Chrissy Ryan v. Office of the District Attorney - Northwestern District (SPR 20192291)

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

Rebecca S. Murray Supervisor of Records

November 25, 2019 SPR19/2291 Cynthia M. Von Flatern, Esq. Assistant District Attorney Office of the District Attorney Northwestern District One Gleason Plaza _ Northampton, MA 01060

Dear Attorney Von Flatern:

I have received the petition of Christine Ryan appealing the response of Northwestern District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically on November 12, 2019, Ms. Ryan requested information about an investigation of a spring 2019 incident involving Amherst High School students.

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(d)(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).

DAO’s November 12" response

In its November 12" response the DAO advised “that there are no public records responsive to [the] request.” The DAO denied access to responsive records under G. L. c. 41, § 97D and 603 C.M.R. 23.05, as it operates through Exemption (a) of the Public Records ‘Law. The

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

Cynthia M. Von Flatern, Esq. SPR19/2291 Page 2 November 25, 2019

DAO further claimed that “investigative reports about an incident that did not result in criminal

charges are not public as ‘release may constitute an unwarranted invasion of personal privacy’ [under] G.L. c. 4 §7 (26)(c).”

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.

In its November 12" response, the DAO stated that the responsive records are exempt pursuant to G. L. c. 41, §97D, which provides in pertinent part:

“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...”

In its November 12" response, the DAO asserted that the requested records are also exempt pursuant to 603 C.M.R. 23.05: Privacy and Security of Student Records, which provides in relevant part:

“(1) The school principal or his/her designee shall be responsible for the privacy and security of all student records maintained in the school.”

Cynthia M. Von Flatern, Esq. SPR19/2291 Page 3 November 25, 2019

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).

Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-434 (1983). The first clause, creates a categorical exemption for personnel information that relates to an identifiable — individual and is of a "personal nature." Id. at 434.

Second clause of Exemption (c) - privacy

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. Inc. (PETA) v. Department of Agricultural Resources, 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. App. Ct. 415, 428 (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.

Under the second clause of Exemption (c), the DAO explains that “release may and would... constitute an unwarranted invasion of personal privacy.”

Cynthia M. Von Flatern, Esq. SPR19/2291 Page 4 _ November 25, 2019

Based on the DAO’s response, I find the DAO must identify any records the agency intends to. withhold and provide the specific reasons for such withholding. To deny access to a record under the Public Records Law, a records access officer (RAO) must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). As a result, I find that the DAO did not satisfy its burden in responding to this records request.

Conclusion

Accordingly, the DAO is ordered provide Ms. Ryan with a response to the request in a manner consistent with this order, the Public Records Law, 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,

Llecea

Rebecca S, Murray Supervisor of Records ce: Christine Ryan