State DA cannot shield FBI records from public disclosure under federal FOIA exemption

The federal Freedom of Information Act cannot be used to block public access to FBI records in the hands of state law enforcement, the Massachusetts Supreme Judicial Court ruled on New Year's Eve.

Rahim in a yearbook photo obtained by CNN from the Brookline library.

In 2015, an agent of the Federal Bureau of Investigation (FBI) and a Boston police detective shot and killed Usaamah Rahim when he approached officers and refused to drop a 13-inch knife.  Rahim was under investigation by a Joint Terrorism Task Force for suspected ties to the Islamic State of Iraq and the Levant (ISIL, or ISIS).  The officers were cleared in the shooting.

In 2017, under the Massachusetts public records law (PRL), the district attorney (DA) gave Rahim's mother access to more than 1,100 documents in the investigation.  However, she was denied access to documents that the FBI had loaned to the DA and designated as confidential.

That denial was in error, the Court ruled.  In conjunction with the federal district attorney and the FBI, the DA argued in court that the loaned records could not be disclosed under state law because the records are owned by the federal government, or, alternatively, that the incorporation of "other laws" as disclosure exemptions in the Massachusetts PRL required the operation of disclosure exemptions in the federal Freedom of Information Act (FOIA) and federal Privacy Act.

The Court rejected both arguments.  First, the Massachusetts PRL turns expressly on the receipt (or creation) of records by public officials, not ownership.  "If every public records request also required the requestor to conduct something akin to a title search," the Court reasoned, "then the public would necessarily be stymied in its quest for greater government transparency."

Second, the Court opined that the federal FOIA and Privacy Act both, on their own terms, apply to federal agencies, so are not compulsory on state officials.

Both holdings are consistent with nationwide norms in freedom of information law.  Ownership is sometimes invoked as a useful concept when a state court struggles to discern the difference between, for example, a family photo on the desk of a state employee from the employee's work product.  But as the Massachusetts Court recognized, that analysis breaks down quickly in practice; ownership of records as property is a red herring in access analysis.  The better analysis anchors application of public records law in the laudable statutory purposes of transparency and accountability.  There is no doubt that transparency in law enforcement investigatory records serves the interest of public accountability.

Likewise, the use of the federal law to bind state officials would have been a perversion of the accountability mechanisms in the federal FOIA and Privacy Act, and could be construed even as a violation of the Tenth Amendment.  States have recognized instances when federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), arguably count as "other law" exemptions in state freedom of information law, insofar as the laws may preempt state disclosure requirements under the Supremacy Clause of the U.S. Constitution.  But binding state officials to federal law by way of the information at issue, rather than an enumerated governmental power, would be a bridge too far.

At the same time, the Court recognized that some of the FBI records, based on their index descriptions, qualified for exemption from disclosure under the state PRL as justifiably confidential law enforcement records, for example, records related to an ongoing investigation, confidential sources, or emergency response strategies.  The Court ordered the withholding of those records and remanded the case to the Superior Court to analyze application of the state exemption to other records.

The case is Rahim v. District Attorney, No. SJC-12884 (Mass. Dec. 31, 2020) (Justia).  Justice David Lowy wrote the unanimous opinion.