Marcello Almieda v. Plymouth District Attorney's Office (SPR 20190138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 5, 2019 SPR19/0138 Gail M. McK enna, Esq. Plymouth District Attorney's Office 32 Belmont Street Brockton, MA 02303 Dear Attorney McKenna: I have received the petition of Marcello Almieda appealing the response of the Plymouth District Attorney's Office (Office) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 17, 2018, Mr. Almieda requested "any and all information in regard to [his] arrest on September 26, 2011 ...." The Office provided a response on January 2, 2019, denying access to responsive records pursuant to Exemptions (a) and (f) of the Public Records Law, and because Mr. Almieda has a unique right of access. G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the Office's response, Mr. Almieda petitioned this office and this appeal, SPR19/0138, was opened as a result. Purpose of request; identity ofrequestor 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 Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Almieda's purpose in making the request has no bearing on the public status of any existing responsive records. 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). 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

Gail M. McKenna, Esq. SPR19/0138 Page2 February 5, 2019 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, § 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 Office's January 2nd response In its January 2, 2019 response the Office states that in "Bougas v. Chief of Lexington, the Supreme Judicial Court held that 'discovery should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed by this court." Bougas v. Chief of Police of Lexington, 371 Mass 59, 64 (1976) .... Since post-trial discovery is also governed by the Massachusetts Rules of Criminal Procedure, it also would not be available under the public records law." The Office states that because these records involve murder, in which Mr. Almieda was convicted of, "[his] attorney will have all of the documents from the case." The office further states that " .... [a] s a defendant, [Mr. Almieda] ha[ s] a judicial right of access under the Massachusetts Rules of Criminal Procedure. Therefore, [Mr. Almieda' s] request is not cognizable under the public records law because, [he] has a 'unique right of access ..." The Office further claims that Exemptions (a) and (f) apply to withhold responsive records from disclosure. 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 of Lynn, 377 Mass. 151, 54 (1979); 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

Gail M. McKenna, Esq. SPR19/0138 Page 3 February 5, 2019 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 statute provides in relevant part: [R]ecords 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. G. L. C. 6, § 167. Under its Exemption (a) claim, the Office indicates that the "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.' G. L. c. 6, § 167 .. . . [I]t is a crime to release CORI." 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

Gail M. McKenna, Esq. SPR19/0138 Page 4 February 5, 2019 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). 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." See Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Office states that" ... the case file contains reports from interviews with witnesses." The Office asserts that under Exemption (f), "witness statements are exempt from disclosure under the public records law" and cites case law regarding the public policy considerations behind the Exemption to support its position." Unique right of access In his appeal petition, Mr. Almieda states that" ... my conviction is final and I am not represented by attorney." Based on Mr. Almieda's claim, in conjunction with the fact that the availability of discovery in criminal cases lies in the discretion of the trial judge, it is unclear how Mr. Almieda has a unique right of access to the requested records. See Bougas, 371 Mass at 64. Consequently, I find that Mr. Almieda's ability to obtain responsive records through a discovery motion is unlike statutory provisions that grant requestors a unique right to access records, such as the Criminal Offender Record Information (CORI) Act, or student record statutes. See G. L. c. 6, § 172; G. L. c. 71, §§ 34D, 34E. As a result, I find the Office has not demonstrated that Mr. Almieda has a unique right to access these records that precludes him from pursuing an appeal with this office. See 950 C.M.R. 32.08(1)(a). Burden of specificity 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, § 1O (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 511. The Office 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 ofrecords, or portions of the

Gail M. McKenna, Esq. SPR19/0138 Page 5 February 5, 2019 record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Office withheld responsive records without identifying the records. Therefore, the Office must identify the type of record(s) it has in its possession that it withheld. With respect to Exemption (a), it is unclear how all of the withheld records fall under the CORI Act; specifically, it is unclear how the records are "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. In addition, the Supreme Judicial Court has held that "there is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court's records accessible to the public." Globe Newspaper Co. v. Dist. Attorney for the Middle Dist., 439 Mass. 374, 384 (2003). With respect to Exemption (f), based on the Office's response, to the extent that the records contain witness information, the Office may permissibly withhold such portions from disclosure. Additionally, I find the Office has not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'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, § lO(a). The Office must explain why segregable portions cannot be provided. Waiver off ees In his petition for appeal, Mr. Almieda requests that this office" ... order the [Office] [to] provide any and all information within their possession that does not fall within the exceptions of privilege or privacy, be provided to me without cost forthwith." Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). 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 Office is ordered to provide Mr. Almieda with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations

Gail M. McKenna, Esq. SPR19/0138 Page 6 February 5, 2019 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Marcello Almieda