Melissa Hanson v. Bristol County District Attorney's Office (SPR 20190228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 19, 2019 SPR19/0228 Erica Sylvia Assistant District Attorney Bristol County District Attorney's Office 888 Purchase Street New Bedford, MA 02740 Dear Ms. Sylvia: I have received the petition of Melissa Hanson of Mass Live appealing the response of the Bristol County District Attorney's Office (Office) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on December 27, 2018, Ms. Hanson requested a copy of the "[p]rosecutorial files involving John Loflin, specifically the 2002 murder of Marlene Rose and an aggravated rape and assault and battery with a dangerous weapon case from Aug. 11, 1997." The Office responded on January 8, 2019, denying access to responsive records pursuant to Exemptions (a), (c), and (d) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (d). Unsatisfied with the Office's response, Ms. Hanson petitioned this office and this appeal, SPRl 9/0228, was opened as a result. 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, § IO(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. 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

Erica Sylvia SPR19/0228 Page2 February 19, 2019 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. The Office's January 8th response In its January 8, 2019 response, the Office asserts that Ms. Hanson's request is denied " ... because the records are exempt from the statutory definition of public records and are protected from disclosure by other statutes, rules, case law, or court orders. G.L. c. 4, § 7, cl. 26; c. 66, § 1O ." The Office informed Ms. Hanson that she may be able to obtain some of the designated materials through the court. The Office cites the following exemptions as applicable to withhold responsive records from disclosure. Exemption (a) The Office cites the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, the sexual assault statute, G. L. c. 41, § 97D, and G. L. c. 268, § 13B, as applicable to withhold responsive records. 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 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.

Erica Sylvia SPR19/0228 Page 3 February 19, 2019 The statutes provide in relevant part: "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, § 167. 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. Under Exemption (a), the Office states that "[i]nformation about identifiable individuals related to the nature and disposition of a criminal charge is generally exempted from disclosure under ... [CORI] ... G.L. c. 6, §§ 167, 172, 178." Citing the language of the CORI Act, the Office states that "[t]he disclosure of criminal record information outside of the statutory procedures set forth in chapter 6, sections 167 through 175 is illegal. G.L. c. 6, § 178 .... " Citing case law, the Office asserts that "[d ]isclosure of CORI that could identify a person who was charged with and/or convicted of a crime, ... under the Public Records Law is contrary to both the language of the CORI statutes and their legislative intent. Under the Public Records Law, a requestor cannot be prohibited from publicly disclosing a document that was obtained through a public records request. '[O]nce a record is deemed public it may be obtained by

Erica Sylvia SPR19/0228 Page4 February 19, 2019 anyone upon request.' A Guide to the Massachusetts Public Records Law, Secretary of State's Office, p.6 (2017)." As a result, the Office contends that" ... the records in these trial files are not subject to disclosure under the Public Records Law. They are subject to the criminal offender record information act and are not public records under G.L. c. 4, § 7, cl. 26 (a) ...." In addition, the Office, citing the language of G. L. c. 41, § 97D, asserts that "[a] violation of this section shall be punished by imprisonment for not more than 1 year or by a fine of not more than $1,000, or both such fine arid imprisonment. ... Further, names of sexual assault victims are confidential by statute. G.L. c. 265, § 24C. It would be inappropriate to release sexual assault records pursuant to the Public Records Law. G.L. c. 4, § 7, cl. 26 (a)." Further, the Office states that "[r]ule 5 (d) of the Massachusetts Rules of Criminal Procedure prohibits the dissemination of grand jury transcripts without a court order. 'A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by the court.' Mass. R. Crim. P. 5 (d). Also G.L. c. 268, § 13B (unlawful to disseminate grand jury transcripts with intent to interfere with criminal proceedings). Grand Jury materials are therefore exempt from the definition of public records [under Exemption (a)]." 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). First clause ofE xemption (c) - medical 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). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Under the first clause of Exemption (c), the Office states that "[a]ny materials within the files that contain medical records of any defendant, victim, or witness, including but not limited

Erica Sylvia SPR19/0228 Page 5 February 19, 2019 to competency reports, physical examinations, or psychological reports are exempt from disclosure under the Public Records Law. ... Autopsy records are likewise exempt from the Public Records Law under this same provision. G.L. c. 4, § 7, cl. 26 (c). Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 133 (1989)." Second clause ofE xemption (c) -privacy 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. Under the second clause of Exemption ( c) , the Office states that the "[d ]issemination of CORI pursuant to the Public Records Law would be inconsistent with the statutory protections provided to criminal offenders and could result in a violation of individual privacy rights. G.L. c. 214, § lB; G.L. c. 4, § 7, cl. 26 (c) ...." The Office asserts that "[t]he disclosure of photographs of the scene is an unwarranted invasion of privacy for the family members of the victims. The recordings of witness interviews do not constitute public records because the public dissemination of the individual's own voices constitutes an invasion of privacy to defendants, witnesses, and/or families of the victims. Commonwealth v. Winfield, 464 Mass. 672, 683 (2013) (recording of witness testimony by court reporter was not part of the court records and its dissemination would invade privacy rights)."

Erica Sylvia SPR19/0228 Page 6 February 19, 2019 The Office also states that "any copies of summonses or subpoenas contain[] identifiable information about witnesses, thereby unnecessarily invading their privacy. Where the dissemination of these records would constitute an unwarranted invasion of privacy under chapter 214, section lB, the records are exempt from the Public Records Law. G.L. c. 4, § 7, cl. 26 (a) (protected from disclosure by another statute),§ 26 (c) (unwarranted invasion of privacy to a specifically named individual)." The Office asserts that "[w]itnesses' names and the content of their statements are also exempted from disclosure .... 'Any details in witness statements, which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness are indefinitely exempt.' Id. citing Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). This exemption is essential to the continued functioning of law enforcement because the release of information that directly or indirectly identifies a witness not only creates the potential for putting individuals in harm's way through potential retribution and retaliation but also discourages future witnesses from cooperating with the police in future investigations." Exemption (d ) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Office states that the records are withheld under the work-product doctrine through Exemption (d) because, "[a]ll prosecutorial notes, case law, and research contained in the trial file constitute work product prepared and compiled in anticipation of litigation, demonstrating the prosecutor's thought processes ...." The Office cites DaRosa v. New Bedford, 471 Mass. 446, 461-62 (2015) to support its position. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to

Erica Sylvia SPR19/0228 Page 7 February 19, 2019 establish the applicability of an exemption. G. L. c. 66, § 1 O(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 the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemptions (a), (c), and (d). 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 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 what records it has in its possession, custody and control that are responsive to Ms. Hanson's public records request. G. L. c. 66, § lO(ii). Therefore, the Office must identify what type of record(s) it has in its possession that it withheld. Further, although portions of the responsive records may potentially be withheld from disclosure, for example, witness identities, medical information, sexual assault reports, and grand jury transcripts, it remains unclear how the records can be withheld in their entirety. 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. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Office did not meet its burden to explain how an exemption applies to withhold the records in their entirety, the requested records may not be withheld. Accordingly, the Office is ordered to review the records, redact where necessary, and provide Ms. Hanson 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. 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: Melissa Hanson