Leak of Report is Legal and Ethical

Leak of Report is Legal and Ethical

Kenneth M. O’Brien

 Here is the REPORT: http://tinyurl.com/4dpneru

There has been a great deal of posturing and pious sanctimony regarding release of the report of the State Police investigation on the subject of the leak of Executive Session minutes related to the negotiations revolving around the Registry of Motor Vehicles office.

There has been a misleading and false equivalency made between the leak of the Investigation Report and the original leak of Executive Session minutes that was being investigated. The leak of Executive Session minutes clearly violated state law. The leak of the investigation report was, in my opinion however, both legal and ethical.

Allow me to point out first, that this investigative report was not, in itself, Executive Session material.

Second, the transmittal letter from the District Attorney’s office did not proscribe its release, nor did it cite any statutory basis for its confidentiality.

Third, the “CONFIDENTIAL” stamp is of questionable origin. Who applied this stamp, and under what authority? This is certainly not a matter of national security nor, as pointed out, was it designated as the subject of any Executive Session.

The governing law is the Massachusetts Public Records Law.

The only relevant exemption to the Public Records Law is summarized as follows:


”Exemption (f) - The Investigatory Exemption

Exemption (f), the investigatory exemption, provides custodians a basis for

withholding:

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.64

The exemption allows investigative officials to withhold materials that could

compromise investigative efforts if disclosed. Exemption (f) does not,

however, create a blanket exemption for all records that investigative officials

create or maintain.65 A records custodian must demonstrate a prejudice to

investigative efforts in order to withhold requested materials. Accordingly, a

records custodian may withhold any information relating to an ongoing

investigation that could potentially alert suspects to the activities of

investigative officials. Similarly, records custodians may withhold

confidential investigative techniques indefinitely since their disclosure would

prejudice future law enforcement efforts.66

The Legislature also designed the exemption to allow investigative officials to

provide an assurance of confidentiality to private citizens so that they will

speak openly about matters under investigation.67 Accordingly, any details in

witness statements, which if released create a grave risk of directly or

indirectly identifying a private citizen who volunteers as a witness are

indefinitely exempt.68

For example: If a requested incident report contains witness statements, can

a police department use Exemption (f) to withhold the requested report in its

entirety? No. Generally, a police incident report may be released to a

requester after the records custodian has redacted the exempt portions from

the record, such as, medical information (Exemption (c)) and witness

statements (Exemption (f)). If, however, the requester is familiar with the

individuals who were involved in the incident(s) noted in the report, then the

department may withhold the entire record because it would not be possible

for the records custodian to redact the report in a manner as to avoid indirect

identification of the voluntary witness and complainant.

64 G. L. c. 4, § 7(26)(f).

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

v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990).

66 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976); see also United States

Department of Justice v. Landano, 113 S. Ct. 2014, 2020 (1993) (discussion of confidential

sources of information under the federal Freedom of Information Act.).

67 Bougas, 371 Mass at 62.

68 Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 438 (1983)

(explanation of “identifying details” and “grave risk of indirect identification”).”The only individual who might be considered a “private person” mentioned in this report is a reporter for a regional newspaper. I believe, and I leave it to your judgment and if needs be that of a court of law, that a widely known reporter for an established publication is not a “private person”.

Consequently, I do not believe that the release of this material, whatever its source, violated any relevant law.

The public, who paid for this investigation, is entitled to know its contents. They are also entitled to make a determination as to whether the information uncovered is, in fact, inconclusive.It may be added that the statement referring to an admission by a reporter does not relate to protection of a witness. The statement was quoted by the Town Manager, not directly made to the investigator by the reporter. As such, that statement would be regarded as “hearsay”.

However, there are exceptions to the allowance of “hearsay” as evidence. The most relevant in this case is the “declaration against interest”. The following are an explanation of that rule. I leave it to the reader to determine if the rule applies in determining the validity of the “evidence” provided as well as, in light of this information, the results of the investigation are, indeed. “inconclusive”.

“Declarations against interest are an exception to the rule on hearsay in which a person's statement may be used, where generally the content of the statement is so prejudicial to the person making it that they would not have made the statement unless they believed the statement was true." (http://en.wikipedia.org/wiki/Declaration_against_interest)

“FEDERAL RULES OF EVIDENCE

Published by the Legal Information Institute, Cornell Law School, Dec. 2010. For decisions interpreting the rules plus state evidence materials, visit the LII Evidence page.

(b) Hearsay exceptions.

(3) Statement against interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.”