Douglas E. Wight v. Office of the District Attorney - Northwestern District (SPR 20170520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2017 SPR17/520 Cynthia M. Von Flatern, Esq. Assistant District Attorney Office of the District Attorney - Northwestern District 1 Gleason Plaza Northampton, MA O1 060 Dear Attorney Von Flatern: I have received the petition of Douglas E. Wight appealing the response of the Office of the District Attorney-Northwestern District (DAO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wight requested a copy of the DAO's investigation records and the facts that the investigation reveals. Prior appeal On January 25, 2017, the DAO provided fourteen (14) pages ofrecords responsive to the request, and withheld additional records pursuant to Exemptions (c) and (f) of the Public Records Law. Unsatisfied with the response, Mr. Wight petitioned this office and an appeal was opened. See SPRl 7/354 Supervisor of Records Determination (March 21, 2017). In my March 21st determination, I closed the appeal with the proviso that the DAO provide Mr. Wight with a supplemental response detailing what specific records fall within each of the exemptions claimed by the DAO, and specifically how those exemptions allow the DAO to withhold the records in their entirety. The DAO was also ordered to explain whether any non-exempt, segregable portions of the responsive records can be provided. Current appeal On April gt\ Mr. Wight appealed the DAO's supplemental response dated April ih. Mr. Wight states, "I think that the exemption the DA is citing here or can be used to sequester (hide) valuable information and documentation from the citizens and taxpayers of MA whose 'right to know' out-prioritizing the DA's legal right to hide valuable and viable information pertaining to an ongoing suit here in Franklin County Superior Court." Based on Mr. Wight's petition concerning the exemption claims, this office opened the current appeal, SPRl 7 /520. 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

Cynthia von Flatern, Esq. SPRl 7/520 Page 2 May 3, 2017 Status of the requester and reason for the request In his April gth petition to the Supervisor of Records, Mr. Wight states that he seeks the records not only in the public's interest, but also to assist him in an on-going civil action. Mr. Wight should be advised that the Public Records Law does not distinguish between individuals seeking public records. His status as the plaintiff in the civil action offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § 1 O(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Accordingly, Mr. Wight's status and particular interest in the responsive records shall play no role in a determination as to whether the records should be disclosed to the public. Moreover, the appeal process under the Public Records Law is separate and apart from the judicial remedy. Mr. Wight may have a unique right of access to the records through the judicial process. See 950 C.M.R. 32.08(1)(a). 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, § IOA(d); 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); 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. Exemptions (c) and (I) In both the January 25th and April ih responses, the DAO continues to claim Exemptions (c) and (f) of the Public Records Law, however, the DAO still has not met its statutory and regulatory burden of specificity under the Public Records Law. Exemption (c) Exemption (c ) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute

Cynthia von Flat ern, Esq. SPRl 7/520 Page 3 May 3, 2017 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). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to lmow against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. 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." Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. at 625. Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights 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). Application of the privacy exemption requires a balancing between any claimed invasion of privacy interest of the record outweighs the public interest in disclosure. In re Subpoena Duces Tecum, 445 Mass. 685, 688 (2008); Collector of Lynn, 377 Mass. at 156. In identifying the existence of privacy interests, the factors for consideration include whether disclosure would result in personal embarrassment to an individual of normal sensibilities, whether the materials contain "intimate details" of a "highly personal" nature, and whether the same information is available from other sources. Id.; see also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005). The second clause of Exemption ( c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. If the requested information does not fit this description, then 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 DAO's April ]1h response simply states that disclosing details about an investigation that did not result in probable cause to charge a person who was the target of the investigation is highly invasive of a person's privacy. Further, the DAO states that "once a privacy interest is cited, the public interest in disclosure must be balanced against the privacy interest. Where probable cause was not found, public interest in disclosure does not outweigh the privacy interest." I find that the DAO has not met its burden of specifically explaining the particular privacy interest at stake and how the DAO has met the two-step analysis necessary to withhold

Cynthia von Flatern, Esq. SPRl 7/520 Page 4 May 3, 2017 the "intimate details of a highly personal matter" from public disclosure under the second clause of Exemption (c). It is also unclear why the records compiled during the investigation cannot be redacted under Exemption ( c) and provided to Mr. Wight. Exemption (f) The DAO has also not met its burden of specificity in claiming Exemption (f) of the i 11 Public Records Law to withhold the records in their entirety. Your April response is simply a statement regarding the purpose of Exemption (f) and a list of case law citations that apply to Exemption (f). 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)(f). Exemption (f) provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976); cited with approval in Reinstein v. Police Commissioner of Boston, 378 Mass. 281,289 (1979). This exemption, however, does not provide a blanket exemption for all investigatory materials. Reinstein, 378 Mass. at 289. Instead, it invites case-by-case consideration of whether access would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. The DAO has not provided the necessary specificity concerning what records it compiled during its investigation and why those records cannot be redacted under Exemption (f). Further, the DAO has not provided any supportive information concerning any confidential investigative techniques that are unique to the investigation and something that the public would not have knowledge of, and how public disclosure of even redacted records will so prejudice the possibility of effective law enforcement in future investigations.

Cynthia von Flat ern, Esq. SPRl 7/520 Page 5 May 3, 2017 Specifically-claimed exemptions; segregable portions Based on the DAO's January 25th and April i 11 responses, it is still unclear which records the DAO has in its custody that it is withholding in their entirety under Exemptions (c) and (f). ih The DAO' s April response did not comply with my March 21st determination to meet its burden of specificity and provide a general description of the records withheld under each exemption claimed. See Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). Further, the DAO has not met its burden of explaining why any non-exempt, segregable portion(s) of the responsive records cannot be provided. See G. L. c. 66, § lO(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). To assist the DAO in providing a response, a Public Records Division attorney provided the DAO with a copy of the prior and current appeal files. Order Accordingly, the DAO is hereby ordered to provide Mr. Wight with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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(a),sec.state.ma.us. Mr. Wight may appeal the substantive nature of the DAO's response within ninety (90) days. See C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Douglas E. Wight