Michael A. Ugolini v. Hampden County District Attorney's Office (SPR 20212716)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2021 SPR21/2716 Joseph A. Pieropan, Esq. Records Access Officer Office of the District Attorney, Hampden District 50 State Street Springfield, MA 01102 Dear Attorney Pieropan: I have received the petition of Attorney Michael A. Ugolini appealing the response of the Office of the District Attorney, Hampden District (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 31, 2021, Attorney Ugolini requested “to inspect and copy any and all documents in the possession of the Hampden County District Attorney’s office concerning [a specific] captioned matter.” He specifies that he is “not seeking to inspect and copy the victims’ medical records.” The Office responded on August 16, 2021, providing a number of responsive records in redacted form. On August 24, 2021, Attorney Ugolini advised the Office that he believed additional responsive records exist, stating that he was “looking for payroll records from the Yellow Cab Co., which supported the Defendant’s alibi.” Following additional correspondence between Attorney Ugolini and the Office, on October 15, 2021, the Office indicated that the “search for the second half of the file is on-going and should be completed soon.” Unsatisfied with the Office’s response, Attorney Ugolini 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 agency or municipality 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 A. Pieropan, Esq. SPR21/2716 Page 2 October 29, 2021 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. Current Appeal In his appeal petition, Attorney Ugolini first contends the following: [T]he Record Access Officer responded to [the] request, but stated that he redacted attorney work product and materials protected by the attorney client privilege. However, he failed to provide a detailed description of the record, including the names of the author and recipients, and in general terms, the subject matter of the withheld information Second, Attorney Ugolini contends the following: As it is now almost two months since the matter of the missing records was drawn to the attention of the RAO, he should either produce the records or respond that the records are not “within [his] possession, custody or control.” Mass. Gen. Laws. c. 66 § 10(a)(ii); 950 CMR § 32.06(3)(c)(ii). Additionally, in an email on October 27, 2021, Attorney Ugolini further states that the “Office also says it has withheld ‘a Department of Social Services Child Abuse/Neglect Report provided to the District Attorney’s Office pursuant to G.L. c. 119 § 51B,’ but provides no legal basis for doing so.” The Office’s August 16th and October 27th Responses In its August 16, 2021 response, the Office provides numerous responsive records and states the following: [The Office has] redacted from these documents (1) personal identifying information, see G.L. c. 4, § 7, cl. 26(c); (2) grand jury minutes and related materials, see G.L. c. 4, § 7, cl. 26(a) & (f), Mass. R. Crim. P. 5(d); (3) attorney work product and materials protected by the attorney client privilege, G.L. c. 4, § 7, cl. 26(d), DaRosa v. City of New Bedford, 471 Mass. 446 (2015), Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007); and (4) medical, health, and hospital records. G.L. c. 4, § 7, cl. 26(c). In a letter to this office and Attorney Ugolini dated October 27, 2021, the Office provides the following information: [T]he subject matter of the withheld records consisted of the following materials: (a) personal identifying information, including dates of birth and social security numbers;

Joseph A. Pieropan, Esq. SPR21/2716 Page 3 October 29, 2021 (b) medical records of the victim; (c) photographs of private areas of the victim’s burn injuries; (d) intra-office notes contained within the prosecutor’s case file that disclose trial strategies and confidential communications with supervisors; (e) grand jury minutes and exhibits; and, (f) a Department of Social Services Child Abuse/Neglect Report provided to the District Attorney’s Office pursuant to G.L. c. 119, § 51B. The Office reiterates that “all these materials are exempt from disclosure pursuant to G.L. c. 4, § 7, cls. 26(a), (c), (d), & (f); Mass. R. Crim. P. 5(d); DaRosa v. City of New Bedford, 471 Mass. 446 (2015), and Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007).” 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. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating

Joseph A. Pieropan, Esq. SPR21/2716 Page 4 October 29, 2021 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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney 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. 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.

Joseph A. Pieropan, Esq. SPR21/2716 Page 5 October 29, 2021 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). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. 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. Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived.

Joseph A. Pieropan, Esq. SPR21/2716 Page 6 October 29, 2021 See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Burden of Specificity 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 are exempt from disclosure under the various exemptions of the Public Records Law cited in its response. 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). See G. L. c. 66, § 10(b )(iv) (a 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”). Based on the Office’s response, it is unclear how each cited exemption applies to each record being withheld or redacted. The Office must clarify these matters. Records Management In its October 27, 2021 response, the Office states the following: [R]egarding the Yellow Cab payroll records sought by Attorney Ugolini, after an exhaustive search of [the] Office’s archives . . . these records cannot be located. It is highly likely that these records were stored in one of two accordion files containing the case file in this matter. Only one of these two accordion files exists today, and it is likely that a major flood at the District Attorney’s basement storage unit in the Roderick L. Ireland Courthouse some ten years ago caused the destruction of the second accordion file along with many other paper records. Where the Office indicates that some responsive records may have been damaged in a flood, I find that the Office must demonstrate whether it followed proper records retention

Joseph A. Pieropan, Esq. SPR21/2716 Page 7 October 29, 2021 protocol. Please note, the Office must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. See G. L. c. 66, §§ 1, 8, 13, 15. I advise the Office to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the Office is ordered to provide Attorney Ugolini 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: Michael A. Ugolini, Esq.