Mike Beaudet v. Plymouth County District Attorney's Office (SPR 20211342)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 201 SPR21/1342 Arne Hantson, Esq. Assistant District Attorney Records Access Officer Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Hantson: I have received the petition of Mike Beaudet of WCVB Channel 5 Boston 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). On February 26, 2021, Mr. Beaudet requested copies of all investigative files involving an identified individual. The Office provided a response to the request on May 27, 2021. Unsatisfied with the Office’s response, Mr. Beaudet petitioned this office and SPR21/1342 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. 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. The Office’s May 27th response 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

Arne Hantson, Esq., RAO SPR21/1342 Page 2 June 11, 2021 On May 27, 2021, the Office responded stating, “ [w]e are unable to provide any information with regards to this closed investigation.” The Office went on to cite Exemptions (a), (c) and (f) of the Public Records Law for the withholding of records. In Mr. Beaudet’s appeal to this office, he said, “[b]oth the defendant and the victim in this case are now deceased so I believe all, or at least some, of the records should be considered public.” 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 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. The statute states in relevant 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 . . . G. L. c. 41, § 97D. In its May 27th response, the Office stated, “[g]iven that this case involves domestic

Arne Hantson, Esq., RAO SPR21/1342 Page 3 June 11, 2021 violence these documents do not qualify as public records. [The Office] cannot turn them over. Please see G.L.c. 41 Section 97D.” In its response, the Office asserted that an “investigation was conducted through the grand jury. Grand jury minutes and related materials are exempt from public records and cannot be turned over. Please see G.L. c. 4, §7(26)(a) & (f) and Mass. R. Crim. P. 5(d).” Based on the Office’s response, it is unclear what type(s) of records are being withheld from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Further, it is uncertain how the withheld records fall within the type of records contemplated in G. L. c. 41 § 97D. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). 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). 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. 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 May 27th response, the Office stated, “[m]edical information related to an identifiable individual will always be of a sufficiently personal nature to warrant exemption. Please see G. L. c. 4, § 7(26)(c).” The Office further explained that “[i]n addition, [the Office is] prohibited from turning over any autopsy reports. The chief medical examiner, with approval of the secretary of the executive office of public safety, shall promulgate rules for the disclosure of autopsy reports, which shall not be deemed to be public records, to those who are legally entitled to receive them. G.L. c. 38, § 2. Autopsy reports constitute exempt medical information.” To the extent the records contain medical information of an identified individual, the Office may permissibly withhold that portion from disclosure. However, it is unclear why the Office cannot provide segregable portions of the requested responsive records. The Office’s response did not contain the specificity required in a denial of access to public records in its entirety. The Office is advised that a records custodian is required to not only cite an exemption,

Arne Hantson, Esq., RAO SPR21/1342 Page 4 June 11, 2021 but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). 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. 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. To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, it remains unclear how all of the information contained in the requested responsive records falls under Exemption (f). 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

Arne Hantson, Esq., RAO SPR21/1342 Page 5 June 11, 2021 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must clarify this. In closing, 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. Beaudet 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: Mike Beaudet