The Supreme Judicial Court ruled today that FBI records related to the shooting death of an alleged ISIS sympathizer in a Roslindale parking lot became Massachusetts "public records" once the bureau shared them with Massachusetts investigators, and that the Suffolk County District Attorney's office has to do a better job explaining why the man's mother shouldn't get copies of them.
Rahima Rahim, had sought the documents through a Massachusetts public-records request. Rahim is separately suing a Boston Police officer and an FBI agent over they way they shot Usaamah Rahim to death as he allegedly came at them with a large knife outside the CVS on Washington Street on June 2, 2015,
According to the court summary of the public-records case, the Suffolk County District Attorney's office provided Rahim with "783 pages of documents, 373 photographs, and unedited surveillance footage," based on its own investigation, which concluded the officers were justified in opening fire, but refused to hand over 38 additional FBI documents, saying they were, essentially, property of the FBI, which is not subject to the Massachusetts public-records law and that, in any case, they can be kept secret because they might disclose investigations or techniques that could disrupt law-enforcement investigations.
But in its ruling today, the state's highest court said the records became subject to Massachusetts public-records law the moment local investigators were given copies of them, because the state law defines public records to include "documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee" of any Massachusetts government entity.
To counter arguments by the DA's office and by the US Attorney that the records remained the property of the FBI even if local investigators got copies, the court turned to Webster's Third New International Dictionary and Black's Law Dictionary," which define "received" as something one had "come into possession of," not something somebody necessarily owns.
Not only would construing "received" to be synonymous with "owned" contravene the plain meaning of the word, it would be inconsistent with the purpose of the public records law: to provide "the public broad access to governmental records." Worcester Tel. & Gazette Corp.v. Chief of Police of Worcester, 436 Mass. 378, 382-383 (2002). If every public records request also required the requestor to conduct something akin to a title search, then the public would necessarily be stymied in its quest for greater government transparency.
The FBI's assertion that the materials are Federal property and outside the purview of the public records law does not alter this conclusion. The public records law does not vest agencies with the authority to determine the statute's scope by making interagency agreements.
Still, that doesn't mean that Rahim will now get all the records, in fact, the court specifically decided today that the DA can withhold 21 documents from her, because the state public-records law allows for exemptions to what can be made public. In this case, that means documents have to be reviewed to ensure they are not "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," the court said.
Now, the court, continued, one might assume that:
Disclosing materials concerning an investigation into an individual's ties to an international terrorist organization known for targeting law enforcement officials would "be so prejudicial to effective law enforcement that it is in the public interest to maintain secrecy."
But that's just too broad a consideration, because the state public-records law "does not provide a blanket exemption for investigatory materials assembled by police departments."
Instead, the DA's office has to go through each document in its possession and prove that the exception applies.
The DA's office did provide a lower-court judge an index listing all the FBI records it has, with a short explanation of why it should remain undisclosed. And the descriptions of 21 of the 38 documents were good enough to let a judge decide that they would, in fact, disclose information related to law-enforcement operations that should remain secret. Others, though, provide "little insight" into why they should stay hidden, for example, one document described only as "Deliberative Process Privilege Document'--3 pages," and another labeled ""Hand-drawn diagram, dated June 2, 2015--1 page."
The court directed the DA's office to provide better explanations for these documents to a Superior Court judge to consider, adding that should prosecutors feel that just describing the documents would be enough to give away investigatory information, then the DA could ask the judge to review the actual documents in private to make a determination.