Linda Matchan v. Office of the District Attorney - Hampden District (SPR 20170634)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 23, 2017 SPR17/634 Maida H. Wasserman, Esq. Assistant District Attorney Office of the District Attorney - Hampden District 50 State Street Springfield, MA O1 102 Dear Attorney Wasserman: I have received the petition of Linda Matchari of The Boston Globe appealing the response of Office of the District Attorney Hampden District (DAO) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Matchan requested a copy of a police report involving an identified individual. In a response dated April 12, 2017 the DAO provided the responsive record with portions redacted under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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); 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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2}. Once fees are paid, a records custodian must provide the responsive records. 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

Maida H. Wasserman, Esq. SPRl 7/634 Page 2 May 23, 2017 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Current appeal In her appeal petition Ms. Matchan indicates she objects to the redaction of "the name of the home health agency the defendant worked for." The DAO cites Exemptions (a) and (c) to support the redactions within the responsive record. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't of Envtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that the DAO cited to withhold the information at issue pursuant to Exemption (a) is the Criminal Offender Record Information (CORI) Act. G. L. c. 6, § 167. 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

Maida H. Wasserman, Esq. SPRl 7/634 Page 3 May 23, 2017 identifiable, or intelligence information. G. L. C. 6, § 167. 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 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). Analysis under the second clause of Exemption ( c) is subjective in nature and requires a balancing of the public's right to know 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. This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature" regarding a specific individual. If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). Burden ofs pecificity The DAO's April lih response cites the statutory language of the CORI Act and Exemption ( c ), but does not provide further specificity regarding how these exemptions apply to the redacted information at issue. Therefore, I find the DAO has not met its butden to withhold "the name of the home health agency the defendant worked for." G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3 ); see also Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted you and you indicated the DAO would provide a supplemental response to Ms. Matchan. Conclusion Accordingly, I will consider this appeal close.d with the proviso that the DAO provide Ms. Matchan a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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@sec.state.ma.us.

Maida H. Wasserman, Esq. SPRl 7/634 Page 4 May 23, 2017 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Linda Matchan