Laura Bottaro v. Bristol County District Attorney's Office (SPR 20200044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 23, 2020 SPR20/0044 Erica G. Sylvia, Esq. Assistant District Attorney Bristol County District Attorney's Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Sylvia: I have received the petition of Laura Bottaro, Esq. of The Botarro Law Firm, LLC appealing the response of the Bristol County District Attorney's Office (Office) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on November 15, 2019, Attorney Botarro requested a copy of"[t]he supplemental report to the police report for [an identified motor vehicle crash]" and "[a]ll witness statements concerning the crash, including those given by our clients." The Office provided a response denying access to responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Office's response, Attorney Botarro petitioned this office and this appeal, SPR20/0044, was opened as a result. Purpose of request; identity of requestor 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, Attorney Botarro'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 patiy'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(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Erica G. Sylvia, Esq. SPR20/0044 Page 2 January 23, 2020 of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Botarro may wish to consider another means of seeking to obtain 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, § lO(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. Tlte Office's November 201 response " In its November 20, 2019 response, the Office asse1is that "[t]o the extent that [Attorney Botafro's] client(s) received [certain] documents at the discretion of this Office as permitted under the criminal offender record information statute, G.L. c. 6, § 178A (CORI), these documents are not public records and were not provided pursuant to Public Records Law. Therefore, automatic dissemination of other materials in this Office's possession is neither permitted nor required." The Office advises Attorney Botarro to request redacted records after the criminal case is complete and directs her to the Taunton District Comi Criminal Clerk's Office for documents filed in the criminal matter. Fmiher, the Office asserts that the records are exempt from disclosure under the following exemptions. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Erica G. Sylvia, Esq. SPR20/0044 Page 3 January 23, 2020 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. Under Exemption (a), the Office states that "[t]he requested documents involve criminal charges. Such records would be subject to the criminal offender record information act (CORI) and are not public records under [this exemption] .... " The Office explains that "[t]he CORI statute prohibits the disclosure about identifiable individuals and their criminal proceedings. G.L. c. 6, §§ 167, 172, 178. The CORI statute only permits disclosure of CORI in particular situations, in most instances through the department of criminal justice information services (CJIS) for the specific purpose of protecting individuai privacy rights. G.L. c. 6, § § 167 A, 1 72(a ), ([). Hamani v. Commonwealth Exec. Office ofP ub. Safety & Sec., 2014 Mass. Super. LEXIS 193, *8-9 (Suffolk County, 2014) ...." Citing other case law, the Office further states that'"[u]nlawful dissemination of CORI is an actionable violation" and disclosure " ... would be inconsistent with the statutory protections provided to criminal offenders ... " 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 ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Analysis under the second clause of Exemption ( c) is subjective in nature and requires a

Erica G. Sylvia, Esq. SPR20/0044 Page4 January 23, 2020 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. 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. Under Exemption (c), the Office states that disclosure of these records and other materials containing private information about identifiable individuals "could result in a violation of individual privacy rights. G.L. c. 214, § lB; G.L. c. 4, § 7, cl. 26(c) (materials related to a specifically named individual, that if disclosed would constitute an unwarranted invasion of privacy)." · Exemption (I) 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

Erica G. Sylvia, Esq. SPR20/0044 Page 5 January 23, 2020 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, 3 71 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, 3 78 Mass. at 290 n. 18. 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. Under Exemption (f), citing the language of the statute, the Office asserts that "[a]ny records associated with criminal investigations and prosecutions are exempt from the definition of public records, as investigatory materials ...." The Office also states that "[s ] tatements of identifiable individuals who served as witnesses or who reported information to the police are exempt from disclosure under the investigatory exception to the Public Records Law," and cites the Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983) decision to explain the policy considerations behind the exemption. The Office further explains that it" ... is subject to ethical restrictions on extrajudicial statements prior to the completion of a criminal case. Under the ethical rules, parties to criminal proceedings must refrain from making extrajudicial statements that may prejudice an adjudicative proceeding. Mass. R. Prof. Cond. 3.6(a). Prosecutors are forbidden from making extrajudicial statements that may heighten public condemnation of an accused person. Mass. R. Prof. Cond. 3.8(f)(l)-(2). See Commonwealth v. Wood, 469 Mass. 266, 291-292 (2014)." As such the Office contends that it" ... cannot release, as a public record documents, photographs, or other physical evidence that have been compiled, while the criminal proceedings are pending." Pending litigation In her appeal petition, Attorney.Botarro states that there is a pending criminal case, 1831 CR003239, as well as her clients' pending civil lawsuit regarding this matter. 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Whereas the public records in question are the subjects of disputes in active litigation, I decline to opine on this matter. It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b ). Conclusion Accordingly, I will consider this administrative appeal closed.

Erica G. Sylvia, Esq. SPR20/0044 Page 6 January 23, 2020 Sincerely, ~ r r ~ Supervisor of Records cc: Laura Botarro, Esq.