THE SUPREME JUDICIAL COURT is wading into a drawn-out public records fight stemming from the Bristol County district attorney’s refusal to release documents, recorded interviews, and the names of officers involved in the fatal shooting of 30-year-old Anthony Harden – a Black man who was shot and killed in his bedroom by a Fall River police officer responding to a domestic assault complaint in late 2021. 

Harden’s brother, Eric Mack, began seeking documents related to Harden’s shooting last year under public records law. The case is one of several lawsuits underway or promised by members of Harden’s family, who have publicly pushed back on law enforcement’s claim that the shooting was justified after Harden allegedly repeatedly attempted to stab the officer’s partner in the head and neck with a knife. 

The district attorney’s office rebuffed Mack’s request for several of the records. His case made its way to the state’s highest court through direct appeal by the district attorney’s office, after Suffolk County Superior Court Judge James Budreau ruled in March that the DA is obligated to release records of the Harden death investigation. 

Speaking before the high court on Wednesday, Bristol County assistant district attorney Mary Lee argued that recorded interviews are exempted from public records requests under an investigatory carve-out and the names of the officers are shielded by a privacy carve-out, despite a 2020 law creating an exception in the case of a police misconduct investigation. 

The district attorney’s office made an effort “to be as transparent as possible,” Lee said, eventually making over 380 pages of redacted reports and documents and over 200 photographs available publicly. “It is very understandable that the requester, who is the decedent’s brother, wants every scrap of paper he can get, but the public records law, while it says ‘all documents,’ has these exemptions,” she added.

After George Floyd’s murder by a Minneapolis police in 2020 officer sparked a vigorous push for police reform, Massachusetts enacted new legislation known as the Policing Reform Law, which made records from law enforcement misconduct investigations subject to public record requests along with a host of other reforms.

Lee argued that the district attorney’s death investigation into Harden’s shooting does not qualify as a law enforcement misconduct investigation because the DA does not employ the officers, it was not conducting an internal affairs investigation, and “no allegation has been made against the officers.”

Several members of the court seemed unconvinced. Justice Serge Georges said he was “struggling with the rationale” of claiming a death investigation looking for any possible criminal action by the officers is not a misconduct investigation that would trigger the exception to the privacy exemption. “You have public employees in the discharge of their public obligations, and job duties are involved in an underlying case where there’s a concern as to whether or not it was lawful. Why would that be protected?” he asked.

At some level, Lee said, that is the real purpose of the SJC’s involvement.

“We asked this court to take this case, so that we could get some judicial interpretation of what ‘law enforcement misconduct investigation’ means,” Lee said. “Because if we give out those names, and we are wrong, they are out there forever.”

Mack’s attorney, Howard Friedman, argued that significant redaction of records with officers’ identities fundamentally limits their usefulness. He said he understands the misconduct investigation exception to public records exemptions to apply to law enforcement entities beyond just the police, and it overrides privacy exemptions when the request relates to an investigation into misconduct that includes breaking the law or violating the rules or regulations of a law enforcement agency. That there was no accusation does not place the death investigation outside of the realm of a “misconduct investigation,” Friedman said.

A collection of civil rights groups – Lawyers for Civil Rights, Citizens for Juvenile Justice, National Lawyers Guild, New England First Amendment Coalition, and Strategies for Youth – submitted a brief in support of disclosing the Harden records.

“Should the Court accept the District Attorney’s interpretation, it would rewrite the statute and sanction shielding records the Policing Reform Law was designed to bring into public view,” the group wrote. “Such an interpretation would have dangerous repercussions in the Commonwealth, particularly for its minority citizens who (like Mr. Harden) are disproportionately victims of unjustified use of force by police.”

An odd twist in the privacy discussion involves the Massachusetts Peace Officer Standards and Training (POST) Commission. The district attorney’s office says it understands the 2020 law as giving the commission “exclusive” authority to “determine whether and how to release officers’ names, particularly in the context of certification and decertification,” Lee wrote in the office’s brief.

The DA’s office is “between a rock and a hard place,” in trying not to undermine POST authority by releasing names without allegations of wrongdoing and during the death investigation period, Lee told the court.

But the POST Commission itself disagrees with the district attorney’s framing. It submitted a letter asserting that, no, it was not supposed to be the exclusive avenue for members of the public to access names of officers under investigation.

Neither the plaintiffs nor the defendants argue that there is explicit language giving the POST commission this exclusive authority, but the commission asserts that the Legislature neither intended to create a related exemption to public records laws nor did it intend to charge the commission with overseeing all law enforcement agencies’ public records requests.

The Legislature knows how to amend public records laws and create exclusive jurisdiction over public records requests, special assistant attorney general Randall Ravitz wrote in the POST letter. Lawmakers did not include clear language to do either when granting the commission authority to oversee law enforcement or promote new regulations, he said.

“It is too hard to accept that the Legislature that developed such a balanced and precise set of disclosure provisions also intended to make a substantial quantity of information unavailable, based solely on which agency possesses it—and to do so sub silentio,” or not expressly stated, Ravitz wrote.

The court will have to consider the parameters, but Justice David Lowy put it plainly to Friedman – “You win on the privacy if this is a misconduct investigation.”

A thornier question involves video recordings of officers and witnesses being interviewed about the case. Once a taped interview becomes a public record, it can be disseminated widely. This could be a “disincentive” to people cooperating with law enforcement investigations, Lee argued in court filings. The recordings should be exempted from disclosure, she told the court, or law enforcement would “lose an important investigatory tool.”

The office could “lose recorded interviews because people don’t want their statements and their video of themselves to be placed online – to be mocked, to be modified, to be put to music or whatever else, or part of a podcast,” Lee said, noting that “one of the amic[i] is internet journalists in this case.”

Lee was referring to The Mass Dump, a Substack newsletter and podcast that covers Massachusetts public records and police reform, which has been closely following the Harden case and is suing Bristol District Attorney Thomas M. Quinn III for withholding public records about police misconduct investigations. Northwestern District Attorney David Sullivan’s office offered a brief in support of the Bristol County interpretation of the law and is also being sued over public records.

Justices probed the possible “implications” of making video interviews available to the world that Lowy noted “might impact investigations and the quality of investigations, when the information is already there [in summaries.]”

Disclosing summaries of the interviews made by law enforcement is not enough, Friedman said, and public records law cannot require law enforcement to create detailed transcripts. Certain important statements could be excluded from the interview summaries, he argued, “so without the recordings, we don’t know the full story, and there are questions that we have about what happened.” 

In Friedman’s experience, police officers do not refuse to sit for interviews unless they are planning to assert their Fifth Amendment right not to testify against themselves.

The meat of the investigatory exemption rests not in the public exposure of officers, according to the court, but in the potential impact on effective law enforcement if people including but not limited to police are unwilling to participate.

“Just to be clear, and I don’t want to speak for everybody else, but I’m not concerned about embarrassment,” Justice Frank Gaziano said. “I’m concerned about investigatory technique, not embarrassment… That’s what they signed up for. We’re talking about chilling investigatory techniques.”