Andrew Quemere v. Bristol County District Attorney's Office (SPR 20220185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2022 SPR22/0185 Mary Lee, Esq. Assistant District Attorney Bristol District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Andrew Quemere appealing the response of the Bristol 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 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 26, 2022, providing numerous records in redacted form and withholding others. Unsatisfied with the Office’s response, Mr. Quemere 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 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

Mary Lee, Esq. SPR22/0185 Page 2 February 8, 2022 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. The Office’s Response In its January 26, 2022 response, and in a letter to this office and Mr. Quemere on February 4, 2022, the Office states that it has no records responsive to Item 1 of the request, and states that it “provided nine redacted documents consisting of 178 redacted pages” and withheld other records responsive to Items 2, 3, and 4, pursuant to Exemptions (a), (c), (d) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (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, 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

Mary Lee, Esq. SPR22/0185 Page 3 February 8, 2022 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. 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 response, regarding Item 2, the Office states that “the records are also exempt from

Mary Lee, Esq. SPR22/0185 Page 4 February 8, 2022 dissemination because they are associated with a named individual’s criminal prosecution and are protected from public disclosure under the CORI statute.” Regarding Item 3, the Office argues that “communications with individual criminal defendants are protected from public disclosure pursuant to the CORI statute. . . . Providing such communications risks identifying criminal defendants.” 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 how the narrow scope of this request would allow docket numbers to be withheld under Exemption (a) and CORI under Middle Dist. With regard to the names and docket numbers of the police officers, it is not clear how the communications with police departments constitute “information recorded in criminal proceedings,” where the letters and other communications were created after the criminal proceedings in which the police officers were involved. See G. L. c. 6, § 167. Additionally, it is not clear how written communications from prosecutors to defendants constitute “information recorded in criminal proceedings.” The Office must clarify these matters. 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. 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

Mary Lee, Esq. SPR22/0185 Page 5 February 8, 2022 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. Under Exemption (c), the Office argues the following: Within the record, labeled “8-24-2021 Fall River,” several officers were exonerated. The records have been redacted with regard to the names of those exonerated officers. These records of exoneration are not records of a misconduct investigation, as the documents demonstrate no misconduct by those officers. The records therefore are simply personnel records of those officers. Having been exonerated and having no allegations made against them, there is no basis to require dissemination of their identities. . . . The redacted records demonstrate the various types of Brady materials and how this office addresses such matters, without undermining the personal privacy interests of any individuals. Such individual interests should be accommodated as fully as possible, particularly if no criminal activity is alleged, to provide such officers with the same privacy rights of officers who are charged with crimes and are protected under the CORI statute. Further, these matters do not implicate the public interests described in Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, 484 Mass. 279, 294 (2020). Based on the Office’s response, I find the Office has failed to demonstrate how “records of exoneration” of police officers are not records of law enforcement misconduct investigations. Additionally, the Office has not demonstrated how the privacy interests involved outweigh the public interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. See PETA, 477 Mass. at 292. Accordingly, I find the Office has not met its burden to withhold or redact such information pursuant to Exemption (c). Exemption (d) Exemption (d) allows the withholding of:

Mary Lee, Esq. SPR22/0185 Page 6 February 8, 2022 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). Under Exemption (d), the Office argues that “inter-office communications are not subject to the Public Records Law” and that the “office has no duty to disclose matters that are being considered but have not yet reached any conclusion.” It is unclear from the Office’s response what deliberative process remains ongoing or what legal or policy matters may be involved. Accordingly, I find the Office has not met its burden to withhold or redact the responsive records pursuant to Exemption (d). 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

Mary Lee, Esq. SPR22/0185 Page 7 February 8, 2022 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainant and 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); Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the 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 and his [or her] career.” Id. at 438. Under Exemption (f), the Office states that it has redacted the names of individuals and businesses “who are victimized or complain to law enforcement.” Where this information has been redacted to protect the identities of victims and voluntary witnesses, I find the Office may properly redact such information pursuant to Exemption (f). Additionally, under Exemption (f), the Office argues that “the Pessoa prosecution has been pending since June, 2019. The other . . . former officer [Robillard] continues to have pending prosecutions that are proceeding in the Fall River District Court.” Based on the Office’s response, it is unclear what specific records are being withheld in regard to these ongoing prosecutions. 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”). See also Globe Newspaper Co. v. Police ------------------------- Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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). The Office must identify the specific records being withheld. Impoundment Order In its February 4th letter, the Office states the following: An additional reason [for withholding records] exists regarding Michael Pessoa’s prosecution in that some records were impounded. Any records that have been disclosed to criminal defendants pursuant to an impoundment or protective order cannot be disclosed publicly. Two such officers are referenced in In the Matter of a Grand Jury Investigation, 485 Mass. at 642. That published decision was provided to Mr. Quemere without redaction. Impoundment is an additional basis to withhold the records from dissemination as public records. Commonwealth v. Chism, 476 Mass. 171, 185, n.9 (2017).

Mary Lee, Esq. SPR22/0185 Page 8 February 8, 2022 Based on the Office’s response, it is unclear how the order described above operates through an exemption to the Public Records Law to allow for the withholding of responsive records. See G. L. c. 66, § 10(b)(iv) (written response must “provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Further, it is unclear which specific records the order in question applies to, and how this order prevents disclosure of the records at issue in this appeal. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify these matters. Records in Existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). With regard to Item 1 of the request, the Office states that it “does not maintain a ‘Brady list.’ There is no responsive record as to this request.” Where the Office has confirmed that it has no records responsive to Item 1 of the request, I find the Office has met its burden in responding to Item 1. 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, ~ .f) .d ~ ~ ~ - ~·~- . 0 Rebecca S. Murray Supervisor of Records cc: Andrew Quemere