Jeffrey J. Pyle, Esq. v. Suffolk County District Attorney's Office (SPR 20200972)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2020 SPR20/0972 Claudia Buruca Records Access Officer Appeals Unit/Public Records Unit Office of the Suffolk County District Attorney One Bulfinch Place Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Jeffrey J. Pyle, Esq. of Prince Lobel, on behalf of his client Julie Cohen Editor of the Newton Tab, appealing the response of the Office of the Suffolk County District Attorney (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Cohen requested a copy of: “a mugshot of an [identified person] who was arrested on May 21 and charged with firearms violations and murder.” Ms. Cohen seeks to receive the image as a .jpg attachment if possible. In a June 11, 2020 response, the Office denied the request for the requested booking photo under the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a), and the privacy clause of Exemption (c) of the Public Records Law. As a result, Attorney Pyle petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (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 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

Claudia Buruca SPR20/0972 Page 2 June 30, 2020 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). 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. CORI Act The Office indicates that booking photographs are restricted by the CORI Act. See G. L. c. 6, § 167. In its June 11th response, the Office asserts, “[i]t is the position of the Office that a photo of this individual: (1) relates to an identifiable individual; (2) relates to the nature of a criminal charge; and (3) was compiled in a criminal proceeding that defendant was arraigned for.” The updated definition of CORI states in relevant part: [R]ecords 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,

Claudia Buruca SPR20/0972 Page 3 June 30, 2020 incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings 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 not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). The Office contends that releasing the photo of the defendant in this matter is not in the public interest, and would defeat the protections of the CORI statute. The Office seeks to make a distinction with this request and the situation presented in a Supreme Judicial Court case, Boston Globe Media Partners, LLC v. Dep’t of Criminal Justice Info. Serv., 140 N.E.3rd 923 (Mass. 2020). In the Globe decision, the Supreme Judicial Court (SJC), while discussing whether booking photographs and incident reports are exempt from disclosure under the Public Records Law, stated the following: We begin by looking closely at the current definition of CORI and conclude that the records at issue in this case are not CORI. As relevant here, records or data compiled by a Massachusetts criminal justice agency may be CORI where they (1) “concern an identifiable individual”; (2) “relate to the nature or disposition of a criminal charge, an arrest,” a sentence, or release; (3) are “recorded in criminal proceedings that are not dismissed before arraignment” -- in other words, in a criminal proceeding where the defendant was arraigned; (4) concern criminal offenses committed by a person who is eighteen years of age or older or where a juvenile was adjudicated as an adult; and (5) concern offenses that are punishable by incarceration. G. L. c. 6, § 167. The booking photographs do not meet this definition because they say nothing as to the nature of a criminal charge or arrest (that is, whether it was for operating a motor vehicle while under the influence or manslaughter) or its disposition; the photographs are simply the product of the booking procedure arising from an arrest. . . . so both the incident reports and the booking photographs fail to satisfy the part of the CORI definition requiring that the records be recorded in a criminal proceeding where the defendant was arraigned.” Globe, 140 N.E.3d at 931-32 (emphasis added). Based on the foregoing, although the Office indicates that the responsive record is exempt, because the identified individual was arraigned, I find it has not met its burden to withhold the requested booking photo from disclosure. Specifically, it remains unclear how the booking photo constitutes “information recorded in criminal proceedings that are not dismissed

Claudia Buruca SPR20/0972 Page 4 June 30, 2020 before arraignment” as defined in G. L. c. 6, § 167, and not “. . . simply the product of the booking procedure arising from an arrest . . .” as indicated by the SJC. Globe, 140 N.E.3d at 932. I find that the Office must clarify this particular matter. Exemption (c) In its June 11th response, the Office also indicates that the booking photo may be withheld under the second clause of Exemption (c). Exemption (c) applies to: 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, 432-33 (1983). Second clause of (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 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

Claudia Buruca SPR20/0972 Page 5 June 30, 2020 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 June 11th response, the Office indicates, “[a]photo of a particular individual would fall under this category, as individuals have a privacy interest in having photographs of them released to the public.” However, the Office did not analyze the factors that must be considered 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). Additionally, the Office did not apply the required balancing test determining whether the public interest in disclosing the booking photo would substantially outweigh the seriousness of any invasion of the defendant’s privacy. See PETA, 477 Mass. at 291. Based on the Office’s June 11th response, I find the Office did not meet its burden to withhold the responsive booking photo under the second clause of Exemption (c). Burden of specificity in responding The Office denied this request without providing the requisite support to withhold the booking photo. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper - - - Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See 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). Conclusion Accordingly, the Office is ordered to provide Attorney Pyle with a response to the request, 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: Jeffrey J. Pyle, Esq., Prince Lobel