Stephanie Gates v. Essex District Attorney's Office (SPR 20211740)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 27, 2021 SPR21/1740 David O’Sullivan, Esq. Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney O’Sullivan: I have received the petition of Stephanie Gates appealing the response of the Essex 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 December 10, 2020, Ms. Gates requested “. . . copies of all records pertaining to the investigation of the extreme bullying incidents at the Coffin School in Marblehead, MA during the fall 2018.” Previous appeals This request was the subject of previous appeals. See SPR21/0345 Determination of the Supervisor of Records (February 26, 2021) and SPR21/0655 Determination of the Supervisor of Records (March 31, 2021). In my March 31st determination, I ordered the Office to provide this office with un-redacted copies of the responsive records for in camera inspection. The Office provided a response on May 26, 2021, claiming Exemptions (a), (c) and (f) apply to withhold the records from disclosure. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Office’s response, Ms. Gates petitioned this office and this appeal, SPR21/1740, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Gates’ purpose in making the request has no bearing on the public status of any existing responsive records. 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

David O’Sullivan, Esq. SPR21/1740 Page 2 July 27, 2021 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. The Office’s May 26th response In its May 26, 2021 response, the Office indicates that it is in possession of two responsive case files which concerns allegations of sexual assault by minor children. The Office explains that Case file # 1, “. . . consists of a video recording on CD of a forensic interview with the child, ancillary documents concerning this interview, a G.L. c. 119 § 51A report, and a police report. All of these materials either identify the child and/or disclose the contents of the child’s report, or both.” The Office further explains that Case file # 2 “. . . consists of a referral sheet and a 51A report. We understand the requesters are already in possession of the latter.” 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.”

David O’Sullivan, Esq. SPR21/1740 Page 3 July 27, 2021 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 Office states that in addition to the previously cited investigatory and privacy exemptions, the nature of the allegations here place the records in question within the ambit of Exemption (a). The Office cites G. L. c. 41, § 97D; G. L. c. 265, § 24C; G. L. c. 119, § 60A and G. L. c. 119, § 51F. The Office posits that while G. L. c. 41, § 97D “. . . applies specifically to records in the hands of the police, the protection would mean little if the same records were obtainable in the hands of a District Attorney. Therefore, the ‘necessary implication’ G.L. c. 4 § 7 cl. 26(a) of this statute is that such ‘reports’ are protected regardless of the particular branch of law enforcement that happens to be in possession of them. . . .” G. L. c. 41, § 97D provides 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276. . . . G. L. c. 41, § 97D. Victim’s name; confidentiality That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13B1/2, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking

David O’Sullivan, Esq. SPR21/1740 Page 4 July 27, 2021 of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be deemed to be a public record under the provisions of section seven of chapter four. . . . G. L. c. 265, § 24C. Central registry of information; confidentiality; penalties The department shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order; provided, however, that the department, upon request, may release this data and information to a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent. The commissioner shall establish rules and regulations governing the availability of such data and information. Pursuant to chapter 18C, the child advocate shall have access to the information in the registry. . . . G. L. c. 119, § 51F. 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, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y 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 289-290.

David O’Sullivan, Esq. SPR21/1740 Page 5 July 27, 2021 Under Exemption (f), the Office states “. . . sexual assaults are notoriously underreported. Assurances of confidentiality are essential to encourage the parents of children who have disclosed sexual assaults to make the already difficult choice to come forward to law enforcement. The interests at issue apply without regard to whether the allegations, if proven true, would, given the age of the children, constitute prosecutable crimes under Massachusetts law.” The Office explains that “. . . there is little if anything of substance in these records that would not tend to identify the reporting child or disclose the child’s ‘report.’ . . . While some material may not immediately identify the witness, ‘[t]he inquiry as to what constitutes identifying information regarding an individual ... must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual . . .’).” The Department cites Bougas. Based on the above referenced statutes, which contemplates the confidentially of reports of rape and sexual assault, as well as 51A reports, I find the Office may permissibly withhold the records from disclosure under Exemption (a). It is unclear if Ms. Gates may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate if there is another means affording Ms. Gates a greater right of access to the responsive records. However, it is unclear how the Office may withhold the referral sheet, in its entirety, 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify this issue. Conclusion Accordingly, the Office is ordered to provide Ms. Gates 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephanie Gates