unnatural

or suspicious death . . . [t]he district attorney or his law

enforcement representative shall direct and control the

3 After conducting a search of the residence, officers

reported finding a total of three steak knives at various

locations in the decedent's bedroom.

7

investigation of the death."4 The purpose of this investigation

was to determine whether the two responding officers were

criminally responsible for the decedent's death. Investigators

interviewed four percipient witnesses and approximately twenty

additional civilian and law enforcement witnesses.

The district attorney's office either acquired or created

the following records while investigating the decedent's death:

videotaped interviews of Fall River police officers and fire

department paramedics who were involved in the incident

(videotaped public employee interviews); Sullivan's personnel

records; the decedent's autopsy and medical records; crime scene

reports listing items recovered from the apartment and detailing

subsequent forensic testing; video footage from surveillance

cameras on a neighboring property that was recorded between

November 20 and November 22, 2021 (home security videos);

twenty-six crime scene photographs depicting the decedent's

residence, including his bedroom, bathroom, kitchen, and shared

living spaces (crime scene photographs); a brief typewritten

document titled "Room Summary," which was authored by an

assistant district attorney and consists of several bullet

points that recount the factual events leading to the decedent's

death (room summary); and a homicide report prepared by the

4 No independent internal affairs investigation of the Fall

River police department was performed.

8

State police, which includes a nine-paragraph summary of the

events surrounding the decedent's shooting and appends summaries

of the videotaped public employee interviews (MSP homicide

report).5

While the investigation remained ongoing, the district

attorney's office prepared a preliminary report in December 2021

summarizing its findings and conclusions regarding the shooting

(preliminary DAO report).6 The preliminary DAO report includes

details on the decedent's background, a summary of the domestic

violence incident that prompted the officers' arrival at the

decedent's residence, a description of the events surrounding

5 The names of the officers being interviewed, among other

information, are redacted from the interview summaries appended

to the MSP homicide report. A draft of the MSP homicide report,

discussed infra, was completed in November 2021. The district

attorney's office released the final MSP homicide report online

to the public in April 2022. The most significant difference

between the final MSP homicide report and the draft MSP homicide

report is the "approved" status indicated at the top of the

document.

6 The preliminary DAO report mistakenly was referred to as

the final report in an initial e-mail message to the plaintiff.

On December 22, 2021, a staff member at the district attorney's

office sent an e-mail message to the plaintiff indicating that a

"final report" on the shooting was attached. However, this same

staff member later submitted an affidavit in which he explained

that he had incorrectly assumed that the report was final. In

addition to the preliminary DAO report that was sent to the

plaintiff and the final DAO report that was released to the

public, the district attorney's office prepared an earlier draft

preliminary DAO report, discussed infra, that was circulated

within the district attorney's office and "subject to attorney

review."

9

the shooting, an explanation of the Fall River police

department's policy on the use of force, and a conclusion that

there was "no basis" to find that Sullivan or Campellone had

committed a crime.

On completing its investigation, the district attorney's

office released the final DAO report to the public in April

2022. In addition to the information from the preliminary DAO

report detailed supra, the final DAO report includes

supplemental details on the decedent's domestic violence

offenses and child endangerment charges, as well as a summary of

the decedent's medical examination and autopsy report. The

final DAO report again concludes that there was "no basis" to

charge either of the two responding officers with a crime. The

district attorney's office also describes the Fall River police

department's use of force policy, which states that a "law

enforcement officer shall not use deadly force upon a person

unless de-escalation tactics have been attempted and failed or

are not feasible based on the totality of the circumstances."

The policy permits an officer to use deadly force if there is no

other reasonable alternative and the officer has an objectively

reasonable belief that deadly force is necessary to protect

herself or another. The district attorney's office found in its

report that Sullivan and Campellone did not violate the use of

force policy, reasoning that the officers had probable cause to

10

arrest the decedent and that it was reasonable to believe that

the decedent was attempting to use deadly force.

3. The public records request and responses. After

receiving a copy of the preliminary DAO report, the plaintiff

wrote to the district attorney's office on January 10, 2022,

requesting public records pursuant to G. L. c. 66, § 10 (b). In

his letter, the plaintiff requested (1) all documents relating

to any incidents that occurred between November 20 and November

22, 2021, involving Fall River police officers and the decedent;

(2) all audio recordings concerning the decedent between

November 20 and November 22, 2021; (3) all video recordings and

photographs that show the decedent or officers who interacted

with the decedent on November 22, 2021; and (4) all documents

relating to any investigations of incidents involving the

decedent that occurred between November 20 and November 22,

2021.

The district attorney's office responded in a letter dated

January 25, 2022, denying the plaintiff's request for public

records primarily because the investigation was ongoing. The

district attorney's office further explained its belief that

many of the records the plaintiff requested were exempt from the

definition of "public records" under the public records law and

thus would not be disclosed, even after the completion of the

investigation.

11

On April 1, 2022, the district attorney's office sent

another letter and the final DAO report to the plaintiff. This

letter included the website address of the district attorney's

office, where anyone could view the public records that the

district attorney's office identified as responsive to the

plaintiff's request. The district attorney's office explained

in its letter that certain records would not be disclosed to the

plaintiff. Relevant here, the district attorney's office

stated, "[a]ll recorded witness interviews and certain audio and

video recordings," some photographs, and the names of police

officers were being withheld under the privacy exemption. The

district attorney's office also indicated certain records were

being withheld under the investigatory exemption because their

production "would disclose investigatory techniques and

potentially hinder the effectiveness of future investigations."

Last, the district attorney's office claimed that records

constituting work product were being withheld under the policy

deliberation exemption.

4. The lawsuit. On February 2, 2022, the plaintiff

commenced an action in the Superior Court pursuant to G. L.

c. 66, § 10A, seeking injunctive and declaratory relief to

compel the disclosure of public records held by the district

attorney's office. In his complaint, the plaintiff sought the

12

same four types of records he had identified in his initial

public records request to the district attorney's office.

In September 2022, the plaintiff filed a motion for summary

judgment in which he requested an order from the Superior Court

compelling the district attorney's office to produce the

documents and information he had requested. The district

attorney's office filed both an opposition to the plaintiff's

motion and a cross motion for summary judgment, asserting that

it properly had withheld certain records and redacted certain

information that was not subject to disclosure under the public

records law. Specifically, the district attorney's office

maintained that the additional records the plaintiff sought were

exempt from disclosure under at least one -- and in some

instances, multiple -- of the following statutory exemptions

from the definition of "public records": (1) G. L. c. 4, § 7,

Twenty-sixth (c) (privacy exemption); (2) G. L. c. 4, § 7,

Twenty-sixth (d) (policy deliberation exemption); and (3) G. L.

c. 4, § 7, Twenty-sixth (f) (investigatory exemption).

The motion judge held a hearing in February 2023 at which

he reviewed several contested documents in camera. On March 10,

2023, the judge issued an order granting the plaintiff's motion

for summary judgment with minor exceptions and entered judgment

in favor of the plaintiff.

13

In April 2023, the district attorney's office appealed from

the judge's decision and the resulting judgment in favor of the

plaintiff. We then allowed an application for direct appellate

review submitted by the district attorney's office.

Discussion. On appeal, the district attorney's office

claims that the motion judge erred in granting the plaintiff's

motion for summary judgment because the requested records are

exempted from disclosure. The district attorney's office

asserts, as it did below, that the privacy exemption applies to

(1) the crime scene photographs; (2) the home security videos

(and still images taken from those video recordings); (3) the

names of police officers and other public employees, which were

redacted from the preliminary and final DAO reports; and (4) the

videotaped public employee interviews. Next, the district

attorney's office claims that the investigatory exemption

applies to (1) the videotaped public employee interviews; (2)

the home security videos; and (3) a list of interview questions

that a State police investigator asked the two responding

officers (investigator's interview questions). Finally, the

district attorney's office argues that the policy deliberation

exemption applies to (1) a draft of the MSP homicide report; (2)

a draft of the preliminary DAO report; and (3) the room summary.

We address each asserted exemption below.

14

1. Standard of review. We review a judge's decision on a

motion for summary judgment de novo. Matter of the Estate of

Jablonski, 492 Mass. 687, 690 (2023). "Summary judgment is

appropriate where there is no material issue of fact in dispute

and the moving party is entitled to judgment as a matter of law"

(citation omitted). Adams v. Schneider Elec. USA, 492 Mass.

271, 280 (2023). As summary judgment was entered against the

district attorney's office, we review the evidence in the light

most favorable to it. See HSBC Bank USA, N.A., 490 Mass. at

326-327.

2. Public records law. Two statutes govern public records

requests: G. L. c. 66, § 10 (a), which requires agencies, like

the district attorney's office, to provide access to public

records on request; and G. L. c. 4, § 7, Twenty-sixth, which

defines the scope of public records. See Rahim v. District

Attorney for the Suffolk Dist., 486 Mass. 544, 547 (2020). The

primary purpose of these statutes is to provide the public

"broad access to government records" and information on "whether

public servants are carrying out their duties in an efficient

and law-abiding manner" (citations omitted). Attorney Gen. v.

District Attorney for the Plymouth Dist., 484 Mass. 260, 262-263

(2020).

15

The Legislature broadly defined the term "public records."

See G. L. c. 4, § 7, Twenty-sixth.7 See also Boston Globe Media

Partners, LLC, v. Department of Pub. Health, 482 Mass. 427, 432

(2019). Paired with this broad definition is a statutory

presumption in favor of disclosure, with the burden placed on

the government agency to prove by a preponderance of the

evidence that a record may be withheld. See G. L. c. 66,

§ 10A (d) (1) (iv). See also Rahim, 486 Mass. at 549. The

Legislature has carved out various enumerated exemptions from

the definition of "public records," including the privacy

exemption, the policy deliberation exemption, and the

investigatory exemption. See G. L. c. 4, § 7, Twenty-sixth (c),

(d), (f). See also Attorney Gen., 484 Mass. at 263. These

7 Specifically, the term "public records" is defined,

subject to certain exemptions, as:

"all books, papers, maps, photographs, recorded tapes,

financial statements, statistical tabulations, or other

documentary materials or data, regardless of physical form

or characteristics, made or received by any officer or

employee of any agency, executive office, department,

board, commission, bureau, division or authority of the

commonwealth, or of any political subdivision thereof, or

of any authority established by the general court to serve

a public purpose, or any person, corporation, association,

partnership or other legal entity which receives or expends

public funds for the payment or administration of pensions

for any current or former employees of the commonwealth or

any political subdivision as defined in [G. L. c. 32,

§ 1]."

G. L. c. 4, § 7, Twenty-sixth.

16

exemptions are "strictly and narrowly construed" (citation

omitted). Boston Globe Media Partners, LLC, supra. Whether an

exemption applies requires a case-by-case analysis. See Rahim,

supra.

a. Privacy exemption. The privacy exemption applies to

"personnel and medical files or information and any other

materials or data relating to a specifically named individual,

the disclosure of which may constitute an unwarranted invasion

of personal privacy." G. L. c. 4, § 7, Twenty-sixth (c). In

2020, the Legislature passed "An Act relative to justice, equity

and accountability in law enforcement in the Commonwealth."

St. 2020, c. 253. Among other provisions, this act amended the

privacy exemption of the public records law and established the

POST commission to increase transparency in law enforcement

investigations. See St. 2020, c. 253, §§ 2, 30. See also

Letter from the Governor to the Senate and House (Dec. 10,

2020), 2020 Senate Doc. No. 2975 ("This bill makes law

enforcement more accountable for their conduct and provides the

public with direct insight into officers' performance history[,]

which not only creates greater transparency in law enforcement

but also gives departments greater ability to hire or promote

only qualified applicants"). Specifically, the act created a

new carve-out within the privacy exemption for "records related

to a law enforcement misconduct investigation." G. L. c. 4,

17

§ 7, Twenty-sixth (c), as amended through St. 2020, c. 253, § 3.

That is, records that would otherwise fall within the privacy

exemption but are "related to a law enforcement misconduct

investigation" may not be withheld from disclosure under this

exemption.

On appeal, the district attorney's office argues it

properly withheld the crime scene photographs, the home security

videos, the still images, the names of officers and public

officials, and the videotaped public employee interviews under

the privacy exemption. The district attorney's office claims

that disclosing the crime scene photographs would violate the

decedent's privacy rights because they reveal the decedent's

"unclean bathroom" and "unkempt home" with "trash bags piled up"

as well as "a disturbing notation on the [decedent's] calendar."

The district attorney's office also contends that releasing the

home security videos and still images would create an

unwarranted invasion of privacy for private individuals who

voluntarily provided the video recordings to the district

attorney's office as part of its investigation.8 Moreover, the

district attorney's office asserts that the names of officers

and public officials should be withheld to protect their

8 The plaintiff's request for video footage is limited to

video recordings that show either the decedent or the Fall River

police department officers.

18

privacy. Last, the district attorney's office argues that

withholding the videotaped public employee interviews and

instead releasing reports summarizing their substance properly

balanced the public interest "in knowing about the conduct of

the public employees" with "the privacy interests and safety of

the individuals involved."

The motion judge balanced the decedent's privacy interest

in the requested records against the public interest in

disclosure and found that the "equities substantially favor[ed]"

disclosure. See Champa v. Weston Pub. Sch., 473 Mass. 86, 96

(2015) ("The inquiry under the privacy exemption requires that

the seriousness of any invasion of privacy be balanced against

the public right to know" [quotation and citation omitted]). We

need not review the judge's application of the balancing test

because all records identified by the district attorney's office

fall under the "law enforcement misconduct investigation" carve-

out to the privacy exemption. Thus, the privacy exemption

cannot be used to withhold these records from disclosure.

The district attorney's office argues that "[w]here the

shooting was deemed to be justified in this death investigation

under [G. L. c. 38, § 4], and no criminal prosecution ensued,

the records are not 'law enforcement misconduct' records at

all." Essentially, the district attorney's office asserts that

unless an investigation ends in a finding that a law enforcement

19

officer engaged in misconduct, the carve-out to the privacy

exemption does not apply.

This contention of the district attorney's office finds no

support in the language of the statute. General Laws c. 4, § 7,

Twenty-sixth (c), provides, in relevant part, that the privacy

exemption "shall not apply to records related to a law

enforcement misconduct investigation."9 In questions of

statutory interpretation, we begin with the plain language of

the statute. See Commonwealth v. Escobar, 490 Mass. 488, 493

(2022). The ordinary meaning of "misconduct" is "[a]

dereliction of duty; unlawful, dishonest, or improper behavior,

esp[ecially] by someone in a position of authority or trust."

Black's Law Dictionary 1195 (11th ed. 2019). As the district

attorney's office has acknowledged, the purpose of the

investigation in this case was to determine whether the two

responding officers committed any crimes or violated the Fall

River police department's use of force policy in relation to the

decedent's death. A police officer's commission of a crime in

the performance of his or her official duty is both "unlawful"

9 The phrase "related to" is construed broadly. See, e.g.,

Marsh v. Massachusetts Coastal R.R., 492 Mass. 641, 651 n.21

(2023), petition for cert. filed, U.S. Supreme Ct., No. 23-669

(Dec. 21, 2023); Machado v. System4 LLC, 471 Mass. 204, 206

(2015).

20

and a "dereliction of duty." An officer's use of excessive

force is likewise a dereliction of that officer's duty.

General Laws c. 4, § 7, Twenty-sixth (c), clearly and

unambiguously states that the privacy exemption does not apply

to an "investigation" of law enforcement misconduct. To require

the investigation to end with a finding of police misconduct

places the cart before the horse and runs counter to the goals

of police accountability and transparency. Thus, the

investigation into the shooting of the decedent in this case was

a "law enforcement misconduct investigation." Accordingly, the

crime scene photographs, the home security videos, the still

images, the names of officers and public officials, and the

videotaped public employee interviews each "relate[] to a law

enforcement misconduct investigation" and may not be withheld

under the privacy exemption.10

b. Investigatory exemption. Under G. L. c. 4, § 7,

Twenty-sixth (f), any "investigatory materials necessarily

compiled out of the public view by law enforcement or other

investigatory officials" are exempt from the definition of

"public records" if disclosing such materials "would probably so

10That the privacy exemption does not apply to the

videotaped public employee interviews does not necessarily mean

that the interviews must be disclosed. As discussed infra, this

matter will be remanded for a determination whether the

investigatory exemption applies to the videotaped public

employee interviews.

21

prejudice the possibility of effective law enforcement that such

disclosure would not be in the public interest." This exemption

is "aimed at 'the avoidance of premature disclosure of the

Commonwealth's case prior to trial, the prevention of the

disclosure of confidential investigative techniques, procedures,

or sources of information, the encouragement of individual

citizens to come forward and speak freely with police concerning

matters under investigation, and the creation of initiative that

police officers might be completely candid in recording their

observations, hypotheses and interim conclusion.'" Reinstein v.

Police Comm'r of Boston, 378 Mass. 281, 289 (1979), quoting

Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).

This is not a blanket exemption that applies to any record

kept by a police department for an investigation. See Bougas,

371 Mass. at 65. Instead, we analyze whether this exemption

applies on a case-by-case basis. See Globe Newspaper Co. v.

Police Comm'r of Boston, 419 Mass. 852, 859 (1995). In doing

so, we ask whether a requested disclosure "would be so

prejudicial to effective law enforcement that it is in the

public interest to maintain secrecy." Id. Where an

investigation is closed, this fact alone "does not automatically

terminate the applicability" of the investigatory exemption.

Rahim, 486 Mass. at 552.

22

The district attorney's office argues that the

investigatory exemption applies to the videotaped public

employee interviews. It reasons that disclosing these video-

recorded interviews would chill prospective witnesses, both

private and public, from agreeing to video-recorded interviews

in the future.11 The district attorney's office also claims that

release of these interviews may reduce the likelihood that

officers are "completely candid" when questioned.

We previously have examined the application of the

investigatory exemption to the statements of law enforcement

officials. For example, in Globe Newspaper Co., 419 Mass. at

864-865, we held that statements of police officers compiled

during internal affairs and criminal investigations were not

subject to the investigatory exemption. Given the available

summaries of the internal affairs investigation, the evident

public purpose behind the investigation, and prior publicity of

these summaries, any harmful effect that disclosure might have

had was diminished. See id. Because of the previous publicity,

disclosing the officers' statements was unlikely to decrease the

likelihood that officers would be completely candid in recording

11In addition to potentially chilling future witnesses, the

district attorney's office had claimed that the release of these

videotapes "might also indirectly reveal" the identities of the

two officers who were present at the shooting. However, as

discussed supra, the names of these two officers were revealed

in a trooper's affidavit and thus already known to the public.

23

their observations, especially where the possibility of public

disclosure was "surely apparent" to the officers at the time

they made these statements. See id.

In Rahim, 486 Mass. at 554-555, we held that the

investigatory exemption applied to certain records that a

district attorney acquired during an investigation into a fatal

shooting by law enforcement officials. The district attorney

identified one withheld document as a five-page statement signed

by a Federal agent "concerning actions taken and observations

made regarding the shooting," and which "include[d] a one page

annotated aerial photograph." Id. at 554. While "succinct,"

this description successfully demonstrated that the records

sought identified at least one law enforcement official,

described the official's "observations, hypotheses, and interim

conclusion," and included a photograph related to these

observations. Id., quoting Bougas, 371 Mass. at 62. We

remanded to the Superior Court for a determination whether the

investigatory exemption applied to other material that was

inadequately described and instructed the district attorney to

either provide a revised description with "enough details about

the nature and scope of the materials" or, where "fuller

descriptions" were not possible, to seek in camera review of the

material at issue. Rahim, supra at 555-556.

24

Here, the district attorney's office contends that

disclosure of the videotaped public employee interviews would

hamper investigation by discouraging witnesses -- both private

and public -- from agreeing to video-recorded interviews in the

future. However, the video recordings at issue do not depict

interviews of private citizens but rather the interviews of

seven Fall River police officers and two paramedics. Where we

previously have stated that the investigatory exemption is aimed

at "the encouragement of individual citizens to come forward and

speak freely with police" (emphasis added), Bougas, 371 Mass. at

62, we only have considered this factor for private individuals

-- not public officials performing duties in their official

capacity. See Rahim, 486 Mass. at 551; Globe Newspaper Co., 419

Mass. at 859; District Attorney for the Norfolk Dist. v.

Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney

for the Suffolk Dist., 408 Mass. 595, 603 (1990); Reinstein, 378

Mass. at 289.

Although the district attorney's office asserted this

exemption before the motion judge, the judge did not address

whether the investigatory exemption applied to these interviews.

Therefore, we remand to the Superior Court to address whether

the district attorney's office has met its burden to show that

25

the investigatory exemption applies.12 If the judge finds that

the investigatory exemption applies to any record on remand,

then the district attorney's office may withhold that record

even if another exemption does not apply. See Globe Newspaper

Co., 419 Mass. at 857.

c. Policy deliberation exemption. Under the policy

deliberation exemption, "inter-agency or intra-agency memoranda

or letters relating to policy positions being developed by [an]

agency" are exempt from the definition of "public records";

however, "reasonably completed factual studies or reports on

which the development of such policy positions has been or may

12The district attorney's office has also asserted that the

investigatory exemption applies to the investigator's interview

questions and to the home security videos. The motion judge did

not address whether this exemption applies to the interview

questions. Therefore, we also remand so that the judge may

determine whether the district attorney's office met its burden

to show the investigatory exemption applies to the

investigator's interview questions. The judge did, however,

consider whether the release of the home security videos would

"interfere with future investigations." The district attorney's

office claims that releasing the home security videos will

discourage citizens from coming forward and volunteering

information, harming future investigations. We are not

convinced. As discussed supra, the home security videos depict

public employees, not private citizens, performing their duties

in public areas. We hold that the district attorney's office

has failed to demonstrate how the disclosure of these video

recordings "would probably so prejudice the possibility of

effective law enforcement that such disclosure would not be in

the public interest." See G. L. c. 4, § 7, Twenty-sixth (f).

Therefore, the district attorney's office has not met its burden

of showing that the investigatory exemption applies to the home

security videos.

26

be based" are not exempt. G. L. c. 4, § 7, Twenty-sixth (d).

See Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449

Mass. 444, 457 (2007) (policy deliberation exemption applies to

"advisory opinions, recommendations and deliberations

compromising part of a process by which governmental decisions

and policies are formulated" [citation omitted]). This

exemption protects "open, frank intra-agency and intra-agency

deliberations regarding government decisions." DaRosa v. New

Bedford, 471 Mass. 446, 457 (2015). See General Elec. Co. v.

Department of Envtl. Protection, 429 Mass. 798, 807 (1999),

overruled in part by DaRosa, supra at 453 (purpose of policy

deliberation exemption "is to foster independent discussions

between those responsible for a governmental decision in order

to secure the quality of the decision").

In applying this exemption, the court utilizes the work

product doctrine and looks to Mass. R. Civ. P. 26, as amended,

474 Mass. 1401 (2016), for guidance. See DaRosa, 471 Mass. at

458. There are two forms of work product: opinion and fact.

Id. Opinion work product is material that contains "the mental

impressions, conclusions, opinions, or legal theories of an

attorney or other representative of a party concerning the

litigation." Id. at 459, quoting Mass. R. Civ. P. 26 (b) (3).

All other work product is considered fact work product. See

Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 128 (2021)

27

(Facebook). Absent a "highly persuasive showing" otherwise,

opinion work product is exempt from disclosure (citation

omitted). DaRosa, supra. Conversely, fact work product must be

disclosed "if it is a 'reasonably completed factual stud[y] or

report[] on which the development of [an agency's] policy

positions has been or may be based.'" Id., quoting G. L. c. 4,

§ 7, Twenty-sixth (d).13 Where a reasonably completed factual

study or report is intermingled with opinion, "a purely factual

section of the report might fall outside [the policy

deliberation exemption] but a discussion or analysis section

interwoven with facts would be protected from disclosure."

DaRosa, supra at 460.

Here, the district attorney's office identifies three

documents that it claims are work product to which the policy

deliberation exemption applies: (1) a draft of the MSP homicide

report, (2) a draft of the preliminary DAO report, and (3) the

room summary. The motion judge found that these three records

were fact-based documents to which the policy deliberation

exemption did not apply. We agree that the district attorney's

office has not proven that the policy deliberation exemption

13The policy deliberation exemption is a "time-limited

protection" (citation omitted). DaRosa, 471 Mass. at 455. It

"protects documents from disclosure only while policy is 'being

developed,' that is, while the deliberative process is ongoing

and incomplete" (quotation and citation omitted). Id. at 459

n.16.

28

applies to either the draft of the MSP homicide report or the

room summary. The draft of the MSP homicide report includes

only factual details of the decedent's death. Similarly, the

room summary, written by an assistant district attorney,

contains only facts relating to the layout of the decedent's

residence, a brief summary of the conversation between the

decedent and the officers prior to the shooting, and a

description of the altercation between the decedent and the

officers. As neither document contains any "mental impressions,

conclusions, opinions, or legal theories," these records are not

opinion work product. See DaRosa, 471 Mass. at 459. Further,

the district attorney's office has not met its burden of showing

that these documents are not reasonably completed factual

studies or reports.

The draft of the preliminary DAO report stands on somewhat

different footing. Like the other two records at issue, the

motion judge correctly noted that this draft report primarily is

comprised of factual detail. For example, the draft report

includes -- much like the preliminary DAO report and the final

DAO report, both of which were released to the public --

sections that detail the decedent's criminal background, the

initial domestic violence report to officers by the decedent's

girlfriend, and the shooting. Where sections of the draft

report are identical to the corresponding sections in either of

29

the publicly available reports, the district attorney's office

has effectively waived the work product privilege with respect

to these sections. See Facebook, 487 Mass. at 135 (party cannot

claim protection for opinion work product for information it has

released publicly).

However, the draft report is not completely identical.

Comparing the different iterations of the DAO report reveals

that certain sections of the draft report, labeled "Applicable

Laws" and "Conclusion," are different from the corresponding

sections in the publicly available reports. These sections also

contain discussions of the law and legal analysis addressing

whether the responding officers had committed any crime and

whether the shooting was justified. Because these sections

differ from their publicly available counterparts, they may

convey the "mental impressions, conclusions, opinions, or legal

theories" as to the criminal responsibility of the officers.

See Facebook, 487 Mass. at 127. Moreover, that the final DAO

report was voluntarily released to the public does not mean that

these sections of an earlier draft report are not protected work

product. See Gilhuly v. Johns-Manville Corp., 100 F.R.D. 752,

755 n.4 (D. Conn. 1983) ("Disclosure of a final draft does not

automatically waive the work product privilege of prior

drafts").

30

Therefore, it was error for the judge to order disclosure

of the entire draft preliminary DAO report. While the district

attorney's office has not met its burden of showing that the

entire draft report is not a reasonably completed factual study

or report, see DaRosa, 471 Mass. at 460, the district attorney's

office has met its burden of showing that the policy

deliberation exemption applies to the "Applicable Laws" and

"Conclusion" sections of the draft report. These two sections

are severable from the purely factual sections of the draft

report. Therefore, the "Applicable Laws" and "Conclusion"

sections of the draft report may be redacted, and the remaining

factual sections of the report must be disclosed.

3. General Laws c. 6E. The district attorney's office

separately claims that the POST commission has exclusive

authority under G. L. c. 6E, §§ 1 et seq., to release publicly

the names of police officers in connection with any

investigations, thereby taking such information out of the

purview of the public records law.14 In support, the district

attorney's office points to the level of detail within G. L.

c. 6E, §§ 1 et seq., which it argues creates a clear implication

that the Legislature intended the POST commission to be the

14 The POST commission was created through the same act that

added the carve-out for law enforcement misconduct

investigations to the privacy exemption. See St. 2020, c. 253,

§ 30 (effective July 1, 2021).

31

exclusive avenue for members of the public to access law

enforcement officers' names.

We turn to the plain language of the statutory scheme at

issue, which established the creation of the POST commission.

See G. L. c. 6E, § 2. Among other provisions, the statutory

scheme grants the POST commission the authority to "establish

uniform policies and standards for the certification of all law

enforcement officers," G. L. c. 6E, § 4; "to investigate officer

misconduct," G. L. c. 6E, § 8; and to "promulgate rules and

regulations for the use of force by law enforcement officers,"

G. L. c. 6E, § 15. Notably absent from this statutory scheme is

any provision granting the POST commission exclusive authority

to determine whether to release the names of officers involved

in law enforcement misconduct investigations. "We do not read

into the statute a provision which the Legislature did not see

fit to put there, nor add words that the Legislature had the

option to, but chose not to include" (citation omitted).

Commonwealth v. Dones, 492 Mass. 291, 297 (2023). Based on the

plain language of the statute, the statutory construction

argument of the district attorney's office fails, and we need

not proceed any further. See Commonwealth v. Narvaez, 490 Mass.

807, 809 (2022) ("we follow the plain language when it is

unambiguous and when its application would not lead to an absurd

32

result, or contravene the Legislature's clear intent" [citation

omitted]).15

Conclusion. Because the "Applicable Laws" and "Conclusion"

sections of the draft preliminary DAO report are exempt from

disclosure, we reverse the motion judge's order with respect to

the mandated disclosure of these sections. We also reverse

insofar as the order requires disclosure of the videotaped

public employee interviews and the investigator's interview

questions, and we remand this case to the Superior Court for

further proceedings to determine whether the investigatory

exemption applies to the interviews or the investigator's

interview questions. In all other respects, the order and

judgment in favor of the plaintiff are affirmed.16

So ordered.

15Insofar as the district attorney's office claims that,

because of the comprehensive nature of G. L. c. 6E, §§ 1 et

seq., the public records law impliedly was repealed to the

extent that it allows for the disclosure of officers' names,

this argument also fails because we do not see an

"irreconcilable conflict" between the two statutory schemes

(citation omitted). See Concord v. Water Dep't of Littleton,

487 Mass. 56, 61 (2021).

16In his brief, the plaintiff has requested that we award

him appellate attorney's fees and costs. We decline to do so.

BUDD, C.J. (concurring). I agree that this matter should

be remanded to allow the judge to address whether the

investigatory exemption to the public records law applies to the

videotaped interviews of public employees, an issue the judge

did not address. See G. L. c. 66, § 10A (d) (1) (iv);

G. L. c. 4, § 7, Twenty-sixth (f).1 I write separately to note

that although the district attorney for the Bristol district

(district attorney's office) argues that records of police

interviews fall under the exemption because disclosure could

disincentivize officers from being candid, attending to this

concern is not in keeping with the letter or spirit of the

public records law.

The district attorney's office's argument stems from this

court's discussion of the investigatory exemption's possible

aims in Bougas v. Chief of Police of Lexington, 371 Mass. 59

(1976). In that case, the court concluded that the records the

plaintiffs sought were exempt from disclosure under the language

1 General Laws c. 4, § 7, Twenty-sixth (f), exempts from

disclosure

"investigatory materials necessarily compiled out of the

public view by law enforcement or other investigatory

officials the disclosure of which materials would probably

so prejudice the possibility of effective law enforcement

that such disclosure would not be in the public interest."

2

of G. L. c. 4, § 7, Twenty-sixth (f). Id. at 62.2 In discussing

the statute generally, the court also listed possible reasons

that the Legislature provided for an investigatory exemption:

"Included among the purposes in providing this exemption

would be the avoidance of premature disclosure of the

Commonwealth's case prior to trial, the prevention of the

disclosure of confidential investigative techniques,

procedures, or sources of information, the encouragement of

individual citizens to come forward and speak freely with

police concerning matters under investigation, and the

creation of initiative that police officers might be

completely candid in recording their observations,

hypotheses and interim conclusions" (emphasis added).

Id.

This court since has repeated the Bougas language when

discussing the investigatory exemption, including its reference

to officer candor, on several occasions. See, e.g., Rahim v.

District Attorney for the Suffolk Dist., 486 Mass. 544, 551,

554-555 (2020); Reinstein v. Police Comm'r of Boston, 378 Mass.

281, 289 (1979). However, in only two subsequent cases has this

court specifically addressed the argument. In Rahim, supra,

this court concluded, without elaboration, that a district

2The plaintiffs in that case sought police reports of an

incident that allegedly involved police misconduct. Bougas, 371

Mass. at 60-61. Noting that the records contained "complete

accounts of police investigatory efforts including the police

officer's own observations of the incident in question,

statements taken from witnesses, additional information obtained

from other sources, some confidential, and leads and tips to be

pursued," the court concluded that the requested reports fell

under the investigatory exemption because they were "prepared by

police officers in connection with their investigation of an

incident which led to criminal proceedings." Id. at 62.

3

attorney's office's justification as to why one record could be

shielded under the investigatory exemption was "sufficient,"

where the record both displayed "the identity" of a Federal

Bureau of Investigation agent and contained that agent's

"observations, hypotheses, and interim conclusions" about the

incident. Id. at 554-555, citing Bougas, 371 Mass. at 62. In

the other case, Globe Newspaper Co. v. Police Comm'r of Boston,

419 Mass. 852, 864 (1995), the court directly considered the

effect that the disclosure of the police statements at issue

might have on officer candor, concluding that disclosure would

not "seriously threaten" it. Moreover, in Globe Newspaper Co.,

the court appeared to question the premise of the Bougas court's

concern by noting that other courts have concluded "with some

persuasiveness" that, rather than deter officer candor, "limited

disclosure of investigatory materials might promote candor."

Id. at 865 n.13.3

Presuming that disclosure would be detrimental to officer

candor provides police departments (and other agencies) with a

ready excuse to oppose the disclosure of information, which

3 In Globe Newspaper Co., 419 Mass. at 865 n.13, the court

cited three Federal cases that emphatically rejected the

argument that police records may be withheld due to the same

concern regarding officer candor. See id., citing Kelly v. San

Jose, 114 F.R.D. 653, 664-666 (N.D. Cal. 1987); Wong v. New

York, 123 F.R.D. 481, 483 (S.D.N.Y. 1989); and King v. Conde,

121 F.R.D. 180, 193 (E.D.N.Y. 1988).

4

otherwise would be available to the public, based on a

speculative, intangible, and largely unverifiable concern. Cf.

Kelly v. San Jose, 114 F.R.D. 653, 664 (N.D. Cal. 1987) ("the

premise that . . . investigating officers will be less

forthright in expressing their opinions if there is a risk of

disclosure[] is empirically unsupported and very debatable").

As other decisions favorably cited by this court have

acknowledged, see Globe Newspaper Co., 419 Mass. at 865 n.13, if

anything, "the stronger working hypothesis is that fear of

disclosure is more likely to increase candor than to chill it,"

King v. Conde, 121 F.R.D. 180, 193 (E.D.N.Y. 1988).4

An approach that allows concerns for the effect that

disclosure might have on officer candor to drive disclosure

determinations cannot be squared with the public records

statute's "presumption" of disclosure, against which exemptions

must be "strictly and narrowly construed" (citations omitted).

Boston Globe Media Partners, LLC v. Department of Pub. Health,

482 Mass. 427, 432 (2019). It also conflicts with one of the

primary purposes of the public records law, i.e., empowering the

4 Notably, we are not aware of any case since Bougas was

decided in which the Commonwealth demonstrated that concern for

police candor was a viable reason to shield police testimony,

including in the instant case. See G. L. c. 66,

§ 10A (d) (1) (iv) ("the burden shall be on the defendant agency

or municipality to prove, by a preponderance of the evidence,

that such record or portion of the record may be withheld in

accordance with [S]tate or [F]ederal law").

5

public to ensure that "public servants are carrying out their

duties in an efficient and law-abiding manner." Attorney Gen.

v. District Attorney for the Plymouth Dist., 484 Mass. 260, 262-

263 (2020), citing Attorney Gen. v. Collector of Lynn, 377 Mass.

151, 158 (1979). Transparency is especially critical in the

context of community members' interactions with law enforcement.

See District Attorney for the Plymouth Dist., supra at 263

(transparency is "an essential ingredient of public confidence

in government" [citation omitted]). See also St. 2020, c. 253,

§ 2 (amending public records law to clarify that "records

related to a law enforcement misconduct investigation" shall not

be exempt from disclosure under privacy exemption).

Accordingly, I am doubtful of the arguments to that effect

raised by the district attorney's office and wary of embracing

the idea, despite its appearance in some of our cases.