Christopher DeMayo v. Office of the District Attorney - Worcester District (SPR 20170879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12, 2017 SPR17/879 Lindsay Corcoran Records Access Officer Worcester County District Attorney's Office 225 Main Street, G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Christopher DeMayo, Esq. appealing the response of the Office of the District Attorney for the Worcester District (DAO) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney DeMayo requested "all documents relating to the investigation and prosecution" of a certain proceeding, " ... including but not limited to discovery documents produced by the Commonwealth to the defense," that is in the possession of the DAO. In responses dated June 1, 2017 and June 8, 2017, the DAO denied the request, claiming the responsive record is exempt from disclosure under G.L. c. 41, § 97D and G.L. c. 265, § 24C as they operate through Exemption (a) ofthe Public Records Law. G.L. c. 4, § 7(26)(a). Attorney DeMayo petitioned this office objecting to the blanket denial of all records. Status of the requester and reason for the request Please be advised, under the Public Records Law, the status of the requester has no bearing on whether a record may be disclosed. The Public Records Law does not distinguish between requesters. See Bougas v. ChiefofPolice ofLexington, 371 Mass. 59,64 (1976) (the public records statute does not provide a "standing" requirement but extends the right to examine to "any person" whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity). Furthermore, the discovery processes and the Public Records Law are distinct and independent venues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a patiy's access to records may be limited by the Public Records Law; that does not mean that a party cannot obtain the same records through discovery processes. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant 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

Lindsay Corcoran SPR17/879 Page 2 July 12, 2017 moves for its production). Therefore, Attorney DeMayo may wish to seek access to the record through the judicial system. 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, § 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, § 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. The DAO's June 1st and 8th responses The DAO in its June 1st response claims the responsive records "are not available unless ordered by the Superior Court under Mass. R. Crim. P. 14." You also indicate that "[t]he [P]ublic [R]ecords [L]aw cannot be used to circumvent this rule because 'discovery should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed' by the Supreme Judicial Court. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). See G. L. c. 4, § 7(26)(a); G. L. c. 213, § 3." In your response on June st\ you also indicate that the "District Attorney's Office remains unable to satisfy your request." You indicate that "the case involves allegations of rape and/or sexual assault" and "[b ]ecause of the nature of the allegations, the materials that you seek 'shall not be deemed to be a public record' and shall not be available to the public unless ordered by the Superior Court." As a result you claim the responsive record is exempt from disclosure under G. L. c. 265, § 24C and G. L. c. 41, § 97D as they operate through Exemption (a) of the Public Records Law. G. L. c. 4, §7(26) (a). Exemption (a), 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

Lindsay Corcoran SPR17/879 Page 3 July 12, 2017 restricted. See Attorney Gen. v. Collector ofLynn, 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. Chern. Corp. v. Dep't ofEnvtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statutes provide in pertinent part: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13Bl/3, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be determined to be a public record under the provisions of section seven of chapter four G. L. C. 265, § 24C. All reports of rape and sexual assault or attempts to commit such offences, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality G. L. C. 41, § 97D. Conclusion In its letters, the DAO explained that the responsive record is related to allegations of rape and/or sexual assault. Whereas the responsive record consists of information related to the type of information specifically exempted by statute, I find that the DAO acted properly in withholding the requested records from disclosure pursuant to Exemption (a) of the Public Records Law. If Attorney DeMayo is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Lindsay Corcoran SPR17/879 Page 4 July 12, 2017 Sincerely, ~a~ Supervisor of Records cc: Christopher DeMayo, Esq.