Brandon L. Campbell v. Office of the District Attorney - Suffolk County (SPR 20171460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 23, 2017 SPR17/1460 Claudia Arno Office of the District Attorney - Suffolk County One Bullfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Arno: I have received the petition of Brandon Campbell, Esq., on behalf of his client, appealing the response of the Office ofthe District Attorney-Suffolk County (DAO) to a request for public records. G. L. c. 66, § lOA; 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" an identified criminal matter. 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."). In addition, the Supervisor of Records (Supervisor) may deny an appeal if the public records in question are the subject of disputes in active litigation, administrative hearings or mediation. 950 C.M.R. 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

ClaudiaArno SPR17/1460 Page 2 October 23, 2017 32.08(2)(b). As such, Attorney Campbell may wish to consider another means of seeking to obtain any existing responsive records. Previous Appeal This request was the subject of a previous appeal. See SPR17/ 1150 Determination of the Supervisor of Records (August 23, 2017). I closed SPR1711150 with the proviso that the DAO provide Attorney Campbell with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a letter dated September 22, 2017, the DAO provided a response in which it continues to deny access to the responsive records claiming the records are 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). Unsatisfied with the DAO's response, Attorney Campbell petitioned this office and this appeal, SPR17/ 1460, was opened as a result. 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, § 1 O(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. The DAO's September 22nd response In its September 22nd response, the DAO listed 48 types of records responsive to Attorney Campbell's request that it has in its possession. The DAO also clarified that based on communications between the office and Attorney Campbell, it understood the latter's request as excluding documents pertaining to post conviction proceedings and documents filed with the court. The DAO cited the Commonwealth v. Montefusco decision which held that "there is also

ClaudiaArno SPR17/1460 Page 3 October 23, 2017 no obligation on the district attorney to produce documents pursuant to the public records law ... because materials relating to an allegation of sexual assault are exempt from that law. See G. L. c. 41, § 97D and G. L. c. 265, § 24C. 452 Mass. 1015, 1016 (2008)." The DAO indicated that "although the statutes the court cited refer specifically to the confidentiality of police reports and records maintained by law enforcement, Montefusco explicitly applied this principle to records of the district attorney's office .... Thus, under Montefusco, materials of a district attorney's office pertaining to a sexual assault case (and not merely the personal identifying information of the victim) are exempt from production under the public records law. ..." Also, the DAO indicated that the records are further exempted from production under the Public Records Law because they include "Grand jury materials ... ; Criminal Offender Record Information and any information obtained through Criminal Justice Information systems (including booking photographs, police reports, motor vehicle information, and criminal charges) for individuals other than the requester (G. L. c. 6, §§ 167 A, 172); Attorney work product ... ; and Medical records ... 45 C.F.R §§ 160, 164.512(e); G. L. c. 4, §7 (26)(c)." Exemption (a) The DAO claims the responsive records may be withheld under G. L. c. 41, § 97D and G. L. c. 265, § 24C as they operate through Exemption (a). Exemption (a), known as 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 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 of records if a statute mandates nondisclosure. Gen. Chern. Corp. v. Dep't of Envtl. 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

ClaudiaAmo SPR17/1460 Page 4 October 23, 2017 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 Attorney Campbell indicated that his client requests a "segregable portion" of the file. However, whereas the responsive records consist of information related to the type specifically exempted by statute, I find that the DAO acted properly in withholding the requested records from disclosure. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brandon Campbell, Esq.