Linda Matchan v. Office of the District Attorney - Norfolk District (SPR 20170154)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 10, 2017 SPR17/154 Laura A. McLaughlin, Esq. Records Access Officer Office of the District Attorney-Norfolk County 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of Linda Matchan of The Boston Globe appealing the response of the Office of the District Attorney-Norfolk County (District Attorney) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(2). Specifically, Ms. Matchan requested a copy of "cases that have been prosecuted and the case docket numbers for the cases relating to Disabled Persons Protection Committee. The District Attorney denied the request pursuant to Exemption (a) and the Criminal Offender Records Information Act (CORI), and the second clause of Exemption (c) (privacy). G. L. c. 7, § 26(a), (c); G. L. c. 6, § 167. Ms. Matchan appealed the response. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d)(l)(iv); 950 C.M.R. 32.03(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). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lOA(d)(l)(iv); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Laura A. McLaughlin, Esq. SPRl 7/154 Page2 February 10, 2017 If there are any fees associated with a response a written, itemized, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2)(b). Once fees are paid, the records access officer must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Exemption (a) In its February 1, 2017 letter, the District Attorney indicated its intent to withhold the records pursuant to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a) A governmental 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, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The District Attorney has cited the Criminal Offender Record Information Act as applicable to withhold the records pursuant to Exemption (a). Criminal Offender Record Information (CORI), which is statutorily exempt from disclosure, is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G. L. C. 6, § 167.

Laura A. McLaughlin, Esq. SPRl 7/154 Page 3 February 10, 2017 The District Attorney merely states that the breadth of detailed information that Ms. Matchan received from the Disabled Persons Protection Committee (DPPC), and forwarded to your office prohibits the disclosure of docket numbers as it correlates information not in the court's records. "[D]ocket numbers of criminal cases prosecuted in public judicial proceedings, correlated with information that is also available from court or other public records ... but not correlated with defendant-specific information, are public records ... " Globe Newspaper Co. v. Dist. Attorney for Middle Dist, 439 Mass. 374 at 385 (2003). Further, the public has access to court clerks' alphabetical indices of defendants' names and may thereby obtain access to court records concerning an individual defendant. Globe Newspaper Co. v. Fenton, 819 F. Supp. 89, 100-01 (D. Mass. 1993). I find that the District Attorney has not met its burden in specifically explaining how the requested information, prosecuted case names and docket numbers may be withheld under the CORI Act as it operates through Exemption (a). Exemption (c) The District Attorney has also indicated that it is withholding the records pursuant to the second clause of Exemption (c) of the Public Records Law. Exemption (c) applies to: 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)(c). 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). Whereas, the District Attorney has only claimed the second clause of Exemption ( c ), no discussion of the first clause is necessary in this particular appeal. The District Attorney is advised that the second clause of Exemption ( c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623,625 (1980). Examples of"intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979). The second clause of Exemption ( c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then

Laura A. McLaughlin, Esq. SPRl 7/154 Page4 February 10, 2017 the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. The District Attorney's February 1st letter states that disclosure of docket numbers would reveal intimate details of a highly personal nature. However, the District Attorney has not met its burden in specifically explaining how case names and docket numbers of prosecuted cases rise to the level of "intimate details of a highly personal nature" under the second clause of Exemption (c). Order I find that the District Attorney has not met its burden in properly responding to a request for public records. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10( c ); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian must offer specific proof an exemption applies) (emphasis added). Accordingly, the District Attorney is hereby ordered to provide Ms. Matchan with a detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. G. L. c. 66, § 1O A; 950 C.M.R. 32.06(3)(c ). A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Linda Matchan