Andrew Quemere v. Plymouth District Attorney's Office (SPR 20201605)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 22, 2020 SPR20/1605 Keith Garland, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of Andrew Quemere appealing the response of the Plymouth County Office of the District Attorney (Office) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on August 14, 2020, Mr. Quemere requested: “[1.] Your office's ‘Brady lists,’ which refers to lists of police officers who have credibility problems and other concerns that must be disclosed to the defense if the officer is involved in a criminal prosecution [2.] All letters, emails, and other communications notifying police departments and/or individual police officers that an officer has been added to a Brady list for the years 2015 to the present [3.] All policies, procedures, and training records related to Brady lists.” Previous Appeal The requested records were the subject of a previous appeal. See SPR20/1555 Determination of the Supervisor of Records (September 15, 2020). In my September 15th determination, I found that the Office’s August 27th response did not contain the specificity required in a denial of access to public records. The Office was ordered to review the request and provide a response to Mr. Quemere made in accordance with the Public Records Law, its Access Regulations and the order within 10 business days. On September 8, 2020, the Office provided a response to Mr. Quemere. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office, and SPR20/1605, 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 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. SPR20/1605 Page 2 September 22, 2020 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). The Office’s September 8th response In its September 8th response, the Office indicates records that are being withheld from disclosure, including, form notice disclosures, police report, disciplinary record, hearing transcripts, video files, protective order, and emails involving disclosure. The Office further asserted that any information, documents, and records involving police officers would be excluded pursuant to Exemptions (a), (c), (d), (f), and privileged work-product. The Office states “any information, documents, and records involving police officers that we determined may be challenged based upon credibility would be excluded by because it is privileged work-product. G.L. c. 4, § 7(26)(a) & (c). All of the above documents and information are privileged work-product.” The Office further states “[a]dditionally, such information is exempt from production under the public records laws under the investigatory exemption, the privacy exemption, and the deliberative process exemption of G.L. c. 4, § 7, clause 26 (c), (d), and (f). Further, the notices of disclosure, discipline records, and video files are exempt under the privacy exception. The emails are further exempt under the deliberative process exemption.” The Office explains “‘Brady’ information, documents, or records of officers, about whom disclosure has occurred on a case by case basis, or may occur, would reflect legal opinions and judgments, internal deliberations, investigatory matters, and private matters about such persons.” 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

Keith Garland, Esq. SPR20/1605 Page 3 September 22, 2020 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. Criminal Offender Record Information (CORI) Act Under Exemption (a), the Office cites the CORI Act, G. L. c. 6, § 167, as well as Rule 5 (d) of the Massachusetts Rules of Criminal Procedure and G. L. c. 268, § 13B. The definition of CORI states: [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, 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. The Office asserts “[t]he police reports and dangerousness hearing transcripts are CORI protected and exempt from disclosure.” The Office further states “Rule 5 (d) of the Massachusetts Rules of Criminal Procedure prohibits the dissemination of grand jury transcripts without a court order…. [a]lso G.L. c. 268, § 13B (unlawful to disseminate grand jury transcripts with intent to interfere with criminal proceedings). Grand Jury materials are therefore exempt from the definition of public records. G.L. c. 4, § 7, cl. 26 (a) (‘specifically or by necessary implication exempted from disclosure by statute’). Officer 3’s disclosure involves a Grand Jury investigation, which further exempts the information from disclosure.”

Keith Garland, Esq. SPR20/1605 Page 4 September 22, 2020 Based on the Office’s response, I find it has not met its burden to demonstrate how the responsive records are exempt under the CORI Act in their entirety. It is additionally uncertain how Rule 5(d) of the Massachusetts Rules of Criminal Procedure and G. L. c. 268, § 13B, permit the Office to withhold the “Form Notice of Disclosure,” as well as a “Protective Order/Motion to File Under Seal,” for Officer 3. 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). First clause - Personnel 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). 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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are “carrying out their duties in an efficient and law-abiding manner.” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual’s official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987).

Keith Garland, Esq. SPR20/1605 Page 5 September 22, 2020 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 292. 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. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4,

Keith Garland, Esq. SPR20/1605 Page 6 September 22, 2020 § 7(26)(d); -se-e -al-so- -E-nv-t-l. -P-ro-t-ec-ti-o-n -A-g-e-nc-y- v-. -M-i-n-k, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). 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. 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. Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open "the question whether opinion work product might no longer be protected once the litigation is concluded," noting that the answer "may depend on the particular circumstances, such as the risk of similar litigation." Id. at 459 n.16. Burden of specificity; segregable portions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. 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

Keith Garland, Esq. SPR20/1605 Page 7 September 22, 2020 exemption or exemptions upon which the withholding is based); -see also- Globe N-ewspap-er Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Office’s September 8th response did not contain the specificity required in a denial of access to public records under Exemption (a), (c), (d), and (f). The Office is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. As a result, I find that the Office has not met its burden of specificity in withholding the responsive records in their entirety under the cited exemptions. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to review the request and provide a response to Mr. Quemere made in accordance with the Public Records Law, its Access Regulations and this order 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, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere