Jordan M. Rice v. Office of the District Attorney - Plymouth District (SPR 20191091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

June 13, 2019 SPR19/1091

Keith A. Garland, Esq.

Assistant District Attorney

Office of the District Attorney — Plymouth District 32 Belmont Street

Brockton, MA 02303-1665

Dear Attorney Garland:

[have received the petition of Jordan M. Rice appealing the response of the Office of the District Attorney — Plymouth District (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rice requested records related to an identified criminal case. The Office denied his request claiming the responsive records are exempt from disclosure pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law and Exemption (f), and asserts that Mr. Rice has a unique right of access to the requested information. G. L. c. 4, § 7(26)(a), (f).

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, § 10A(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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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 A. Garland, Esq. SPR19/1091 Page 2 June 13, 2019

Purpose of request

Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. 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 any existing responsive records.

It should be noted that 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); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means’). As

such, Mr. Rice may wish to consider another means of seeking to obtain any existing responsive records.

The Office’s response

In a response dated May 13, 2019, the Office indicates that Mr. Rice has “... a judicial right of access under the Massachusetts Rules of Criminal Procedure” to the requested records. The Office asserts that because of his unique right of access, his records “request is not cognizable under the public records law,” citing to 950 C.M.R. 32.08. The Office indicates Mr.

Rice “must follow the appropriate post-conviction discovery procedures under the Rules of Criminal Procedure.”

The Office additionally indicates that Mr. Rice’s “... case file is replete with non- severable CORI, matter correlated with defendant specific information, and cannot be disclosed,” citing to Exemption (a) of the Public Records Law. The Office asserts that “[t]he entire file is ‘records and data in any communicable form complied by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge,” citing to the CORI Act.

The Office cites to Exemption (f), stating that “witness statements are exempt from disclosure under the public records law” and asserts “...the case file contains reports from interviews with witnesses.”

Exemption (a)

Exemption (a), known as the statutory exemption, permits the withholding of records that are:

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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.

It should be noted that there has been an update to the definition of CORI. The current definition of CORI is as follows:

“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.

Keith A. Garland, Esq. SPR19/1091 Page 4 June 13, 2019

G. L. c. 6, § 167 (emphasis added). Exemption (f) 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). 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.

Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438.

Burden of specificity in responding and claiming exemptions

Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(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

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Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Despite the Office’s response, it remains unclear whether it possesses responsive records. In response to a request for public records, a custodian is required to identify the records in its possession. See id. The Office must clarify this matter.

Further, the Office’s response did not contain the specificity required in a denial of access to public records. Instead, the Office’s response merely cites the CORI Act and Exemptions (a) and (f) without any further explanation as to the claimed statute or the exemptions’ applicability to the requested records. Additionally, the Office has not established how Mr. Rice has a unique right of access to the requested information. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, find that Office has not satisfied its burden in responding to this records request. The Office is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations.

Order

Accordingly, the Office is ordered to provide Mr. Rice 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.

Qlpnee

Aleve S. Murray Supervisor of Records

cc: Jordan M. Rice