Schuyler Pisha v. Office of the District Attorney - Bristol District (SPR 20191721)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. MmTay Supervisor ofR ecords September 6, 2019 SPR19/1721 Mary Lee, Esq. Assistant District Attorney Office of the District Attorney - Bristol District 888 Purchase Street; P.O. Box 973 New Bedford, MA 02 7 40 Dear Attorney Lee: I have received the petition of Schuyler Pisha, Esq., Legal Director of Immigration Law Programs at Catholic Social Services ofF all River, appealing the response of the Office of the District Attorney Bristol District (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May.14, 2019, Attorney Pisha requested any/all records indicating: (a) how many requests for U-Visa certification the Bristol County District Attorney's office received each month from June 2014 through 2019; (b) for each month in this period, how many of the U-Visa certification requests pertaining to each of the qualifying criminal activities listed above; (c) how many U-Visa certifications the Bristol County District Attorney's office signed in each month within this period; ( d) how many of the U-Visa certifications that were signed pertained to each of the qualifying criminal activities listed above; ( e) how many requests for U-Visa certification the Bristol County District Attorney's office denied in each month within this period; (f) how many of these denials pertained to each of the qualifying criminal activities listed above; [ and] (g) any/all policies and procedures pertaining to the consideration ofU-Visa certification requests. In a May 30, 2019 response, the DAO denied the request for the actual U-Visa certification records in its entirety under Exemption (a) of the Public Records Law, as the U-Visa records are confidential and prohibited from disclosure under federal law, 8 U.S.C. § 1367(a)(2); (c); state law under G. L. c 41, § 97D and G. L. c. 265, § 24C, and the privacy clause of Exemption (c) of the Public Records Law. 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

Mary Lee, Esq. SPRI9/1721 Page 2 September 6, 2019 You informed Attorney Pisha, " ... this office does not track U-Visa information in its case-management system and does not track statistics that you have requested. Therefore, the only way to accurately answer your questions is with reference to the individual U-Visa applications that are confidential under federal law ... " As a result of the DAO's May 301 h response, Attorney Pisha petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Attorney Pisha concedes that while the DAO does not collect or maintain the requested data, fulfilling the request would require the DAO to review and redact any highly sensitive information from the U-Visa documents. In addition, the DAO did not provide the requested the policies and procedures pertaining to the consideration ofU-Visa certification requests (Request (g)). No duty to create records Under the Public Records Law, the DAO is not required to create the statistical inf01mation requested in response to a public records request. The duty to comply with requests for inforn1ation extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att'y Gen. 157, 165 (May 18, 1977). 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 fonn 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) The DAO claims the requested U-Visa certification records are exempt under 8 U.S.C. § 1367(a)(2) (c); G. L. c. 41, § 97D; and G. L. c. 265, § 24C, as these statutes operate through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are:

Mary Lee, Esq. SPR19/l 721 Page 3 September 6, 2019 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. 8 U.S.C. § 1367(a)(2)(c) (Penalties for disclosure of infonnation) provides in pertinent part: (a) In General Except as provided in subsection (b), in no case may the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of the Department of Homeland, or Department of State (including any bureau or agency or either of such Departments)- (2) Permit use by or disclosure to anyone ( other than a sworn officer or employee of the Department, employee of the Department, or bureau or agency thereof, for legitimate Department, bureau, or agency purposes) of any information which relates to an alien who is the beneficiary of an application for relief under paragraph (15)(T), (15)(U), or (51) of section lOl(a) of the Immigration and Nationality Act [8 U.S.C. 110l(a)(15)(T), (U), (51)] or section 240A(b)(2) of such Act [8 U.S.C. 1229b(b)(2).]. The limitation under paragraph (2) ends when the application for relief is denied and all opportunities for appeal of the denial have been exhausted. ( c) anyone who willfully uses, publishes, or pern1its information to be disclosed in violation of this section or who knowingly makes a false certification under section 239(e) of the Immigration and Nationality Act [8 U.S.C. 1229(e)] shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more than $5,000 for each such violation.

Mary Lee, Esq. SPR19/1721 Page4 September 6, 2019 It is unclear how the DAO may withhold the records in their entirety under 8 U.S.C. § 1367(a)(2)(c) where this statute refers to federal officials and agencies. I find the DAO has not met its burden of specificity in withholding the records in their entirety under this federal statute as it operates through Exemption (a). The DAO also asserts that G. L. c. 41, § 71D restricts disclosure, in its entirety, of any U Visa certification records pertaining to sexual assault victims. In addition, the DAO asserts that the names of alleged victims of sexual assaults cannot be confirmed or disclosed because they are confidential by statute under G. L. c. 265, § 24C. G. L. c. 41, § 97D states: 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 all such reports shall be accessible at all reasonable times, upon written, 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. That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13Bl/3, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictme1it is or would be prosecuted. Said portion of such court record or police record shall not be detennined to be a public record under the provisions of section seven of chapter four.

Mary Lee, Esq. SPR19/l 721 Page 5 September 6, 2019 G. L. c. 265, § 24C. The DAO's response does not explain how the U-Visa certification records are reports of sexual assault or domestic violence drafted, and why the U-Visa certification records cannot be redacted to protect the identification of the victim and/or subject(s) of the record. I find that the DAO has not met its burden of specificity in withholding the records in their entirety under G. L. c. 41, § 97D and G. L. 265, § 24C as those statutes operate through Exemption (a). Exemption (c) - Second clause The DAO's response also indicates, "[t]he disclosure of such confidential information would likely be deemed to be a violation of the privacy rights of victims under Massachusetts Law." 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). 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. Tones 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, determinati011s 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 inf01mation 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.

Mary Lee, Esq. SPR19/l 721 Page 6 September 6, 2019 Again, it is unclear from the DAO's response why the U-Visa certification records cannot be redacted to protect any identification of victims. I find the DAO has not met its burden of specificity concerning these records and the privacy issues that may be revealed through disclosure, even in a redacted fonnat, under the second clause of Exemption ( c ). 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, § IO(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, § IO(a). In addition, the DAO did not respond whether it is in possession of "any/all policies and procedures pertaining to the consideration ofU-Visa certification requests." See Mr. Pisha's request (g). The DAO must advise Mr. Pisha whether it possesses these records, and whether the records will be provided. Conclusion Accordingly, the DAO is ordered to provide Attorney Pisha 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, ~r~ Supervisor of Records cc: Schuyler Pisha, Esq.