Jordan M. Rice v. Office of the District Attorney - Plymouth District (SPR 20191893)

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

Rebecca S, Murray Supervisor of Records

October 1, 2019 SPR19/1893

Jessica Kenny

Records Access Officer

Office of the District Attorney — Plymouth District 166 Main Street

Brockton, MA 02301

Dear Ms. Kenny:

I have received the petition of Jordan M. Rice appealing the response of the Plymouth District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Rice requested 17 categories of records regarding an identified criminal case.

Previous appeals

The requested records were the subject of previous appeals. See SPR19/1091 Determination of the Supervisor of Records (June 13, 2019) and SPR19/1454 Determination of the Supervisor of Records (August 5, 2019). In my August 5" determination, I found that the Office had not met its burden to withhold records under Exemption (a) of the Public Records Law. I also found that the Office had not established how Mr. Rice had a unique right of access to the requested information. Accordingly, I ordered the Office to provide Mr. Rice with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Following the August 5" determination, the Office responded on August 13, 2019, providing additional information regarding its exemption claim. Unsatisfied with the - Office’s response, Mr. Rice petitioned this office and this appeal, SPR19/1893, was opened as a result.

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 ofthe Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26).

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

Jessica Kenny SPR19/1893 Page 2 , October 1, 2019

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.MLR. 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.

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 August 13 response

In its August 13, 2019 response, the Office, citing Motefusco, asserts that “. .. as the investigation and these materials all relate to a sexual assault, they are all exempt from production under the public records law.” The Office also cites G. L. c. 66, § 10; G. L. c. 41, § 97D and G. L. c. 265, § 24C to support its position to withhold records from disclosure.

The Office also asserts that “. . . with respect to any and all fingerprints: the fingerprints, identity of those fingerprinted, and related materials are exempt from production under the public records law.” The Office explains that “[t]hese materials are exempt as investigatory materials and as production would improperly invade the privacy of the other persons who were fingerprinted... .”

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Further, the Office states that“. . . in so far as these materials were sought and used in the investigation and prosecution of the murder, they are exempt as Criminal Offender Record Information. These materials are CORI as they relate to a matter that was not dismissed prior to arraignment, and at a minimum they all ‘relate to the nature and disposition of a criminal charge,’ or ‘other judicial proceedings.’”

With respect to “bloody palm print materials[,]” the Office also asserts the above stated grounds to withhold these records from disclosure.

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. ¢. 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 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

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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.

G. L. c. 6, § 167 (emphasis added). Exemption (c) Exemption (c) permits the withholding of:

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). Second clause of Exemption (c) — privacy

- Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. y. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. 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 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 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.

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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, 477 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.

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’ 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.

Burden of specificity

In the August 5" determination, I indicated that it was unclear from the Office’s response if it possessed responsive records and directed the Office to identify the records in its possession that are responsive to Mr. Rice’s request. See SPR19/1454, Based on the Department’s recent response, it remains unclear the records it possesses that are responsive to Mr. Rice’s request. As — such, the Office is ordered to identify the records in its possession in compliance with the Public Records Law and the August 5" determination.

Also, in the August 5" determination, I indicated that the Office had not met its burden to withhold records under the CORI Act because “. . . it is unclear how the records constitute _ “{nformation recorded in criminal proceedings that are not dismissed before arraignment,” as

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contemplated in the updated definition of the CORI Act. See SPR19/1454. In its response, although the Office states that “[t]hese materials are CORI as they relate to a matter that was not dismissed prior to arraignment, and at a minimum they all ‘relate to the nature and disposition of a criminal charge,’ or ‘other judicial proceedings[,]’” it remains unclear how the records constitute “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above. (emphasis added).

In addition, the Office indicated that “. . . as the investigation and these materials all relate to a sexual assault, they are all exempt from production under the public records law” pursuant to G. L. c. 66, § 10; G. L. c. 41, § 97D and G. L. c. 265, § 24C, In his appeal petition, Mr. Rice states that the SJC decision, Commonwealth v. Rice, 441 Mass. 291, 292 (2002), cites that“... Mr. Rice ‘was convicted of murder in the first degree on a theory of extreme atrocity or cruelty... [and] arson’ .. .” Consequently, it is unclear how the cited statutes apply to withhold the records from disclosure. :

Further, with respect to Exemption (c), the Office explains that “. . . production [of the records] would improperly invade the privacy of the other persons who were fingerprinted... .” Although portions of the records may be withheld under Exemption (c), it is unclear how the records can be withheld in their entirety. 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. G. L. c. 66, § 10(a).

With respect to Exemption (f), where the Office claims that the records are investigatory materials, please note, to the extent that disclosure would result in the risk of directly or indirectly identifying voluntary witnesses, the Office may permissibly withhold such portions from disclosure.

Unique right of access

In its response, the Office also contends that Mr. Rice has “a unique right of access (without regard to whether his attempt to exercise such rights succeeds or fails) under Mass. Gen. L. c. 258D as well as Mass. R. Crim. P. 30.” The Office cites previous determinations, SPR17/786 and SPR17/1340, to support its position. —

In the August 5'" determination, I indicated that where Mr. Rice claimed that“... a Rule 30 Motion for A New Trial was filed on November 4, 2002, in Brockton Superior Court and denied without either a hearing or post-trial discovery on February 3, 2013... 1 find that his ability to obtain responsive records througha discovery motion is unlike statutory provisions that grant requestors a unique right to access records, such as the Criminal Offender Record Information (CORI) Act, or student record statutes.” See SPR19/1454. Based on the Office’s response, it remains unclear how Mr. Rice has a unique right of access to the responsive records.

~ Jessica Kenny SPR19/1893 Page 7 October 1, 2019

Conclusion

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.

Allerco

Holteca S. Murray Supervisor of Records

cc: Jordan Rice