(concurring). I believe the court correctly has applied the principles of defamation law and the “fair report” privilege in reaching its conclusion that summary judgment was improperly granted as to two of the plaintiff’s claims.
The court correctly applies the Restatement (Second) of Torts § 611 (1977), to conclude that the statements of Shamshak’s family and the republication of Shamshak’s allegations, on the basis of the summary judgment record, do not fall within the scope of the fair report privilege.1 The defendants, however, have not provided the court with a record sufficient to determine whether the republication of Shamshak’s allegations falls within the fair report privilege. The record is unclear as to whether Shamshak’s allegations were disclosed in official statements.2 While the scope of § 611 of the Restatement (Second) of Torts as to what statements are official statements is not clearly defined, see Cianci v. New Times Publishing Co., 639 *804F.2d 54, 70 (2d Cir. 1980), the developing law appears to be that statements made at a press conference by law enforcement officials relating to an arrest and the investigations forming the basis of the arrest should be considered official statements and therefore should fall within the fair report privilege. Kilgore v. Younger, 30 Cal. 3d 770, 776-777 (1982). See Porter v. Guam Publications, Inc., 643 F.2d 615, 617 (9th Cir.), cert. denied, 454 U.S. 940 (1981) (privilege applies to republication of information appearing in police bulletin); Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406, 416-417 (E.D. Pa. 1978) (privilege applies to republication of information supplied by police department and FBI in informal reports concerning ongoing investigation); O’Neal v. Tribune Co., 176 So. 2d 535, 547 (Fla. 1965) (privilege applies to publication of matters which involve “open violations of law, public misconduct justifying police interference, and matters in connection with and in aid of prosecution of inquiries regarding the commission of a crime”); Stice v. Beacon Newspaper Corp., 185 Kan. 61, 66-67 (1959) (privilege applies to republication of “matters in connection with and in aid of the prosecution of inquiries regarding the commission of crime”). See also Kilgore v. Koen, 133 Or. 1, 12 (1930) (privilege applies to republication of statements made by police). Cf. Yerkie v. Post-Newsweek Stations, Michigan, Inc., 470 F. Supp. 91, 94 (D. Md. 1979) (the privilege “does not apply to statements made by the police ... as to the facts of the case or the evidence expected to be given which have not yet been made a part of the judicial proceeding or of the arrest process”); Restatement (Second) of Torts, supra at § 611 comments d and h. While this court has not determined what statements constitute official statements, in an analogous situation, the court said that a newspaper is not liable for republishing stories from reputable wire services. See Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 37-38 (1985). The same reasoning may apply to republishing public statements by the police. The court correctly leaves that issue open.
Last, assuming the statements do not fall under the privilege of § 611, the statements may be protected under Restatement *805(Second) of Torts, supra at § 612. That section provides in relevant part: “(1) one who provides a means of publication of defamatory matter published by another is privileged to do so if. . . the person providing the means of publication reasonably believes that the other is privileged to publish it.” Although statements may be privileged under this section, there would be a factual issue to be resolved by the fact finder as to whether the republisher “reasonably” believed that the person providing the information initially was privileged to do so.
A court’s obligation is to “ ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression. ’ ” Bose Corp v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964). The court, however, may not supply missing facts in an effort to fulfil its obligation. The task of supplying the needed facts is for the parties.3
In his brief, the plaintiff asserts that “[t]he exclusive Shamshak family interview, filmed before [the plaintiff’s] detention, containing the answers of family members to Taibbi’s leading questions, and Taibbi’s comments, is an obvious [(Indorsement of Shamshak’s veracity, and therefore of his defamatory accusations.” The plaintiff’s indorsement theory is not valid in this case, and the court so states. See ante at 794.
The court also states, ante at 790 n.5, that the plaintiff argues that Taibbi’s questions during the course of the interview with Gates constituted an indorsement of Shamshak’s allegations. Again, the indorsement theory is not valid in this case and therefore liability may not be imposed on that basis.
An Associated Press report contained in the record indicates that Police Chief Gates held a press conference and disclosed the substance of Shamshak’s allegations. The record, however, does not disclose the source of the defendants’ information. Therefore, the issue whether the allegations were part of the official statements of the police department must be left open.
There may be no factual dispute as to the source of the defendants’ information. If the facts are not in dispute and if the defendants file a new motion for summary judgment, the judge again should consider whether those statements fall within the fair report privilege as a matter of law. Although the court has not yet followed the Supreme Court’s decisions in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), I believe that, in ruling on the defendants’ motion for summary judgment, the judge should follow those cases and place on the plaintiff a somewhat greater burden because the plaintiff has the burden of proof on the issue of fault and opposes the motion. See Celotex, supra; King v. Globe Newspaper Co., ante at 719 (1987).