Matthew Rocheleau v. Cape & Islands District Attorney's Office (SPR 20190126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 4, 2019 SPR19/126 Tara L. Miltimore, Esq. Assistant District Attorney Cape and Islands District Attorney's Office 3231 Main Street, P.O. Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Cape and Islands District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 27, 2018 Mr. Rocheleau requested the following records: • Any all materials, including but not limited to documents and recordings, that are referenced as being "attached" in reports filed as statements of facts in support of an application for criminal complaint filed in Nantucket District Court ( case 1888CR000598 vs. Kevin S. Folwer, aka Kevin Spacey) by State Police Trooper and Cape & Islands DA member Gerald F. Donovan, including but not limited to: o An attachment Trooper Donovan references as being in connection to the victim in the case reporting the assault via telephone to Nantucket Police Officer Kelly on October 31, 2016; o An audio recorded interview with a potential witness in the case in New York City on Jan. 18, 2018. o A March 26, 2018 interview with a potential witness in the case in Naples, Florida. o A March 2 7, 2018 interview with another potential witness in the case in West Palm Beach, Florida. The DAO initially responded on January 16, 2019 by denying access to responsive records under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). 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

Tara L. Miltimore, Esq. SPR19/126 Page 2 February 4, 2019 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, § lOA(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 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal In its January 16th response the DAO asserts "[p ]lease be advised this is an ongoing criminal case. As such, the investigative documents and materials you seek are exempt from disclosure at this time." The DAO cites Exemptions (c) and (f) in support of this position. You provided a supplemental response to Mr. Rocheleau on February 1, 2019. Exemption (c) 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 of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Tara L. Miltimore, Esq. SPR19/126 Page 3 February 4, 2019 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 disputes and reputation. Id. 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 in a law-abiding and efficient manner. Id. at 292. In its January 16th response the DAO notes "[h]ere, releasing police reports containing the victim's name and detailing the alleged sexual assault would constitute an unwarranted invasion of personal privacy. See Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979)." Exemption (I) 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 of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of

Tara L. Miltimore, Esq. SPR19/126 Page4 February 4, 2019 Boston, 3 78 Mass. 281, 290 n.18 (1979). 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). 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. In its January 16th response the DAO indicates "[t]he public release of any police reports which could contain potential witness statements and other such evidence would likely jeopardize not only the police's investigative efforts but would also jeopardize the pending criminal case." In his appeal petition Mr. Rocheleau asserts "[t]he Globe understands that given the nature of the alleged crime, some materials may not be subject to disclosure or may need to be redacted. But the Globe disagrees with the office's assertion that no materials whatsoever pertaining to this case can be released. The Globe contends that some materials related to this case can and should be provided as a matter of public record." He also notes "[f]or example, there is a statute that says reports of sexual assault and communications between police officers and victims of such offenses shall not be public. But according to documents from agencies involved in investigating this case, the investigation into this allegation involved more than just the victim's initial report and subsequent communications with the victim. Furthermore, it appears that the criminal investigation into this matter has been completed and led to a public arraignment." In its February 1st supplemental response, the DAO asserts" ... this is an ongoing criminal investigation as well as an ongoing criminal prosecution. As such, police reports, witness statements, recordings and any other potential evidence is exempt from public disclosure. See M.G.L.c. 4 §7 (26)(f)." You further indicate that "[t]he State Police have written police reports documenting their investigation into an incident which has led to criminal proceedings. These reports document witness accounts, and other information relative to the pending criminal matter which if prematurely disclosed would jeopardize the criminal proceeding. See Bougas v. Chief of Police, 371 Mass. 59 (1976) ('The exemption provided in G.L.c.4 §7, Twenty-sixth, recognizes that the disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest.')" The DAO continues by indicating ''[f]urthermore, the Bougas case states 'included among the purposes of providing this exemption would be the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation and the creation of initiative that police officers might be completely candid in recording their observations hypotheses and interim conclusions.' Id. at 62.'' You conclude by noting "[t]he public release of any police reports and potential information at this time would seriously

Tara L. Miltimore, Esq. SPR19/126 Page 5 February 4, 2019 jeopardize this criminal proceeding. Therefore, the Cape & Islands District Attorney's Office denies your request for information and documents while the criminal case is pending." In light of the DAO's supplemental response that provides additional information regarding its Exemption (f) claim, I will consider this appeal closed. Mr. Rocheleau may appeal the substantive nature of the DAO's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau