Lauren Kirchner v. Norfolk County District Attorney's Office (SPR 20170993)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 25, 2017 SPR17/993 Laura A. McLaughlin, Esq. Assistant District Attorney Office of the District Attorney Norfolk District 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of Lauren Kirchner, Senior Reporting Fellow at ProPublica, appealing the response of the Office of the District Attorney-Norfolk 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. Kirchner requested the number of cases referred to the DAO by the Insurance Fraud Bureau each year for the most recent five years the DAO has available, and the defendant's name, address and case number. DAO's response In its April 21st response, the DAO informed Ms. Kirchner that the Insurance Fraud Bureau (Bureau) does not "refer" cases to the Norfolk DAO. The Bureau independently investigates cases and applies for private complaints in district court. You provided Ms. Kirchner with the number of cases where a clerk magistrate issued a complaint submitted by the Bureau, which resulted in a prosecution by the Norfolk DAO. Your April response also states that the DAO cannot provide Ms. Kirchner with the defendants' names, addresses or case/docket numbers because that information is exempt under Exemption (a), the Criminal Offender Record Information (CORI) Act and the second clause of Exemption (c). Ms. Kirchner appealed your denial. In her July 20th petition, Ms. Kirchner notes that she made the same request to the DAOs in each county in the Commonwealth of Massachusetts, and was provided with the case/docket numbers from the Berkshire DAO, Bristol DAO, Cape and Islands DAO, Essex DAO, Northwestern DAO, Suffolk DAO and Worcester DAO. Therefore, Ms. Kirchner appealed the partial denial by the Norfolk DAO. 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. SPR17/993 Page 2 July 25, 2017 Requirements for filing a petition for an appeal Whereas Ms. Kirchner did not provide the Records Access Officer (RAO) with a copy of her petition to the Supervisor of Records (Supervisor), this office provided the RAO with a copy. In petitioning the Supervisor, the requester must provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). 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, § 10(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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (a) The DAO's response states that Exemption (a) of the Public Records Law, known as the statutory exemption, will allow the DAO to withhold certain of the information. Exemption (a) 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 Gen. v. Collector ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes

Laura A. McLaughlin, Esq. SPR17/993 Page 3 July 25, 2017 records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under a statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The DAO cites the CORI Act as it operates through Exemption (a) of the Public Records Law to withhold the defendants' names, addresses and the case/docket numbers. G. L. c. 6, § 167. CORI is defined as: Any 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. The DAO has failed to meet its burden of specifically explaining how the defendants' names, addresses and case/docket numbers are exempt in their entirety as CORI. Exemption (c) -privacy clause Your April response also states that the defendants' names, addresses and case/docket numbers may be withheld because it is personal identifying information that may constitute an unwarranted invasion of privacy under Exemption (c) ofthe 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). The

Laura A. McLaughlin, Esq. SPR17/993 Page 4 July 25, 2017 DAO has claimed that the second clause of Exemption (c) applies to withhold the information in its entirety. 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. The second clause of Exemption (c) 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. See 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 disputes and reputation. I d. 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 in a law-abiding and efficient manner. Id. at 292. Upon reviewing the DAO's response, it is unclear how disclosure of the withheld information would result in personal embarrassment to an individual of normal sensibilities, whether the materials requested contain intimate details of a highly personal nature or whether the same information is available from other sources. Id. Therefore, I find that the DAO has not met its burden to establish that the second clause of Exemption (c) applies to withhold the information in its entirety. Conclusion I find that the DAO did not meet its burden of explaining why the defendants' names, addresses and case/docket numbers have been withheld in their entirety pursuant to G. L. c. 6, § 167, as it operates through Exemption (a) and the second clause of Exemption (c) of the Public Records Law. See G. L. c. 66, § 10(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979) (statutory exemptions are not blanket in nature).

Laura A. McLaughlin, Esq. SPR17/993 Page 5 July 25, 2017 Accordingly, whereas the DAO has indicated that a supplemental response will be provided, I will consider this administrative appeal closed with the proviso that the response is provided to Ms. Kirchner, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Ms. Kirchner may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, /lJJ(MA~ Rebecca S. Murray Supervisor of Records cc: Lauren Kirchner