Peter Jasper v. Office of the District Attorney - Bristol District (SPR 20211777)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 28, 2021 SPR21/1777 Erica Sylvia, Esq. Assistant District Attorney Office of the District Attorney, Bristol District 888 Purchase Street New Bedford, MA 02740 Dear Attorney Sylvia: I have received the petition of Peter Jasper appealing the response of the Office of the District Attorney, Bristol District (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 21, 2021, Mr. Jasper requested “all incoming and outgoing emails from the District [Attorney’s] Office of Superior cases only for the days of June 9, 10, and 11, 2020.” The Office responded on June 30, 2021, denying Mr. Jasper’s request. Unsatisfied with the Office’s response, Mr. Jasper appealed, and this case 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. 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

Erica Sylvia, Esq. SPR21/1777 Page 2 July 28, 2021 Current Appeal In his appeal petition, Mr. Jasper states that the Office “wrote back denying [his] request with various reasons why.” He notes that a different district attorney’s office replied to an identical request with “pages of incoming and outgoing emails . . . with all redacted privileged and private information Blacked out at no cost to [him].” And he asks “Bristol . . . County District Attorney’s Office to do the same.” The Office’s June 30th Response In its June 30, 2021 response, the Office states that the records Mr. Jasper requests “are exempt from the definition of public records under G. L. c. 4, § 7, cl. 26(a), (d), (f).” 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, 3 77 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. CORI Under Exemption (a), the Office cites the Criminal Offender Record Information (CORI) statute. The current definition of CORI is as follows:

Erica Sylvia, Esq. SPR21/1777 Page 3 July 28, 2021 “Criminal offender record information,” records 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 be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. 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, § 7(26)(d); see also Envtl. Protection Agency v. ----------------------- Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Erica Sylvia, Esq. SPR21/1777 Page 4 July 28, 2021 Under Exemption (d), the Office argues that “[t]his office understands [Mr. Jasper’s] request to seek internal e-mails or inter-agency e-mails. However, these records are not subject to dissemination under the Public Records Law and this office objects to providing any such information based on the work product privilege.” 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 289-90. Under Exemption (f), the Office contends that “[b]ecause this office is responsible for prosecutions and the actions of its agents who conduct investigations, the emails of its employees, by their very nature, involve information regarding on-going investigations, which is exempt under the investigatory exemption. It would interfere with this office’s future criminal investigations to alert the public as to investigatory techniques that may or may not be used currently or in the future to conduct criminal investigations.” Burden of Specificity; Duty to Segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemptions which apply. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. ------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemptions (a), (d), and (f) of the Public Records Law. 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).

Erica Sylvia, Esq. SPR21/1777 Page 5 July 28, 2021 The Office’s response did not contain the specificity required in a denial of access to public records. The Office did not identify the records in its possession that it intends to withhold from disclosure under Exemptions (a), (d), and (f). Further, the Office merely cites and explains Exemption (a) and the CORI statute without any explanation of the applicability of the exemption or the statute to the responsive records. The Office must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Mr. Jasper with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Jasper