Paulo Tavares v. Office of the District Attorney - Plymouth District (SPR 20180953)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Recovds July 12,2018 SPR181953 Keith A. Garland, Esq. Office of the District Attorney Plymouth District - 32 Belmont Street, P.O. Box 1665 Brockton, MA 02303-1665 Dear Attorney Garland: I have received the petition of Paulo Tavares appealing the response of the Office of the District Attorney Plymouth District (Office) to a request for public records. G. L. c. 66, 10A; - see also 950 C.M.R. 32.08(1). Specifically, Mr. Tavares requested a "copy of [an identified -- individual's] criminal case file in the possession of the Plymouth County DA's office" and lists particular categories of records that he is seeking. The Office denied his request, claiming that Mr. Tavares has a unique right of access to the requested records and that some of the responsive records are exempt from disclosure pursuant to the Criminal Offender Record Information (CORI) Act and Exemption (f) of the Public Records Law. 950 C.M.R. 32.08; G. L, c. 6, § 167- 178B; G. L. c. 4, 5 7(26)(f). 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, § 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, lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk ~istv:. Flatlev, 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. - One Ashburton Place, Room 1719 , Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Keith A. Garland, Esq. Page 2 July 12,2018 Purpose of request; identity of requestor 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. Bou~avs. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Mr. Tavares 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); See also 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, Mr. Tavares may wish to consider another means of seeking to obtain any existing responsive records. 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 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 of Lynn, 377 Mass. 15 1, 54 (1 979); 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 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

Keith A. Garland, Esq. Page 3 July 12,2018 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Office cites the CORI Act as applicable to withhold responsive police reports. Please note that an updated definition of CORI is currently in effect. CORI is defined as: "Criminal offender record information", records 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 be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, 5 167 (emphasis added). The Office indicates that "in regards to the police reports, Criminal Offender Record Information (CORI) is exempt from disclosure under the Public Records Law." Despite the Office's response, it is unclear how the police reports fall under the CON Act; specifically, it is uncertain how the police reports are "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. Consequently, it is unclear whether the Office possesses responsive records that are considered public in light of the new CORI definition. 0 Exemption 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

Keith A. Garland, Esq. Page 4 July 12,2018 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. Bou~avs. Chief of Police of Lexington, 371 Mass 59,62 (1976). 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. 28 1,290 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 Reinstein, 378 Mass. at 289-90. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bouaas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n. 18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co, v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are Id. familiar with the individual and his career." at 43 8. The Office indicates that "witness statements are exempt from disclosure under the public records law." Although the Office claims Exemption (f) permits withholding of witness statements, it is unclear if the statements are attributable to a voluntary witness. If so, it is additionally uncertain how the responsive record(s) identifies a voluntary witness and why redaction is not possible to preserve witness anonymity. See Antell 52 Mass. App. Ct. at 248. Burden of specificity; segregable portions; unique right of access Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 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 Office's June 4thr esponse did not contain the specificity required in a denial of access to public records. Instead, the Office's response cites the CORI Act and Exemption (f) without sufficient explanation as to the statute or exemption's applicability to the responsive

Keith A. Garland, Esq. Page 5 July 12,2018 records or portions of the records. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, 6 lO(b)(iv). It is also unclear why records are being withheld in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). 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). The Office must explain why any non- exempt, segregable portions of the responsive records cannot be provided. The Office must 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)T. he Office must identify all the types of records it has in its possession that are responsive to Mr. Tavares' request. Further, the Office asserts that Mr. Tavares' "request is not cognizable under the public records law because [he has] 'a unique right of access to the record through statutory, regulatory, judicial, or other applicable means.' See 950 C.M.R. 32.08." However, the Office's response fails to identify the means affording Mr. Tavares a "unique right of access" to the requested records allowing the Office to treat is request as something other than a public records request under the Public Records Law. In light of the above reasons, I find that the Office did not meet its burden in responding to the records requests in order to comply with the Public Records Law and its Access Regulations. G. L. c. 66, 5 10(a). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Office has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Office is ordered to review the records, redact where necessary, and provide Mr. Tavares 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 Office may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Keith A. Garland, Esq. Page 6 July 12,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Paulo Tavares