Al-Amyn Sumar v. Office of the District Attorney - Worcester District (SPR 20190728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 22, 2019 SPR19/728 Lindsay Corcoran Records Access Officer Office of the Worcester County District Attorney 225 Main Street, G301 Worcester, MA O1 608 Dear Ms. Corcoran: I have received the petition of Al-Amyn Sumar, Esq. of The New York Times appealing the response of the Office of the Worcester County District Attorney (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Frances Robles of The New York Times requested "all closed case files, close-out memos, investigative reports, evidence and memos and all discovery in the criminal investigation of Lan Yun Ma and Wei Ma." The DAO responded on March 29, 2019 by producing records redacted under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The DAO withheld other records under Exemptions (a), (d), and (f) of the Public Records Law. 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, § 1O (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

Lindsay Corcoran SPR18/728 Page 2 April 22, 2019 Appeal In its March 29th response the DAO provided investigative reports with portions redacted under Exemption (c). Attorney Sumar objects to the DAO's withholding of other responsive records under Exemptions (a), (d), and (f). 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 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 DAO asserts "[t]he discovery records that you are requesting are not available unless ordered by the Superior Court under Mass. R. Crim. P. 14" and cites Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) as well as G. L. c. 213, § 3 in support of its position. You note that "[e ]ven providing redacted documents would improperly circumvent the rules of discovery." I find the DAO has not met its burden to show how G. L. c. 213, § 3, which pertains to the courts' ability to promulgate rules, restricts access to records at issue in this appeal under Exemption (a). Further, it is unclear which specific records the DAO possesses that are responsive to this portion of the request. See G. L. c. 66, § lO(b)(iv) (a written response shall "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 .... ").

Lindsay Corcoran SPR18/728 Page 3 April 22, 2019 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 DAO asserts that "[c]lose-out memos and any other memos related to this case constitute attorney work product that 'falls within the scope of exemption (d)' under G.L. c. 4, sec. 7(26). DaRosa v. City of New Bedford, 471 Mass. 446,448 (2015)." In DaRosa, the Supreme Judicial Court concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation oflitigation or trial falls within the scope of Exemption (d ) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. I find that the DAO has not established how the withheld memos constitute work product that may be withheld as contemplated in DaRosa. In particular, the DAO has not established how the responsive memos were prepared in anticipation of litigation or for trial. Further, the DAO has not identified which specific memos it is withholding. See G. L. c. 66, § lO(b)(iv); G. L. c. 66, § lO(a) (any non-exempt, segregable portion of a public record is subject to mandatory disclosure). Exemption (f) Exemption (f) permits the withholding of:

Lindsay Corcoran SPR18/728 Page4 April 22, 2019 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)(±} 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, 3 71 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. With respect to its Exemption (f) claim, the DAO indicates that "[o ]ther evidence, including photos, videos, and direct witness statements, are not part of the public file and constitute 'investigatory materials' that are exempt from disclosure under the public record law." I find the DAO has not demonstrated how disclosure of these records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). It is unclear which specific records the DAO is withholding and why segregable portions of such records cannot be produced. See id. (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, § 10(a ) Conclusion Given that the DAO did not meet its burden to explain how exemptions apply to allow it to withhold the responsive records at issue in their entirety, the DAO is ordered to review the records, redact where necessary and provide Attorney Sumar responsive records, 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.

Lindsay Corcoran SPRlS/728 Page 5 April 22, 2019 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Al-Amyn Sumar, Esq.