Eve Carson v. Office of the District Attorney - Essex District (SPR 20170824)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 3,2017 SPR171824 David F. O'Sullivan, Esq. Assistant District Attorney Essex County District Attorney's office Ten Federal Street Salem, MA 0 1970 Dear Attorney O'Sullivan: I have received the petition of Eve Carson appealing the response of the Office of the District Attorney for the Essex District (DAO) to a request for public records. G. L. c. 66 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Carson requested copies of the DAO's materials -- related to the investigation of a 1981 homicide case. The DAO provided a written response, dated April 25,2017, providing a response to certain portions of the responsive records and citing Exemptions (a), (c), and (f) to deny access to some of the responsive records. G. L. c. 4, 57 (26) (a), (c), (f). Ms. Carson has appealed the April 25thr esponse. 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, 5 10A(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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 11 (19 95) (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, 5 10(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

David F. O'Sullivan, Esq. Page 2 July 3,2017 April 25th response In its April 25th response, the DAO mentioned that "the investigation into this matter remains ongoing." The DAO relayed some information it had in its possession, directed Ms. Carson to seek certain portions of the responsive records from the Federal and State Archives, and denied some of her requests for records. The DAO denied portions of her request citing to the Confidentiality of Reports of Rape and Related Offenses Statute, G. L. c. 41 9 97D; Victim's Name Confidentiality Statute, G. L. c. 265 5 24C; Grand Jury Secrecy, Mass. R. of Crim. P. 5(d); and Court Report Findings, G. L. c. 38, 9 10, as they operate through Exemption (a) to the Public Records Law. The DAO also claimed the privacy and investigatory exemptions, Exemptions (c) and (f), to the Public Records Law. Exemption (a) In the April 25th response you cited several statutes that mandate nondisclosure of sexual assault victims' records, Grand Jury witness transcripts, victims' information, as well as Court Findings. &, G. L. c. 41 9 97D; G. L. c. 265 5 24C; Mass. R. of Crim. P. 5(d); G. L. c. 38, fj 10. 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 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. 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 of records if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't of Envtl. m, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statutes cited by the DAO to justify nondisclosure of records apply to sexual assault information, Grand Jury witness transcripts, and identities of victims. In your April 25th response you cite to statutes that state that such records are exempt from disclosure under Exemption (a). 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 sexual assault victims or include Grand Jury witness transcripts, Court report findings, and victims' information. G. L. c. 41 9 97D; G. L. c. 265 9 24C; Mass. R. of Crim. P. 5(d); G. L. c. 38, 9 10. Exemption (c) In your April 25thr esponse, you indicate that the DAO intends to withhold portions of the

David F. O'Sullivan, Esq. Page 3 July 3,2017 records under 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 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). Courts have held that medical and personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular Id. individual. at 438. 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 Cornrn'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. From its April 25thr esponse, it is unclear whether the DAO is claiming an exemption under the first clause of Exemption (c), the "personnel and medical files or information," or the second clause, which pertains to ". . . other materials or data relating to specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy,"

David F. O'Sullivan, Esq. Page 4 July 3,2017 to withhold the photographs and incident report of identified individuals, and the written statements, transcript, and tape of a witness's interview. Consequently, I find that the DAO has not met its burden of specificity on how either clause of Exemption (c) applies in denying access to the requested information. Exemption @ In your April 25"' response you indicate that "as you are aware, the investigation into this matter remains ongoing." As a result, the DAO withheld information with regards to a 1981 composite from Harvard Campus Police; date, location, and contents of belongings of an identified individual; an identified individual's meeting with authorities; written statements, transcript, and tape of a witness's interview; and postmark and date of an identified individual's letter, 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 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. Chief of Police of Lexington, 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 (0 Commissioner of Boston, 378 Mass. 28 1, 290 n. 18 (19 79). Exemption invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Id. at 289-90. However, it is unclear how this investigation remains ongoing. Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 1O (a). Reinstein v. Police Cornm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The DAO has not demonstrated how disclosing any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). I understand a Public Records Division staff attorney contacted you about this appeal.

David F. O'Sullivan, Esq. SPRl71824 Page 5 July 3,2017 Conclusion Accordingly, the DAO is ordered to provide a revised written response to Ms. Carson's public records request within ten business days made in compliance with this order, the Public Records Law, and its regulations. It is preferable to send an electronic copy of this response to this office at pre@,sec.state.ma.us.M s. Carson may appeal the substantive nature of the DAO's response within ninety days. See 950 C.M.R. 32.08(1). . Sincerely, b' Rebecca S. Murray Supervisor of Records cc: Eve Carson