Jaear Williams v. Plymouth County District Attorney's Office (SPR 20181014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23,2018 SPR18/1014 Gail M. McICenna Esq. Plymouth County District Attorney's office 166 Main Street Brockton, MA 02301 Dear Attorney McKenna: I have received the petition of Jaear Williams appealing the response of the Plymouth County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, 5 10A; see & 950 C.M.R. 32.08(1). Specifically, on April 22, 2018, Mr. Williams requested "any and all records pertaining to case docket no. 103080; 103081, including but not limiting to: reports, statements, photo graphs, transcripts, tape recordings, CD's, any and all proffer statements made." Previous appeal This request was the subject of a previous appeal. See SPR181824 Determination of the Supervisor of Records (June 20,201 8). In my June 2othD etermination, finding that the DAO did not meet its burden to withhold responsive records in their entirety under Exemptions (a) and (f) of the Public Records Law, I ordered DAO to review the requested records, redact where necessary, and produce responsive records in its possession in a manner consistent with the order, the Public Record Law, and its Regulations. Following the June 2othd etermination, the DAO provided a response on June 22,2018 , reiterating that the responsive records are exempt from disclosure pursuant to Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). 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, 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). - One Ashburton Place, Room 1719 , Boston, Massachusetts 02108 (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Gail M. McKenna, Esq. Page 2 July 23,2018 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, 5 11 (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, $ 1O (b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The DAOJsJ une 22ndr esponse In its June 22,201 8 response, the DAO indicates that because the records involve a murder conviction, Mr. Williams' "attorney will have all of the documents from the case." The DAO also claims Mr. Williams has a judicial right of access. As such, Mr. Williams' request "is not cognizable under the [Plublic [Rlecords [Llaw because [he has] 'a unique right of access to the record through statutory, regulatory, judicial, or other applicable means. . . . 'Discovery should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed by [the Supreme Judicial Court].' Bouaas v. Chief of Police of Lexinriton, 371 Mass 59, 62 (1976)." Further, the DAO claims the following Exemptions are applicable to withhold responsive records from disclosure. Exemption (a) The DAO claimed it withheld responsive records under G. L. c. 6, $ 167, the Criminal Offender Record Information (CORI) Act, as it operates 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. 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

Gail M. McKenna, Esq. Page 3 July 23,2018 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 CORI Act, G. L. c. 6, 5 167, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI 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 Under its Exemption (a) claim, the DAO indicates that "[tlhis case file is replete with non-severable CORI matter correlated with defendant specific information, and cannot be disclosed. . . . The entire file is '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."' The DAO indicates that there are criminal and civil penalties for wrongfully disclosing criminal information and asserts that ". . . a CORI release or waiver does not change the exempt nature of information contained in [Mr. Williams'] file." Exemption ('fl The DAO also states 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

Gail M. McKenna, Esq. Page 4 July 23,2018 prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest 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). 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. (0 Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption 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. Under its Exemption (f) claim, the DAO claims, "the case file contains reports from interviews with witnesses." Citing the Bougas and Flatley decisions to support its position, the DAO states that the public policy behind this Exemption includes ". . . the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, [and] the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation. . . ." Burden of specificity; segvegable portions 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, $ lO(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 Cornrn'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. Based on the DAO's response, it is unclear what types of records the DAO has in its possession that it is withholding from disclosure, aside from police reports and witness statements. 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, $lO(b)(iv); 950 C.M.R. 32.06(3)(~)(4)H. ere, the DAO withheld records without identifying the records. Therefore, the DAO must identify the type of record(s) it has in its possession that it withheld. Further, while the DAO claims the "entire file is '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,"' it remains unclear how

Gail M. McKenna, Esq. Page 5 July 23,2018 the records in the file each constitute CON. As such, I find that the DAO has not met its burden of explaining with specificity how the file, in its entirety, is exempt from disclosure. Reinstein v. Police Cornrn'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). With respect to Exemption (f), in my June 2ot" determination, I found that "[tlo the extent the records contain information identifying voluntary witnesses, the identifying information may be withheld." See SPR181824 Determination of the Supervisor of Records (June 20,2018 ). Further, the DAO asserts that Mr. Williams' "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 DAO's response fails to identify the means affording Mr. Williams a "unique right of access" thereby barring the application of the administrative appeal process under the Public Records Law. In light of the foregoing reasons, I find the DAO did not meet its burden in responding to the public 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 but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the DAO is ordered to provide Mr. Williams with a response to the request, 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, V Rebecca S. Murray Supervisor of Records cc: Jaear Williams