Geraldine Houde v. Norfolk County District Attorney's Office (SPR 20180468)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 24,2018 SPRl81468 Michael McGee, Esq. Assistant District Attorney Norfolk County District Attorney's Office 45 Shawrnut Road Canton, MA 02021 Dear Attorney McGee: I have received the petition of Geraldine Houde appealing the response of the Norfolk County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, 5 10A; see -also 9 50 C.M.R. 32.08(1). Specifically, Ms. Houde requested "a copy of [an identified individual's] autopsy and pathology reports from December 1978 and January 1979 and a copy of the chain of custody report . . ." The DAO provided a response denying access to responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the DAO's response, Ms. Houde petitioned this office and this appeal, SPR181468, was opened as a result. Petitions to the Supervisor of Records Ms. Houde is reminded that when appealing to the Supervisor of Records, "the requestor shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses . . ." 950 C.M.R. 32.08(1)(g). Purpose of request; identity of requester 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 requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexin~ton3, 71 Mass. 59,64 (1976). Accordingly, Ms. Houde's purpose in making the request has no bearing on the public status of any existing responsive records. One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (6 17) 727-2832- Fax: (6 17) 727-59 14 sec.state.ma.us/pre * pre@sec.state.ma,us

Michael McGee, Esq. Page 2 April 24, 20 18 Tlze 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, 5 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 1O (b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlze DAO's response In its response, the DAO claimed it withheld responsive records because they are exempt from disclosure at this time, pursuant to Exemptions (a), (c), and (f) of the Public Records Law. The DAO also cited cases to support its decision for non-disclosure. Exemption (a) The DAO indicated that it withheld responsive records under G. L. c. 6, Q 167 and G. L. c. 38, 5 2, as they operate through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute 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. Attorney Gen. v. Collector of Lynn, 377 Mass. 151 , 54 (19 79); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that

Michael McGee, Esq. Page 3 April 24,20 18 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 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 has cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, 5 167 and G. L. c. 38, § 2, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as: [Rlecords and data in any communicable form compiled by a Massachusetts 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, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. 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 . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. Office of Chief Medical Examiner; Qualifications, Powers, and Duties of Chief Medical Examiner; District Medical Examiners. The chief medical examiner, with approval of the secretary of the executive office of public safety, shall promulgate rules for the disclosure of autopsy reports, which shall not be deemed to be public records, to those who are legally entitled to receive them. If a medical examiner conducts an autopsy on a body of a deceased person who within six months before the date of death received services from a facility or program operated, contracted for, or licensed by the department of mental health, the office of the chief medical examiner shall provide a copy of the autopsy report, upon request, to the commissioner of mental health for the purpose of completing an investigation into the circumstances surrounding the death, if a next of kin does not object thereto. The chief medical examiner, with

Michael McGee, Esq. Page 4 April 24,20 18 the approval of said secretary, may establish fees for providing autopsy reports to those'who are legally entitled to receive them. . . Nothing in this section shall be construed to prohibit the office of the chief medical examiner from providing a copy of the autopsy report of a decedent to the decedent's surviving spouse, person in the first degree of consanguinity or, in the event there is no surviving spouse or person in the first degree of consanguinity, to the person entitled to receive the body. Exemption (c) The DAO claimed it withheld responsive records pursuant to Exemption (c) of the 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 First clause of Exemption (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). The first clause creates a categorical exemption for personnel and medical information that relates to Id. an identifiable individual and is of a "personal nature." at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Personnel information that relates to an identifiable individual is also exempt from disclosure. Globe Newspaper Co., 388 Mass. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure." Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the

Michael McGee, Esq. Page 5 April 24,20 18 first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 43 1 Mass. 792,798 (2000). Second clause of Exemption (c) 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. 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 Id. disputes and reputation. 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 Id. in a law-abiding and efficient manner. at 292. Exemption @ The DAO indicated that it withheld responsive records 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

Michael McGee, Esq. Page 6 April 24,20 18 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. Bouaas v. Chief of Police of Lexinaon, 371 Mass 59,62 (1 976). Redactions may be 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 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." Reinstein, 378 Mass. at 289-90. Burden of specijicity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, 5 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . ."); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The DAO did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 lO(b)(iv); 950 CMR 32.06(3)(~)(4)H. ere, the DAO withheld responsive records without identifying the records. Therefore, the DAO must identify the type of record(s) it has in its possession that it withheld. Further, the DAO's initial response did not contain the specificity required in a denial of access to public records. Instead, the DAO's response cites Exemptions (a), (c), and (f) without any further explanation as to the exemptions' applicability to the requested records. The DAO is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Consequently, I find that the DAO has not satisfied its burden in responding to this records request. As stated above, the custodian bears the burden to prove with specificity any exemption that applies. G. L, c. 66, 5 lO(b)(iv). Additionally, a custodian of a record shall not only cite an exemption but must explain with specificity why the exemption applies to a withheld or redacted portion of the responsive record in order to comply with the Public Records Law and its Access Regulations. G. L. c. 66, 5 10(a). Additionally, the DAO has not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comrn'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). I understand a Public Records Division staff attorney

Michael McGee, Esq. Page 7 April 24,20 18 contacted your office about this appeal. Conclusion Given that the DAO did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the DAO is ordered to review the records, redact where necessary, and provide Ms. Houde with responsive records, 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. The DAO may file a request for reconsideration within ten business days of the date of this determination letter. Sincerely, V Rebecca S. Murray Supervisor of Records cc: Geraldine Houde