Justice Ainooson v. Plymouth District Attorney's Office (SPR 20201997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2020 SPR20/1997 Keith Garland, Esq. Assistant District Attorney/Records Access Officer Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of Justice Ainooson appealing the response of the Plymouth County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 7, 2020, Mr. Ainooson requested, “… a copy of all documentation, materials, recordings both video and audio, statements, reports, logs, journals, pertaining to the shooting death of [named individuals] that took place in Brockton Massachusetts on June 17, 2005 near [a named intersection] … [and] a copy of the complete case file of the above intersection … and all documentation, materials, recordings (audio and video), but not limited to … the above from … 2005 to the present.” 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). 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. SPR20/1997 Page 2 October 29, 2020 The Office’s August 13th response The Office responded on August 13th and denied the request pursuant to CORI and Exemptions (a), (c) and (f) of the Public Records Law. Unique right of access; purpose of request In its August 13th response, the Office contends that the appeal process initiated to the Supervisor of Public Records is inappropriate because a defendant that is the subject of the records has a unique right of access to the documents being requested. The Office references post-conviction discovery rules and Bougas v. Chief of Lexington, 371 Mass. 59, 61 (1976). 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 party'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). Despite the Office's response, it remains unclear how Mr. Ainooson has a unique right of access to the requested information through statutory, regulatory, judicial or other applicable means. Specifically, it is unclear how the potential for post-conviction discovery, or the fact that Mr. Ainooson has the potential ability to obtain the records, either pro se or from an attorney, constitutes having a unique right of access through the judicial process. 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, 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

Keith Garland, Esq. SPR20/1997 Page 3 October 29, 2020 expressly limit the dissemination of particular records to a defined group of individuals or entities. In its response, the Office states, “[o]ur case file is entirely CORI protected … [and] all of the records in our prosecution file … involves an identifiable individual, and it relates to the nature of an arrest, criminal charges, and court proceedings. This case file is replete with non- severable CORI, matter correlated with defendant specific information, and cannot be disclosed.” The Office further stated, “[a] subject who seeks 'to obtain his own criminal offender record information … shall have the right to inspect, and if practicable, obtain a copy of all criminal offender record information from the department that refers to the subject. G.L. c. 6, § 175 (emphasis added). The ‘department’ is the Department of Criminal Justice Information Services. G.L. c. 6, § 167.” 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 of Exemption (c) medical The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). In its August 28th response, the Department stated, “[a]utopsy records are … exempt from the Public Records law [pursuant] to G. L. c. 4, § 7(26)(c).” 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

Keith Garland, Esq. SPR20/1997 Page 4 October 29, 2020 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the Office stated, “[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.” To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the records custodian to prove 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 exemption or exemptions upon which the withholding is based …”); see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Keith Garland, Esq. SPR20/1997 Page 5 October 29, 2020 I find that it remains unclear why the Office cannot provide segregable portions of the responsive records. The Office’s August 13th response did not contain the specificity required in a denial of access to public records. The Office must identify what records it has in its possession, custody or control that are responsive to Mr. Ainooson’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 2.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I find that the Office has not met its burden to withhold responsive records in their entirety under the exemptions described above. Conclusion Accordingly, the Office is ordered to provide Mr. Ainooson with a response to the request, 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: Justice Ainooson