Andrew Quemere v. Northwestern District Attorney's Office (SPR 20220176)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 3, 2022 SPR22/0176 Cynthia M. Von Flatern, Esq. Assistant District Attorney Records Access Officer Northwestern District Attorney’s office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received the petition of Andrew Quemere appealing the response of the Northwestern District Attorney’s Office (Office/NWDAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 10, 2022, Mr. Quemere requested the following: [1.] The office’s Brady list, which refers to a list of law enforcement officers who have credibility issues or other concerns that might need to be disclosed to defendants in criminal cases [2.] All Brady information, meaning all records concerning individual law enforcement officers that might need to be, or have been, disclosed to defendants in criminal cases [3.] All communications with criminal defendants and/or defense counsel advising them of the existence of Brady information or an officer's placement on a Brady list [4.] All communications with police departments or individual officers regarding the existence or disclosure of Brady information or an officer's placement, or potential placement, on a Brady list. The Office responded on January 24, 2022, providing numerous records in redacted form. Unsatisfied with the Office’s response, Mr. Quemere appealed, and this case was opened as a result. 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

Cynthia M. Von Flatern, Esq. SPR22/0176 Page 2 February 3, 2022 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 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. Current Appeal In his appeal petition, Mr. Quemere contends that: It is clear from reviewing the records that the names of many of the police officers that were redacted are not subject to the CORI statute. Many of these names are used in reference to departmental policy violations, not criminal charges; such policy violations are not covered by the CORI statute. He also argues that “the office has not explained with specificity how the privacy exemption applies to the requested records.” In an email to this office and the District Attorney’s Office subsequent to the opening of this appeal, Mr. Quemere further contends that: The DAO withheld the names of police officers charged with crimes under the CORI law. The DAO has not provided enough information to demonstrate that the CORI law applies to these records. The records are likely public per the Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services decision.

Cynthia M. Von Flatern, Esq. SPR22/0176 Page 3 February 3, 2022 The Office’s Response In its January 24, 2022 response, the Office provides copies of “all of the letters sent to satisfy the Northwestern District Attorney’s obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963)” and cites Exemption (a), CORI, and Exemption (c) of the Public Records Law for redacting the responsive records. 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, 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

Cynthia M. Von Flatern, Esq. SPR22/0176 Page 4 February 3, 2022 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. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). In its January 24, 2022 response, the Office states that “names of defendants and officers as well as docket numbers of individual cases have been redacted to protect persons’ criminal offender record information (CORI).” In a letter to Mr. Quemere and this office on January 31, 2022, the Office clarifies that “only one officer, an officer in the town of Erving, had a criminal case dismissed prior to arraignment. For that officer, the statutory exemption for CORI would not apply.” The Office argues that its Exemption (c) claim would still apply for that record. Based on the Office’s response, it is not clear how the docket numbers of either the criminal defendants or the police officers fall within the definition of CORI. In Globe Newspaper Co. v. Dist. Att’y for the Middle Dist., 439 Mass. 374 (2003) (Middle Dist.), the Supreme Judicial Court concluded that “[d]ocket numbers of criminal cases prosecuted in public judicial proceedings, correlated with information that is also available from court or other public records, but not correlated with defendant-specific information, are public records under G.L. c. 4, § 7, Twenty-sixth, subject to mandatory disclosure under G.L. c. 66, § 10, and their disclosure is not prohibited by the CORI statute.” See Middle Dist., 439 Mass. at 385. Consequently, it is unclear

Cynthia M. Von Flatern, Esq. SPR22/0176 Page 5 February 3, 2022 how the narrow scope of this request would allow docket numbers to be withheld under Exemption (a) and CORI under Middle Dist. The Office must clarify these matters. With regard to the names and docket numbers of the police officers, it is not clear how the responsive letters constitute “information recorded in criminal proceedings,” where the letters were created after the criminal proceedings in which the police officers were involved. See G. L. c. 6, § 167. The Office must clarify this. Exemption (c) Exemption (c) permits the withholding of: 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 Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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) ----------------------------

Cynthia M. Von Flatern, Esq. SPR22/0176 Page 6 February 3, 2022 (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. In its January 24th response, under Exemption (c), the Office states that “names of defendants and officers as well as docket numbers of individual cases have been redacted . . . to protect persons’ privacy interests.” In its January 31st letter, the Office elaborates that “the police officers in question have information on file with their individual police departments that concern ‘officer misconduct’ or ‘officer dishonesty.’” The Office goes on to explain that it “must disclose to defense counsel in active criminal cases in which a police officer is a witness the police officer’s identity and a brief statement summarizing misconduct or dishonesty.” Further, the Office argues that “with respect to other types of documents within a police officer’s personnel file including those memorialized in the Brady letters at issue here, many will not be the result of a public investigation at all but will amount only to documentation by a supervisor of misconduct known to the supervisor.” Based on the Office’s response, where the responsive records concern misconduct by police officers, I find the Office has not shown how the redacted records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Office has not met its burden to redact the names of police officers pursuant to Exemption (c). Conclusion Accordingly, the Office is ordered to provide Mr. Quemere 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: Andrew Quemere