Jordan M. Rice v. Plymouth County District Attorney's Office (SPR 20191051)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 10, 2019 SPR19/1051 Keith Garland, Esq. Office of the District Attorney - Plymouth District 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of Jordan Martell Rice appealing the response of the Office of the District Attorney - Plymouth District (District Attorney) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rice requested seventeen (17) enumerated requests for records pertaining to a conviction. In a May 13, 2019 response, the District Attorney denied the request under G. L. c. 6, § 167 as it operates through Exemption (a), as well as Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). The District Attorney's May 13th response also indicates that Mr. Rice's trial attorney would have all the documents from the case, and that Mr. Rice has a unique right of access to the responsive records through the judicial process for post-conviction discovery under the Rules of Criminal Procedure. As a result of the District Attorney's response, Mr. Rice petitioned the Supervisor of Records 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, Mr. Rice's purpose in making the request has no bearing on the public status of a particular record. 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 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

Keith Garland, Esq. SPR19/1051 Page2 June 10, 2019 (1998). Whereas Mr. Rice may have a unique right of access, he may wish to avail himself to the judicial process to obtain the requested 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). 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). 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.

Keith Garland, Esq. SPR19/1051 Page 3 June 10, 2019 It should be noted that there has been an update to the definition of Criminal Offender Record Information (CORI). See Section 3 of Chapter 69 of the Acts of 2018. The current definition of CORI is as follows: "Criminal offender record infonnation", 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 off ender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 ( emphasis added). It is unclear how all the withheld records falls under the CORI Act; specifically, it is unclear how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. In addition, the Supreme Judicial Court has held "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). The District Attorney has not explained whether it possesses responsive records that are considered public in light of the new CORI definition and/or the Globe decision. In addition, it is unclear why Mr. Rice cannot have access to his own CORI records or information. See G. L. c. 6, § 172(5); see also G. L. c. 6, § 167A. 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

Keith Garland, Esq. SPR19/1051 Page 4 June 10, 2019 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, 371 Mass at 62. 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. The District Attorney claims that the case file contains reports from interviews with witnesses, including witness statements that are exempt from disclosure under Exemption (f) of the Public Records Law. However, witness statements are not automatically exempt in their entirety; for example, it is unclear why the District Attorney cannot redact where necessary to preserve witness anonymity and provide the remaining portions of the record. See Antell, 52 Mass. App. Ct. at 248. Burden of specificity; segregable portions In light of the above, I find the District Attorney did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemptions (a) and (f). See Reinstein, 378 Mass. at 289-90 (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. See G. L. c. 66, § lO(a). In addition, the District Attorney did not meet its burden to identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. See G. L. c. 66, § lO(b)(iv). Conclusion Accordingly, the District Attorney is ordered to provide 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. s ~ Rebecca S. Murray Supervisor of Records cc: Jordan Martell Rice