Vanessa M. Brown, Esq. v. Office of the District Attorney - Norfolk District (SPR 20171223)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 19, 201 7 SPR17/1223 Laura A. McLaughlin, Esq. Office of the District Attorney-Norfolk District 45 Shawmut Road · Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of Vanessa M. Brown, Esq. of Morgan, Lewis & Bookius, on behalf of her client, Boston Globe Media Partner, appealing the response of the Office of the District Attorney-Norfolk District (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Brown requested a copy of the 911 call recording made at or around 2:25PM on Friday, September 2, 2016 by an identified person. In its April14, 2017 response, the DAO withheld the 911 call recording in its entirety pursuant to Exemption (f) of the Public Records Law. Attorney Brown appealed the DAO's response to this office. Prior appeal and determination The responsive record was the subject of a prior appeal. See SPR17/ 914 Determination of the Supervisor of Records (July 20, 2017). In my July determination, I found that the DAO had not met its burden to establish how production of this particular responsive tape recording "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 closed the appeal with the proviso that the DAO provide Attorney Brown with a supplemental response concerning her request and its exemption claim. In a July 26th supplemental response, the DAO claims that the 911 call recording should be withheld pursuant to the second clause of Exemption (c), because the defendant maintains a privacy interest in his statements and voice. In addition, the DAO continues to withhold the recording pursuant to Exemption (f) of the Public Records Law. Attorney Brown appealed the DAO's July 26th response and the current appeal was opened. 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. SPR17/1223 Page2 September 19, 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, § 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 (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. Exemption (c) The DAO claims that the 911 recording may be withheld pursuant to the second clause of Exemption (c) ofthe Public Records Law. 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). 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 ofReal 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 riormal 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

Laura A. McLaughlin, Esq. SPR17/1223 Page 3 September 19, 2017 disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar ofMotor 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, 4 77 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. The DAO claims that the defendant maintains a privacy interest in his statements and voice. Your July response states that the defendant was arraigned on March 23, 2017 but that the 911 recording was not played for the judge nor was a transcription of the defendant's statements read by the Assistant District Attorney. I find that it is unclear how disclosure of the recording would personally embarrass the subject of the recording, since he has already been charged and arraigned. It is also unclear how the content of the recording is an "intimate detail of a highly personal matter," under the second clause of Exemption (c). The DAO has not met its burden of proving that the 911 call recording may be withheld in its entirety under the privacy clause of Exemption (c). Exemption (f) The DAO continues to withhold the 911 recording pursuant to Exemption (f) of the Public Records Law. Exemption (f) 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). An investigative agency is not required to demonstrate prejudice to withhold the identities ofvoluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 n.18 (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 id. at 289-90.

Laura A. McLaughlin, Esq. SPR17/1223 Page4 September 19, 2017 In my July determination, I found that it was unclear how disclosing the 911 recording would disclose confidential investigative techniques, or sources of information, nor was it clear how disclosure would dissuade individual citizens to come forward and speak freely with police concerning matters under investigation. See WBZ-TV4 v. Dist. Attorney for Suffolk Dist., 408 Mass. 595, 603 (1990) (discussing the policy concerns associated with Exemption (f)). Accordingly, I found that the DAO did not meet its burden to establish how production of this particular 911 recording "would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest," as required by Exemption (f). In its subsequent response dated July 26th, the DAO states, "[t]he case required extensive investigation that remains on-going. The 911 recording remains an integral part of the investigation and prosecution. Disclosure would gravely impede the investigation and integrity of the prosecution. As stated in my April 14th response, an arraignment does not terminate an investigation. Release of the recording would prematurely disclose the DAO's case prior to trial." You explained that up until the trial the DAO is actively preparing the case, developing theories, and working with law enforcement to speak with witnesses or new sources of information; which you contend falls squarely within the investigatory exemption. Further, it is your belief that the defendant may intend to file motions to suppress his statements or raise other evidentiary issues. You also stated that disclosure to the public could jeopardize the defendant's right to present a defense. As your July 26th response informed Attorney Brown, the DAO did not play the 911 recording during the arraignment, the Assistant District Attorney stated that the defendant called 911. In that same response, you indicated " [t ]he facts stated to the judge were from the Assistant District Attorney's knowledge of police reports, medical records and accident reconstruction. During arraignment, it is the Commonwealth's obligation to make the judge aware of the underlying facts to support the criminal charges and bail request." See G. L. c. 276, §58. While the DAO states that the 911 recording itself was not played in the courtroom at arraignment, the Assistant District Attorney's disclosure of specific information from the police reports, medical records and accident reconstruction, revealed the identity of the defendant and victim, and may have already revealed the essence of the information on the 911 recording. As I informed the DAO in my previous determination, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 1 0( a); Reinstein 3 78 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The DAO has claimed that the recording cannot be redacted because Attorney Brown and her client already know the identity of the 911 caller. I remind the DAO that the caller and the victim were identified to the public at the arraignment, when the Assistant District Attorney identified the subjects in an open courtroom. I find that the DAO has not met its burden pursuant to Exemption (f) of withholding the 911 recording in its entirety.

Laura A. McLaughlin, Esq. SPR17/1223 Page 5 September 19, 2017 Order Accordingly, the DAO is hereby ordered to provide Attorney Brown with a subsequent response, made 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. · Attorney Brown may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Vanessa M. Brown, Esq.