District Attorney Establishes Independent Databases On Police Officers

News Item/Commentary:

            In December of 2021, the Commonwealth of Massachusetts enacted a sweeping police reform bill that established the Peace Officer Standard and Training (POST) Commission.  This commission was granted the authority to certify and decertify police officers over matters of qualifications and conduct.  The commission investigates and adjudicates complaints made against officers with regard to their conduct. The law provides for a hearing and an appeals process.  Officers are also entitled to representation by legal council.  The intent of the legislature was to establish a centralized, fair and deliberative process for evaluating complaints against police officers, and to maintain a single and authoritative data base on the conduct and performance of officers, who have engaged in misconduct.  All this to preserve the public’s trust in policing.

            Now, however, some District Attorney’s offices are attempting to duplicate this process by creating their own separate database, with far less due process than the POST commission offers.   For example, the Essex District Attorney recently issued a notice to chiefs to submit information to his office, if they become aware that an officer, under their authority, was the subject of: a criminal conviction; an open criminal case; a finding of untruthfulness, or other misconduct related to credibility; a finding that the officer engaged in biased conduct or discrimination; or engaged in an instance of unreasonable force.  Also requested was information regarding “ pending civil suits, or other pending administrative proceedings against an officer, alleging official misconduct ( i.e. Internal Affairs, Massachusetts Council Against Discrimination” or any issue with POST).”  This last provision exceeds the requirements of the POST statute.  The Essex District Attorney further informed the chiefs that this information will be entered into a “centralized data base” set up to “facilitate required disclosures for individual criminal cases.”

The Essex District Attorney intends to create a separate and distinct file on police officers for the sole purpose of making it easier for prosecutors to reference in house records, if and when certain issues arise, that require disclosures. See Matter of Grand Jury Investigations 485 Mass, 641, 650-653 (2020); Mass. R. Crime P.14 (a) (1) (A) iii Mass. R Prof. C 38. The DA was quick to point out that not all information submitted will be available for disclosure, and that the data base will be secured. He also extended an invitation to officers to periodically review their files to ensure that they are purged and updated when matters against them are resolved.

The concern over this policy is that it duplicates an existing process for tracking police officer conduct (POST), and it creates new bureaucratic risks for officers because it is feared that DA’s offices will not commit the resources and oversight necessary to ensure that the records submitted are accurate and updated. In fact, it appears that the policy places the entire onus on police officers to ensure that files maintained by District Attorneys’ Offices are accurate. Finally, it interjects the District Attorney’s offices into the administration of police agencies, which is a violation of the separation of powers in the American system of justice. Just as the Executive and Legislative branches of government are separated by checks and balances, so to are courts and prosecutors, from law enforcement agencies. The Essex County District Attorney’s policy seems to step over those bounds in that it now appears to be managing police personnel matters.

Critics question the necessity of creating an entirely new database on officers, given the POST commission? The DA’s letter admits that the times when very detailed and specific disclosures about an officer will be rare, which begs the question why go through all this, can’t this be done on a case-by-case basis? It would seem only logical to keep the great burden of storing personal information and ensuring the protection of that information with a well-managed central repository, one that has the resources and legal support to manage it properly. Such a repository is the POST Commission, why should we duplicate it ?

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