Brandon L. Campbell v. Office of the District Attorney - Suffolk County (SPR 20171150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 7, 2017 SPR17/1150 Dara Kesselheim, Esq. Assistant District Attorney Office of the District Attorney - Suffolk County One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Attorney Kesselheim: I have received the petition of Brandon Campbell, Esq., on behalf ofhis client, appealing the response of the Office of the District Attorney- Suffolk County (DAO) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, on June 24, 2017, Attorney Campbell requested "a copy of the Commonwealths/District Attorney's Office case file, regarding" a specific criminal matter. In responses dated June 28, 2017 and August 7, 2017, the DAO denied his 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) of the Public Records Law. G. L. c. 4, § 7(26)(a). 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 rec.eived 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. 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

Dara Kesselheim, Esq. SPR17/1150 Page 2 September 7, 2017 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. Status ofrequester!Purpose of request In his petition Attorney Campbell indicates his intent to obtain the requested records on behalf of his client. Please note that the reason for which a requestor seeks access to or a copy of a public record 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, Attorney Campbell's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means."). As such, Attorney Campbell may wish to consider another means of seeking to obtain any existing responsive records. The DAO's June 28th and August 111 responses In the DAO's June 28th response, the DAO indicated that "on September 14, 2016, a letter was sent to you denying the request as materials relating to allegations of rape and/or sexual assault are specifically exempt from disclosure under the Public Records Law. See G. L. c. 41, § 97D; G. L. c. 265, § 24C; G. L. c. 4, § 7(26)(a)." In its August i 11 response, the DAO explained that, "[the individual] was charged with aggravated rape as well as armed robbery, assault with a dangerous weapon, and assault and battery with a dangerous weapon. As noted in my previous letter, the Supreme Judicial Court wrote in Commonwealth v. Montefusco: 'There is also no obligation on the district attorney to produce the documents pursuant to the Public Records Law, G. L. c. 66, § 10, as [the defendant] sought to have him do, because materials relating to an allegation of sexual assault are exempt from that law. See G. L. c. 41, § 97D; G. L. c. 265, § 24C.' 452 Mass. 1015, 1016 (2008)." The DAO also indicated that, "[a]lthough the statutes that the court cited refer specifically to the confidentiality of police reports and records maintained by law enforcement, Montefusco explicitly applied this principle to records ofthe district attorney's office .... Thus, under Montefusco, materials of a district attorney's office pertaining to a sexual assault case (and

Dara Kesselheim, Esq. SPR17/1150 Page 3 September 7, 2017 not merely the personal identifying information of the victim, as you propose in your letter) are exempt from production under the Public Records Law." Exemption (a) The DAO claims the responsive records may be withheld under G. L. c. 41, § 97D and G. L. c. 265, § 24C as it operates through 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 ofLvnn, 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. 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

Dara Kesselheim, Esq. SPR17/1150 Page 4 September 7, 2017 maintained by the police departments in a manner that shall assure their confidentiality G. L. c. 41, § 97D. It is unclear the types of records the DAO has in its possession that are responsive to this request and whether all of the responsive records are such that they fall under G. L. c. 265, § 24C or G. L. c. 41, § 97D. Accordingly, the DAO is ordered to provide Attorney Campbell with a response to the request which clarifies these issues, 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Brandon Campbell, Esq.