Nicole M. Avitabile, Esq. v. Office of the District Attorney - Norfolk District (SPR 20190590)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 3, 2019 SPR19/590 Laura A. McLaughlin, Esq. Assistant District Attorney Office of the District Attorney for the Norfolk District 45 Shawmut Road Canton, MA 02110 Dear Attorney McLaughlin: I have received the petition of Nicole M. Avitabile, Esq., of Rawson Merrigan & Litner, LLP, appealing the response of the Office of the District Attorney for the Norfolk District (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile requested: "Any and all public records in the possession, custody and/or control of the [DAO] related to [a n identified person], including but not limited to reports, police reports, ------ ------ ------¥idws,-9-1-1-calls,plrntGgi-aphs,etc.- -------------------------------------- ! also ask that, when possible, you provide me with the un-redacted records as a courtesy, in lieu of subpoena, for the sole purpose of imminent civil litigation (this office represents [an identified person], see [D]ocket [N]o. 1982CV00280." On March 19, 2019, the DAO denied Attorney Avitabile's request in its entirety pursuant to Exemptions (a), (c) and (f) of the Public Records Law; G. L. c. 41, § 97D and G. L. c. 6, § 167. As a result of the DAO's denial, Attorney Avitabile petitioned the Supervisor of Records (Supervisor) and this appeal was opened. Reason for the request; unique right of access Please note that the reason for which a requester seeks access to or a copy of a record under the Public Records Law does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Avitabile's purpose in making the request has no bearing on the public status of a particular 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

Laura A. McLaughlin, Esq. SPR19/590 Page 2 April 3, 2019 The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). In addition, the Public Records Law shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). Whereas Attorney Avitabile may have a unique right of access, she may wish to avail herself to the judicial process to obtain the requested records, whether redacted or un-redacted. 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) (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 ... "); 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). The DAO's March 19, 2019 and March 20, 2019 responses In its March 19th response, the DAO informed Attorney Avitabile that it withheld the records in their entirety under Exemptions (a); the second clause of ( c); (f); G. L. c. 41, § 97D and G. L. c. 6, § 167. In its March 20th email, the DAO asserts, "[a]ll reports of rape/sexual abuse are confidential and not subject to the [P]ublic [R]ecords [L]aw. Further, as the investigation remains active and the prosecution ongoing the [DAO] will not release any records." Exemption (a) In its March 19th response, the DAO claims that the records are restricted under the Criminal Offender Record Information (CORI) Act and under the Rape/Sexual Assault statute as these laws operate through 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

Laura A. McLaughlin, Esq. SPR19/590 Page 3 April 3, 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. 1, 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. CORI Act The DAO has cited the CORI Act to withhold responsive records. See G. L. c. 6, § 167. CORI is defined as: ----------------'----------'-'GF-i-mi-nal-0-:IIenoor-Fe-GeFa--i-n-fer-mat-i-e-n,''Fe-GeFa-s-ana-data-i-n-any-GemRH1n-iGal31e 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 .... " G. L. c. 6, § 167 (emphasis added). The DAO's March responses did not provide any specificity as to how any of the requested records may be withheld under CORI as it operates through Exemption (a) of the Public Records Law. Your responses merely cite the General Law Chapter and Section, asserting, "[CORI] ... shall only be disseminated to criminal justice agencies." The DAO did not

Laura A. McLaughlin, Esq. SPR19/590 Page 4 April 3, 2019 provide any specificity on what responsive records it possesses that it withheld in their entirety under the CORI Act and Exemption (a). In light of the updated definition of the CORI Act, it is unclear how the requested records are "records or information recorded in a criminal proceeding that was not dismissed before arraignment." The DAO has not demonstrated that the records were created in a criminal proceeding; therefore, it has not met its burden to withhold the records under the CORI Act. G. L. C. 41, § 97D The DAO has also asserted that all reports of rape/sexual abuse are confidential and not subject to the Public Records Law. 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim's attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims' counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that -----------aU~s-ue-1He-perts--sh-a-l-H3e--aeees-s+h-le~at--al-l--reas-en-ah-le--t-i-mes,1±p0fl~wr-it-ten>-,- ----------- telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 .... G. L. c. 41, § 97D. I find that the DAO has not met its burden to establish what records it possesses that fall within the category of reports as contemplated in the statute. As such, the DAO must clarify this matter pertaining to records or information it is withholding under G. L. c. 41, § 97D as it operates through Exemption (a). Exemption (c) Exemption (c) applies to:

Laura A. McLaughlin, Esq. SPR19/590 Page 5 April 3, 2019 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). Second clause of (c) -privacy The DAO indicated that personally identifiable information may constitute an unwarranted invasion of personal privacy. Therefore, the second clause of (c ) may apply to records or information contained in records. 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 ---------------------p-€1"00-na1-natYI"~-and---(-J-)-wh©-th©-f-too-s-am@----infef-ma-t-ien-i-s----av-ai-lab-le-fr-em-e-t-heF-Settrees-c---Se-e- 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, 4 77 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. The DAO has not met its burden in claiming the second clause of ( c) where it has not identified the particular information it considers personally identifiable information that may be

Laura A. McLaughlin, Esq. SPR19/590 Page 6 April 3, 2019 withheld as an unwarranted invasion of personal privacy. I find that the DAO must clarify how the second clause of ( c) applies to withhold records or portion of records or information. 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 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 id. at 289-290. ________ ___,_he!)AO~£elis,''~ffrthe~recm~~i~v:estigationis~~ing.J)isclosure~---- of any records would gravely impede the investigation and integrity of the prosecution." Based on the DAO's March 19th and March 20th responses, the DAO did not meet its burden to withhold the documents at issue pursuant to Exemption (f). In particular, the DAO has not established how this investigation remains ongoing and how disclosure would prejudice effective law enforcement. Exemption (f) may not be used as a blanket exemption for the withholding of all records pertaining to an investigation. Consequently, the DAO must provide a valid explanation for the use of such an exemption as mentioned above. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The DAO did not meet its burden of demonstrating how the responsive 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). The DAO must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a ).

Laura A. McLaughlin, Esq. SPR19/590 Page 7 April 3, 2019 Furthermore, in its March 20th email the DAO asserts, "the [DAO] is not required to create records by identifying what it possesses especially when at this time all records are exempt from disclosure." 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); see also 950 CMR 32.06(3)(c)(4). Here, the DAO withheld records without identifying the records it possesses that are responsive to Attorney Avitabile's request. Therefore, I find that the DAO must identify the record(s) it has in its possession that it is withholding. It is my understanding that a Public Records Division staff attorney contacted you regarding this appeal. Conclusion Accordingly, the DAO is ordered to provide Attorney Avitabile with a response to the request, 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: Nicole M. Avitabile, Esq.