Carson, Eve v. Office of the District Attorney - Essex District (SPR 20150265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 10,2015 SPRlS/265 Mr. David F. O'Sullivan, Esq. Office of the District Attorney for the Essex District Ten Federal Street, 5th Floor Salem, MA 01970 Dear Attorney O'Sullivan: I have received the petition of Eve Carson appealing the nonresponse of the Office of the District Attorney for the Essex District (DAO) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Carson requested copies of all DAO materials related to the investigation of a 1981 homicide. Ms. Carson's request was the subject of a prior appeal, in which the DAO failed to respond. See SPR15/07 4 Determination of the Supervisor of Records (March 23, 2015). Subsequent to the opening of SPR15/074 the DAO provided a written response, dated March 2, 2015, citing the privacy and investigatory exemptions to deny access to any responsive records other than those provided in response to a prior request in 2008. G. L. c. 4, § 7 (26) (c), (f). Ms. Carson has appealed the March 2 response. Right of access; additional information provided by requester Please note that the personal status Ms. Carson in the matter in question does not afford any greater or lesser right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). During the pendency of this appeal Ms. Carson provided information related to investigations and court proceedings regarding the 1981 homicide, with information provided as recently as July 21, 2015. While this information provides a backdrop for Ms. Carson's interest in the records, it does not in itself play a determining factor in whether the responsive records are public records. Similarly, any act by another jurisdiction related to a request for records will play no role in determining whether records may be properly withheld under the Massachusetts Public Records Law. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. David F. O'Sullivan, Esq. SPR15/265 Page Two August 10, 2015 March 2 response In its March 2 response the DAO denied Ms. Carson's request for records in its entirety citing to Exemptions (c), and (f), the privacy and investigatory exemption to the Public Records Law. This response also references a finding by this office related to a similar request made in 2008 by Jay L. Groob, Managing Director, American Investigative Services. In your response you state your belief that Mr. Groob was employed by Ms. Carson. In the March 2 response you explain that the DAO in 2008 provided two reports related to the 1981 investigation in response to Mr. Groob's request. This request was the subject of an appeal with this office. See SPR09/016 Determination ofthe Supervisor of Records (June 26, 2009). You further state that the DAO position on the remaining records is unchanged since the 2008 response. In the 2009 order this office found that, at the time of the appeal, the DAO had "renewed the investigation," into the homicide. At that time this office found the DAO had met its burden to withhold responsive records. Your March 2 letter reiterates the findings of the 2009 order, cites the privacy and investigatory exemptions, but does not otherwise contain the level of specificity required in denying access to a public record. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1 0( c); 950 C.M.R. 32.08(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are not blanket in nature). Description of responsive records Subsequent to the opening of the present appeal the DAO provided an updated response to this office, dated June 1, 2015. You further stated that a copy of your June 1 response was provided to Ms. Carson. In the June 1 letter the DAO clarified its position with respect to the responsive records. The June 1 response was highly detailed and clearly prepared in an effort by the DAO to comply with the requirements of the Public Records Law with respect to Ms. Carson's appeal. The DAO is advised and encouraged to provide similar substantive responses to requesters in the future if it intends to deny all or part of a request for public records. In its June 1 letter the DAO explained that the responsive records in the custody of the DAO "consists of eight banlcers boxes filled to the hilt with documents and/or physical evidence related to this and other possibly related cases, both solved and unsolved." In the letter you explained that you personally reviewed these records to assist in providing the June 1 response, further stating the records consist of interviews and statements of witnesses containing their names and other identifying personal information; records containing investigators thoughts and

Mr. David F. O'Sullivan, Esq. SPR15/265 Page Three August 10,2015 interim conclusions concerning an open homicide investigation, as well as and other possibly related cases; legal opinion work product of assistant district attorneys who worked on the case; a homicide victim's personal effects, medical records, bank records, and school records; records and information concerning the homicide victim's private life and intimate and family relationships; CORI pertaining to possible suspects and other persons; records and information related to possibly related homicides or sexual assault cases which contain the name and identifying information of the victims, as well as medical files or information; and grand Jury transcripts and materials. Exemption (a) In the June 1 letter you cited several statutes that mandate nondisclosure of criminal offender record information, as well as statutes related to the confidentiality of sexual assault records. See, G. L. c. 6 § 167 et. seq.; G. L. c. 41 §97D; G. L. c. 265 § 24C. A discussion of Exemption (a), the statutory exemption, is in order. Exemption (a) permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) A governniental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 3 77 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statutes cited by the DAO to justify nondisclosure apply to sexual assault and criminal history records. CORI, as defined by statute, is exempt from disclosure under Exemption (a). In your June 1 response you explained that the responsive records provide information that satisfies the definition of CORI. Similarly, your June 1 letter cites two statutes that are applicable to portions of records that identify the victims of sexual assault. I find the DAO has met its burden of specificity with respect to the statutory exemption's applicability to portions of the responsive records that identify CORI and sexual assault victim information. See G. L. c. 6 §167 et. seq.; G. L. c. 41 §97D; G. L. c. 265 § 24C. Exemption (c) In your June 1 letter, you indicated the intent of the DAO to withhold portions of the records that contain medical information regarding specifically identified individuals. Exemption (c) applies to:

Mr. David F. O'Sullivan, Esq. SPR15/265 Page Four August 10,2015 personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. I find that the DAO is permitted to withhold any portions of the responsive record that contain medical information that would specifically identify the subject of that medical information. Exemption (d) In your June 1 letter you stated the DAO would withhold, pursuant to Exemption (d) of the Public Records Law, any legal opinion work product in the responsive records created by assistant district attorneys related to the 1981 homicide investigation. This exemption claim by the DAO is based upon a recent opinion of the Supreme Judicial Court. See DaRosa v. City of New Bedford, (SJC-11759) (Slip Op. May 16, 2015). In your letter, you contend that portions of the requested records ought to be withheld from disclosure pursuant to Exemption (d) of the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, §7 (26) Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988).

Mr. David F. O'Sullivan, Esq. SPR15/265 Page Five August 10, 2015 Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.). I find the DAO has not yet met its burden to explain how any observations by assistant district attorneys in a 1981 homicide investigation would meet this ongoing deliberation standard. Further, the DAO has failed to indicate what, if any, factual information contained in the records would exist that must be disclosed. As such, I find the DAO has failed to meet its burden as to the applicability of the holding in DaRosa to the responsive records. Exemption (/) In your June 1 letter you explained that the DAO would withhold the requested records pursuant to Exemption (f) of the Public Records Law. Exemption (f), the investigatory exemption, permits the withholding of: 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 G. L. c. 4, §7 (26) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. ChiefofPolice ofLexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 3 78 Mass. 281, 290 n.l8 (1979). I find no information in your March 2 or June 1 letter to support this exemption claim. In particular, your March 2 letter references a public records appeal by Mr. Groob in 2008. In that appeal the Supervisor of Records found the DAO was permitted to withhold records responsive to a similar request, as the DAO informed this office that it had "renewed the investigation" into the 1981 homicide. In your recent responses there is no information to suggest that such an investigation is ongoing related to the 1981 homicide. While there is no statute of limitations on a homicide investigation, the Appeals Court found that in a denial of access to public records a custodian holds the burden to show that such an investigation is ongoing. See Rafuse v. Stryker, 61 Mass.

Mr. David F. O'Sullivan, Esq. SPR15/265 Page Six August 10, 2015 App. Ct. 595, 563 (2004). As the DAO has made no such claim in this request, I find the DAO has failed to meet its burden to show the applicability of Exemption (f) to the responsive records. Custodial indexing of records; fees The Supervisor may require a custodian to compile an index of the requested records where numerous records or a lengthy record have been requested. Said index shall meet the following requirements: (a) the index shall be contained in one document, complete in itself; (b) the index must adequately describe each withheld record or deletion from a released record; (c) the index must state the exemption or exemptions claimed for each withheld record or each deletion of a record; and, (d) the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. Nothing in 950 C.M.R. 32.08 shall preclude the Supervisor from employing alternative or supplemental procedures to meet the particular circumstances of each appeal. I find that such an index would provide assistance to Ms. Carson to indicate the status of the responsive records. Further, such an index would act to assist the DAO in meeting its burden of specificity with respect to any claimed exemptions to the Public Records Law. As indicated above, the requester's identity or interest in responsive records plays no role in a determination as to the public status of those records; however, it is clear by review of the June 1 letter that any remaining portion of the responsive records, subsequent to proper withholding or redaction, may render the result useless to the requester. In addition, as many of the identities of the parties in the records are known by the requester, it may not be possible to redact the records in a manner to protect the identity of voluntary witnesses, subjects of CORI, victims of sexual assault, or persons with medical information disclosed therein. In your June 1 letter to this office you explain that, even if portions of the eight boxes of records are deemed public the DAO did not prepare a fee estimate for Ms. Carson, as "the task of segregation and redaction would be massive and prohibitively time consuming and expensive". The Public Records Law mandates that a custodian "shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee. Every person for whom a search of public records is made shall, at the direction of the person having custody of such records, pay the actual expense of such search." G. L. c. 66, § 10(a). A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with

Mr. David F. O'Sullivan, Esq. SPR15/265 Page Seven August 10, 2015 a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(l)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(l)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). Order I find the DAO has met its burden with respect to certain exemptions claimed. I further find that the DAO has not met its burden to justify withholding all of the records; further, the DAO has failed to meet its burden of specificity in withholding records pursuant to Exemptions (d) and (f). Finally, I find that a substantive custodial index detailing the contents of eight boxes of investigatory records may in effect serve no purpose if the resulting redacted records would be of no interest to the requester. Accordingly, I find the DAO must provide a revised written response to Ms. Carson's public records request, to be provided within ten (10) days. This written response must contain a detailed explanation as to the applicability of Exemptions (d) and (f) ofthe Public Records Law to the responsive records, must include a representative sample fee estimate related to any nonexempt portions remaining after redaction, and must contain a presentative sample a custodial index to assist Ms. Carson in determining how to proce with her request. Ms. Carson may not be assessed a fee by the DAO to produce the custodial d x. A copy of any response to Ms. Carson must be provided to this office. It is preferable an electronic copy ofthis response to this office at pre@sec.state.ma.us. Supervisor of Records cc: Ms. Eve Carson