Matthew Rocheleau v. Suffolk County District Attorney's Office (SPR 20211234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1234 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Mr. Matthew Rocheleau of the Boston Globe appealing the response of the Suffolk 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). On November 5, 2020, Mr. Rocheleau requested the following: “[1] Any/all reports by employees of the Suffolk District Attorney Office, including but not limited to [identified Attorney], about a fatal crash involving [identified individuals] on July 3, 2018. [2] Any/all emails, other correspondence, and documents exchanged between employees of the Suffolk District Attorney Office, including but not limited to [identified Attorney], and employees of either the California DMV, the Massachusetts RMV officials, or both of those motor vehicle agencies regarding [identified individual]. [3] Any/all emails, other correspondence, and documents exchanged between employees of the Boston Police Department, including by not limited to Fatal Collision Investigative Team members: [identified officers], and employees of either the California DMV, the Massachusetts RMV officials, or both of those motor vehicle agencies regarding [identified individual]. [4] Any/all video footage described below: [a] Footage recovered on July 3, 2018, video camera footage from Homeland Security Camera #53 located at Massachusetts Avenue and Columbia Road. These files were recovered and digitally archived as ‘Eddy Everett Sq.’ contained one sub-folder archived as ‘C11 - Columbia - Mass- 20180703- 144500 [b] Footage recovered on July 3, 2018 from outside the 224 Boston Street Restaurant. These files were recovered and digitally archived as ‘224 Boston 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 SPR21/1234 Page 2 June 1, 2021 St’ contained two sub-folders archived as ‘ch08_20180703144804’ and ‘ch08_20180703144818. [c] Footage recovered on July 9, 2018, from outside the Dunkin Donuts located at 256 Boston Street. These files were recovered and digitally archived as ‘Dunkin Donuts’ contained three sub-folders archived as ‘Clip_1,’ ‘Clip_2’, ‘Clip_3” [5] Supplemental Report to I#182052234 filed by [identified officer] on 7/03/2018 [6] Any/all photos, videos, and/or written/typed documents describing an inspection and search of a 2016 black Toyota Camry conducted on July 13, 2018 by members of the Collision Team along with members of the Crime Scene Response Unit. The Camry had been driven by [identified individual] on July 3, 2018. The inspection and search were completed under the authority of an unnumbered Search Warrant issued out of Suffolk Superior Court by Judge Robert Tochka. The search of the interior was conducted by [identified officer].” Previous appeals The requested records were the subject of previous appeals. See SPR20/2524 Determination of the Supervisor of Records (January 5, 2021) and SPR21/0857 Determination of the Supervisor of Records (April 20, 2021). In my April 20th determination, I ordered the Office to provide Mr. Rocheleau with a response indicating whether responsive records were withheld from disclosure. Subsequently, the Office provided a response on May 4, 2021. Unsatisfied with the Office’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/1234, was opened as a result. It appears Mr. Rocheleau is appealing Items 3, 4, 6, and 7, as numbered below. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Claudia Buruca SPR21/1234 Page 3 June 1, 2021 The Office’s May 4th response In its May 4, 2021 response, the Office indicated that it withheld from disclosure, the following records: [1] Two autopsy reports and 54 autopsy photographs, withheld entirely based on: (G.L. c. 4, § 7(26)(a) and (c); G.L. c. 38, § 2; LeBlanc v. Commonwealth, 457 Mass. 94, 96 (2010); Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 136 (1989)); [2] 23 reports (such as BOP, KQ and III) received from the Department of Criminal Justice Services related to various identified individuals, withheld based on: Personal identifying information (including civilian witness names, dates of birth, addresses, social security numbers, driver’s license numbers) (G.L. c. 4, § 7 cl. 26(c)); and Criminal Offender Record Information and any information obtained through Criminal Justice Information Systems (including booking photographs, police reports, motor vehicle information, and criminal charges) (G.L. c. 4, § 7(26)(a); G.L. c. 6, §§ 167A, 172); [3] Eight multimedia items including graphic photographs, text messages, and videos captured by a witness, withheld entirely based on: materials the disclosure of which would constitute an unwarranted invasion of personal privacy (G.L. c. 4, § 7(26)(c)); [4] Four documents for a search warrant and 78 photographs of the search warrant return withheld entirely based on: (G.L. c. 276, §§ 3; 3A; Commonwealth v. George W. Prescott Publ’g Co., LLC, 463 Mass. 258, 268 (2012)); [5] One witness contact list and one family contact list withheld entirely bases on: Personal identifying information (including civilian witness names, dates of birth, addresses, social security numbers, driver’s license numbers) (G.L. c. 4, § 7 cl. 26(c)); and Materials the disclosure of which would constitute an unwarranted invasion of personal privacy (G.L. c. 4, § 7(26)(c)); [6] Two audio recordings withheld entirely based on: Personal identifying information (including civilian witness names, dates of birth, addresses, social security numbers, driver’s license numbers) (G.L. c. 4, § 7 cl. 26(c)); and Materials the disclosure of which would constitute an unwarranted invasion of personal privacy (G.L. c. 4, § 7(26)(c)); [7] Two video recording of a named individual, withheld entirely based on: Personal identifying information (including civilian witness names, dates of birth, addresses, social security numbers, driver’s license numbers) (G.L. c. 4, § 7 cl. 26(c)); and Materials the disclosure of which would constitute an unwarranted invasion of personal privacy (G.L.c. 4, § 7(26)(c)). Items 3, 6 and 7 – photographs, text messages, video and audio recordings In his appeal petition, Mr. Rocheleau states, “I disagree with the office’s claims that various exemptions permit it to withhold some of the responsive records in their entirety.

Claudia Buruca SPR21/1234 Page 4 June 1, 2021 Specifically the office said it has withheld [records responsive to Items 3, 4, 6, and 7]. . . . For each [Item] above, the office has failed to adequately explain how the exemptions cited would permit the office to withhold the records in their entirety. For [Items 3, 6, and 7], it would seem all of those records can be provided with redactions only to the portions of those records for which (c) may apply and it’s unclear how that exemption would specifically apply at all.” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption 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 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 exemption 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 response, the Office states that it withheld these records from disclosure because it contains “[p]ersonal identifying information (including civilian witness names, dates of birth, addresses, social security numbers, driver’s license numbers) [and] . . . disclosure . . . would

Claudia Buruca SPR21/1234 Page 5 June 1, 2021 constitute an unwarranted invasion of personal privacy.” Based on the Office’s response, it is unclear why the records cannot be redacted to maintain the confidentiality of exempt information and preserve the anonymity of voluntary witnesses so that non-exempt portions can be provided. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Item 4 - Search warrant records Further, in his appeal petition Mr. Rocheleau states “[f]or [Item 5], the office references a statute but does not explain how that statute applies to the records specific to this request nor does it appear that statute would allow for the office to withhold/redact any records under the public records law.” In its response, the Office cites G. L. c. 276, §§ 3; 3A to withhold the records in their entirety. 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 Att’y 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.

Claudia Buruca SPR21/1234 Page 6 June 1, 2021 The statutes state in relevant parts: Seizure, custody and disposition of articles; exceptions If an officer in the execution of a search warrant finds property or articles therein described, he shall seize and safely keep them, under the direction of the court or justice, so long as necessary to permit them to be produced or used as evidence in any trial. As soon as may be, thereafter, all property seized under clause First of section one shall be restored to the owners thereof; and all other property seized in execution of a search warrant shall be disposed of as the court or justice orders and may be forfeited and either sold or destroyed, as the public interest requires, in the discretion of the court or justice . . . G. L. c. 276, § 3. Time for return of search warrant Every officer to whom a warrant to search is issued shall return the same to the court by which it was issued as soon as it has been served and in any event not later than seven days from the date of issuance thereof, with a return of his doings thereon; provided, however, that a justice of the superior court may at any time receive complaints and issue search warrants returnable in seven days before a district court named in such warrant and in that event the officer shall make his return to such district court as directed. G. L. c. 276, § 3A. Based on the Office’s response, it is unclear how the cited statutes permit it to withhold the “four documents for a search warrant and 78 photographs of the search warrant return” from disclosure. Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Department cites G. L. c. 276, §§ 3; 3A, it remains unclear how the statutes specifically or by necessary implication permit it to withhold the requested records from disclosure. The Office must clarify these issues. Conclusion Accordingly, the Office is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Claudia Buruca SPR21/1234 Page 7 June 1, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau