Matthew Rocheleau v. Nantucket, Town of - Police Department (SPR 20190210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 12, 2019 SPR19/210 Charles Gibson Deputy Chief of Police Nantucket Police Department 4 Fairgrounds Road Nantucket, MA 02554 Dear Deputy Chief Gibson: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Nantucket Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Rocheleau requested the following records: Any/all materials from any/all reports of, and investigations into, alleged criminal wrongdoing by Kevin S. Fowler, aka Kevin Spacey ... including but not limited to a report made to Nantucket Police about Mr. Fowler/Spacey on or about Oct. 31, 2018 and any resulting investigative documents and communications from that case, including but not limited to materials from a conversation Nantucket Police Sergeant Klinger had with a person who owned the Club Car restaurant during the summer of 2016. (In case this helps: According to a State Police Detective from the Cape & Islands DA office, the Oct. 31, 2016 report was made by a victim who alleged being assaulted on or about July 7-8, 2016. The victim made this report via telephone to Nantucket Police Officer Kelly). Previous appeal This request was the subject of a previous appeal. See SPRl 8/2102 Determination of the Supervisor of Records (January 14, 2019). In my January 14th determination I ordered the Department to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded on January 28, 2019. Mr. Rocheleau appealed and SPR19/210 was opened as a result. 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

Charles Gibson SPR19/210 Page 2 February 12, 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal The Department initially responded on December 27, 2018 by denying access to responsive records under Exemrtion (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); G. L. c. 41, § 97D. In my January 14t determination I found it was unclear which responsive records the Department possesses. I also found it was unclear how all the responsive records constitute "reports of rape and sexual assault or attempts to commit such offenses" or "communications between police officers and victims of such offenses or abuse" that are exempt from disclosure under G. L. c. 41, § 97D. In its January 281 h response the Department lists the documents it possesses and cites Exemptions (a), (c), and (f) of the Public Records Law in support of withholding responsive records. In his appeal petition Mr. Rocheleau indicates "[t]he Globe disagrees with the [D]epartment's notion that it can withhold all of the responsive materials and would like to continue its appeal of this matter. The Globe still contends that at least some of the responsive materials can be released even if certain documents must be withheld or redacted." He also requests that the Department provide the date that certain records were created. On January 29, 2019 the Department provided certain information regarding the creation dates of the 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

Charles Gibson SPR19/2IO Page 3 February 12, 2019 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 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. G. L. c. 41, § 97D provides in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality. ... G. L. C. 41, § 97D. In its December 2ih response the Department indicates "[t]here was a report regarding the subject matter in your request on or about the date listed in your request, however these records will not be released." In the January 28th response you assert "[t]he records requested above involve the police investigation of an offense where the reports are protected from release as a matter oflaw by Chapter 41, section 97D of the General Laws." 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).

Charles Gibson SPR19/210 Page4 February 12, 2019 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. 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 28th response the Department indicates "[t]he second clause of exemption 'c' applies in this case. While the second clause of Exemption (c) does not protect all data relating to specifically named individuals, it does only permit custodians of records to withhold 'intimate details ofa highly personal nature.' Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston. 380 Mass. 623, 625 (1980) (emphasis added). The records contained in the Nantucket Police Reports and the Victims statement include details of a sexual assault, which are highly personal in nature." 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

Charles Gibson SPR19/210 Page 5 February 12, 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). 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 Boston, 378 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 28th response the Department references providing confidentiality to individuals so that they will speak openly about matters under investigation and asserts "[s]ince you, the requester, already has knowledge of the identity of the victim involved in the incident noted in the report, the Department is withholding release of the record(s) because it would not be possible for the Department to redact the report(s) in a manner as to avoid indirect identification of the voluntary witness and complainant." You also reference a pending criminal trial and the risk of tainting the potential jury pool; specifically you note "[t]he extensive links among the victim's family, members of the over-all jury venire, and trial witnesses demonstrate the network of social relations connecting this community, of which the victim was a valued member, and to which the defendant was an outsider." The Department further notes "[t]he Nantucket Police Department has not released any of these records publicly or to the Massachusetts Trial Court. The Cape and Islands District Attorney's office is actively prosecuting this sexual assault and the records specified herein are part of the Commonwealth's prosecution of Kevin Fowler (aka Kevin Spacey), and any premature release of the records may adversely affect the Commonwealth's case." Records independent from the Cape and Islands District Attorney's Office It should be noted that Mr. Rocheleau has also sought records regarding this matter from the Department of State Police and the Cape and Islands District Attorney's Office. See SPR19/059 Determination of the Supervisor of Records (January 23, 2019); SPR19/126 Determination of the Supervisor of Records (February 4, 2019). I find that the Department must confirm whether it possesses any records independently from the Cape and Islands District Attorney's Office. If it does, the Department must also explain which exemption'S to the Public Records Law it is invoking to withhold such records. See G. L. c. 66, § 1O (b )(ii)-(iv).

Charles Gibson SPR19/210 Page 6 February 12, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau