Tyler Ingraham v. Hampden County District Attorney's Office (SPR 20212057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2021 SPR21/2057 Joseph Pieropan, Esq. Records Access Officer Hampden County District Attorney’s Office 50 State Street Springfield, MA 01102 Dear Attorney Pieropan: I have received the petition of Tyler Ingraham, Esq. appealing the response of the Hampden County District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 17, 2021, Attorney Ingraham requested: digital copies of records pertaining to 58A hearings in the fiscal year FY2020 and for FY 2021 to date. Specifically, I am requesting a digital copy of each motion filed under Massachusetts General Laws Chapter 276 §58A, and any attachments to said motions, by your office in the District Courts of Hampden County in FY2020 (July 1st 2019 to June 30th, 2020), and for FY2021 through this date (July 1st, 2020 to June 17th, 2021). Previous Appeal This request was the subject of a previous appeal. See SPR21/1980 Determination of the Supervisor of Records (August 12, 2021). The DAO provided a response on August 11, 2021. Unsatisfied with the DAO’s response, Attorney Ingraham petitioned this office and SPR21/2057 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). 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

Joseph Pieropan, Esq. SPR21/2057 Page 2 August 30, 2021 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 DAO’s August 11th Response On August 11, 2021, the DAO explained, “[s]pecifically, all motions and attachments are not digitally archived because in many instances the original copies of the attachments are provided to the Court without the prosecutor retaining a file copy. The attachments include, again in most instances, the defendant's Board of Probation criminal history, probation violation notices, and police reports containing victim statements and personal identifying information. Further, at this time a number of these prosecutions remain open.” The DAO then cited Exemptions (a) and (c) for the withholding of requested records. The DAO stated, “[c]riminal histories listing prior convictions for felonies and misdemeanors are exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(a), and G.L. c. 6, §§167A, 172. Likewise, this information, as well as any personal identifying information, is exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(c).” The DAO’s August 18th Supplemental Response The DAO provided a supplemental response on August 18, 2021 explaining “this Office could not provide copies of the requested motions and attachments for two reasons: First, not all motions and attachments are digitally archived and it would not be practical to hand-search each file to locate and copy the motion and any attachments. Second, any such attachments would likely be exempt from disclosure pursuant to the CORI statute, G.L. c. 6, §§ 167 et seq.” In addition, the DAO further claimed “[a]s stated above, the District Attorney's files are not likely to contain all the records sought by Attorney Ingraham, who initially stated that he was willing to complete his own search for records once he obtained the relevant docket numbers. The District Attorney can neither provide records it does not possess nor secure access to court documents it does not control.” 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

Joseph Pieropan, Esq. SPR21/2057 Page 3 August 30, 2021 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, 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 The current definition of criminal offender record information (CORI) is as follows: “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.

Joseph Pieropan, Esq. SPR21/2057 Page 4 August 30, 2021 G. L. c. 6, § 167. Exemption (c) Exemption (c) applies to: 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 Property 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. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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. See also Reinstein ------------

Joseph Pieropan, Esq. SPR21/2057 Page 5 August 30, 2021 v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The DAO’s August 11th and August 18th responses did not contain the specificity required in a denial of access to public records. The DAO did not identify the records in its possession that it intends to withhold from disclosure. Further, the DAO merely cites Exemption (a) and (c) without sufficient explanation of the applicability of the exemptions to the responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The DAO must clarify this. This office continues to encourage Attorney Ingraham and the DAO to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the DAO is ordered to provide Attorney Ingraham with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Tyler Ingraham, Esq.