Eve Carson v. Office of the District Attorney - Essex District (SPR 20171090)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2017 SPR17/1090 David O'Sullivan, Esq. Assistant District Attorney Office of the District Attorney -Essex District 10 Federal Street Salem, MA 01970 Dear Attorney O'Sullivan: I have received the petition of Eve Carson appealing the response of the Office of the District Attorney-Essex District (DAO) to a request for public records. G. L. c. 66, § lOA; 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. Previous appeals This request was the subject of a previous appeal. SPR17/824 Determination of the Supervisor of Records (July 3, 2017). This office closed SPR17/824 ordering the DAO to provide Ms. Carson with a supplemental response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO provided a response dated August 7, 2017 in which it continues to deny access to certain portions of the responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Ms. Carson appealed and SPR1711 090 was opened. Personal status of requester Please note that the personal status of Ms. Carson in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Carson's status as a "non-blood relative part of the immediate family" will have no bearing on the status of 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 O'Sullivan SPR17/1090 Page 2 August 23, 2017 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, § 1O A( 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. 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. The DAO's August fh response The DAO continues to indicate that it intends to withhold portions of the responsive . record under Exemption (c) ofthe 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 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, which applies to requests for records that implicate privacy interests, is relevant to this appeal. 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.

David 0' Sullivan SPR17/1090 Page 3 August 23, 2017 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. 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. Id. 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. In its August i 11 response, the DAO indicated that "[r]ecords further describing the contents of any recovered totes, purses, luggage or other containers, would 'constitute an unwarranted invasion of personal privacy.' It is beyond dispute that such receptacles are constitutionally protected areas, which may only be invaded with probable cause .... The only reason this Office is privy to these 'especially personal' materials is that the victim, through no choice of her own, was a victim of a horrific crime. Thus, absent their introduction as an exhibit at trial, release of the information for some law enforcement purpose, or a valid order of a court of competent jurisdiction, such information is manifestly private." The DAO also asserted that," ... we have been in contact with the victim's legal next of kin with regard to Ms. Carson's numerous previous requests, and he strongly opposes release of private information pertaining to the victim to Ms. Carson, or to anyone. G. L. c. 258B, § 3(h) (rights afforded victims and witnesses include right to 'request confidentiality in the criminal justice system.'). Where the legal next of kin have made their wishes clear, it is not the obligation of this Office to again inquire of them in response to each new request, which would not only be wasteful of public resources, but could cause additional pain and disruption to the victim's family." Based on the PETA decision, the DAO has not sufficiently explained what materials it has in its possession or how such materials or contents "contain intimate details of a highly personal nature." The DAO has not met its burden in explaining how providing a list of the contents of the recovered tote, purse, luggage or other containers ofthe deceased victim would result "in personal embarrassment to an individual of normal sensibilities" or whether this

David O'Sullivan SPR17/1090 Page 4 August 23, 2017 information is available from other sources. Further, the DAO has not detailed whether G. L. c. 258B, § 3(h), as operating through Exemption (a) to the Public Records Law, allows these records to be withheld. G. L. c. 4, §7 (26)(a). Exemption (j) The DAO indicated that it was withholding records pertaining to a specific individual's "meeting with authorities February 1982 at Harvard University" and the individual's "letter and date of letter with description of missing bracelet" under 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). 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). Redactions maybe appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 290 n.l8 (1979). Exemption (f) 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 Reinstein, 378 Mass. at 289-90. In regards to the ongoing investigation claim, the DAO indicated that, "[a]s we have explained in previous correspondence and in meetings with Ms. Carson, there is no statute of limitations for the crime of murder, this Office is charged with investigating the matter, and that investigation remains open." The DAO further stated, "[m]oreover, an active investigation is not a prerequisite to invocation of the exemption. Although passage of time is a factor in determining whether the exemption applies, the fact that an investigation may be inactive, or even concluded, is not dispositive. Rafuse v. Stryker, 61 Mass. app. Ct. 595, 600-601. ... 'Even materials relating to an inactive investigation may require confidentiality in order to convince citizens that they may safely confide in law enforcement officials."' The DAO also stated that, "[a]s we have previously made clear to Ms. Carson, it is essential, particularly in complex and unsolved murder investigations, to have the cooperation of

David 0' Sullivan SPR17/1090 Page 5 August 23, 2017 the victim's family, who may possess information key to solving the matter. As the exemption contemplates, maintaining confidentiality of communications is essential to preserving that relationship particularly where, as here, confidentiality has been requested. The essential cooperation would be seriously jeopardized if the communications, after some arbitrary time interval, became public." In camera inspection In order to analyze the legal basis of the DAO's position, it is the finding of this office that an in camera review of an unredacted copy of a representative sample of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the DAO. See 950 C.M.R. 32.08(4 ). After I complete my review ofthe documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o]n doubtful questions an in camera inspection may be appropriate"). These records should, for example, demonstrate the active nature of the investigation. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, you are hereby ordered to provide this office with an unredacted copy of a representative sample of the responsive records without delay.

David O'Sullivan SPR17/1090 Page 6 August 23, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Eve Carson