Inga S. Bernstein, Esq. v. Massachusetts Gaming Commission (SPR 20200676)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2020 SPR20/0676 Shara Bedard Records Access Officer Massachusetts Gaming Commission 101 Federal Street, 12th Floor Boston, MA 02110 Dear Ms. Bedard: I have received the petition of Attorney Inga S. Bernstein of Zalkind Duncan & Bernstein LLP appealing the response of the Massachusetts Gaming Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Bernstein requested records related to the Commission’s investigation into an identified individual. The Commission has provided responsive records, leaving four specific documents, labeled Exhibits 51, 68, 83, and 86, subject to this appeal. The Commission provided Attorney Bernstein with a response on March 2, 2020, indicating that it is withholding the responsive exhibits pursuant to Exemptions (a), (c), and (f) of the Public Records Law. Unsatisfied with this response, Attorney Bernstein petitioned this office and this appeal, SPR 20/0676, 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 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(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. 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

Shara Bedard SPR20/0676 Page 2 April 6, 2020 Appeal In its March 2, 2020 response, the Commission indicates that it is withholding responsive communications pursuant to Exemptions (a) and (f), and the privacy clause of Exemption (c). The Commission provided a supplemental response on April 28, 2020 providing further information regarding its exemption claims. 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. G. L. c. 41, § 97D 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; 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…

Shara Bedard SPR20/0676 Page 3 April 6, 2020 G. L. c. 41, § 97D. With respect to Exemption (a), the Commission indicates that one of the exhibits, Exhibit 51, is exempt from disclosure under G. L. c. 41, § 97D. The Commission explains that the exhibit “contains an alleged victim’s statement of rape” and therefore the Commission is required to withhold it. The Commission asserts that its Investigation and Enforcement Bureau is a law enforcement agency, and therefore subject to § 97D. The Commission cites the Supreme Judicial Court’s decision Montefusco v. Commonwealth to support its claim that it may cite § 97D to withhold records. However, the Supreme Judicial Court has asserted that the statute “by its plain terms…is directed to communications received by police officers….” Commonwealth v. George W. Prescott Publ’g Co., 463 Mass. 258, 265 (2012). Accordingly, it is unclear how § 97D, as it operates through Exemption (a), requires withholding of the responsive memorandum by the Commission. 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 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. ---------------------------- App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in

Shara Bedard SPR20/0676 Page 4 April 6, 2020 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. In its April 28th response, the Commission claims that the privacy clause of Exemption (c) permits withholding the four documents in their entirety. To support withholding the documents entirely, the Commission argues that “redacting identifying information from documents containing the actual statements of alleged victims describing their rape, sexual assault or harassment is insufficient to protect the alleged victim’s privacy interest….” and that “[p]roviding statements of alleged victims in redacted form is insufficient to safeguard this privacy interest.” Based on the Commission’s responses, I find it has met its burden to show how the privacy clause of Exemption (c) applies to the redaction of the identity of the victims who are referenced in the records. However, it is unclear how the privacy clause applies to permit the withholding of the responsive documents in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); 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 Commission must clarify this matter. The Commission suggests that disclosure of the statements could permit indirect identification of the subject-victims. The Commission must provide further information on this matter. 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.

Shara Bedard SPR20/0676 Page 5 April 6, 2020 Police Comm’r 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. In support of its Exemption (f) claim, the Commission argues that “the ‘identity of confidential sources,’ including the identity of an alleged victim, is protected under the investigatory exemption.” The Commission also notes the “difficulty” it “faced in obtaining witness statements, due to the highly sensitive nature of the information and witnesses’ fears that they would be identified and subject to retaliation….” The Commission asserts that disclosure of witness statements “would discourage other employees from lodging complaints against their regulated employer and providing statements in connection with investigations like this one…” and would “chill employees’ willingness to make statements in the future against a regulated employer and undermine the IEB’s ability to enforce the Commission’s regulations.” Based on the Commission’s responses, I find it has met its burden to show how Exemption (f) applies to permit the redaction of information that would disclose the identity of voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248. However, it is unclear how Exemption (f) applies to permit the withholding of the responsive documents in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); 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 Commission must clarify this matter. Conclusion Accordingly, the Commission is ordered to provide a response to Attorney Bernstein, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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, Rebecca S. Murray Supervisor of Records cc: Inga S. Bernstein, Esq.