Jordan M. Rice v. Plymouth County District Attorney's Office (SPR 20192207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 15, 2019 SPR19/2207 Keith Garland, Esq. Assistant District Attorney Office of the District Attorney - Plymouth District 166 Main Street Brockton, MA 02301 Dear Attorney Garland: 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rice requested 17 categories ofrecords regarding an identified criminal case. Previous appeals The requested records were the subject of previous appeals. See SPRl 9/1091 Determination of the Supervisor of Records (June 13, 2019); SPR19/1454 Determination of the Supervisor of Records (August 5, 2019) and SPR19/1893 Determination of the Supervisor of Records (October 1, 2019). In my October 1st determination, I directed the Office to identify the records in its possession. I also found that the Office had not met its burden to withhold records under Exemptions (a), (c), and (f) of the Public Records Law, nor 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. Subsequently, the Office responded on October 9, 2019. Unsatisfied with the Office's response, Mr. Rice petitioned this office and this appeal, SPRl 9/2207, was opened as a result. 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 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. SPR19/2207 Page 2 November 15, 2019 (1976). Accordingly, Mr. Rice's purpose in making the request has no bearing on the public status of any existing responsive 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office's October 91 response " In its October 9, 2019 response, the Office asserted that it" ... pointed out that 'evidence of sexual assault' was addressed in the opinion of the Supreme Judicial Court." The Office attached a copy of the decision, Commonwealth v. Rice, 441 Mass. 291 (2002), and referenced a portion in an attempt to establish that the responsive records fall within a sexual assault exemption. Consequently, the Office contended that "[s]ince this investigation and these materials all clearly relate to a sexual assault, they are all exempt from production under the public records law. See Montefusco v. Commonwealth, 452 Mass. 1015, 1017 (2008); G.L. c. 66, § 10; G.L. c. 41, § 97D; G.L. c. 265, § 24C." 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

Keith Garland, Esq. SPR19/2207 Page 3 November 15, 2019 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. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Office to withhold responsive records, the Office must provide this office with un redacted copies of a representative sample of the responsive records for in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates . from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Keith Garland, Esq. SPR19/2207 Page 4. November 15, 2019 Order Accordingly, the Office is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jordan Rice