Andrew Quemere v. Northwestern District Attorney's Office (SPR 20220392)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2022 SPR22/0392 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/0176 Supervisor of Records Determination (February 3, 2022). In my February 3rd determination, I ordered the Office to clarify its claims for redacting the responsive records. Subsequently, the Office responded on February 16, 2022. 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. SPR22/0392 Page 2 March 1, 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. The Office’s February 16th Response In its February 16, 2022 response, the Office reiterates its claims for redacting the responsive records pursuant to Exemption (a), the CORI statute, and Exemption (c). See G. L. c. 4 § 7(26)(a), (c); G. L. c. 6, § 167. 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

Cynthia M. Von Flatern, Esq. SPR22/0392 Page 3 March 1, 2022 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. 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.

Cynthia M. Von Flatern, Esq. SPR22/0392 Page 4 March 1, 2022 G. L. c. 6, § 172(m). Under Exemption (a) and CORI, the Office argues that “docket numbers for each individual defendant constitute criminal offender record information or CORI” and further argues the following: The Brady letters were sent to individual defense counsel in discovery. They are not part of the court file for each defendant and not part of any court records. Defense counsel who receive notification that a Brady letter exists for a specific officer may investigate that fact further, including summonsing records of investigations under Mass. R Crim. P. 17. Without some steps, the information will never come to light at court and there would be no reason for anyone to know about the person’s criminal case. The information is information that is ‘not in the court’s records or any other public record.’ . . . Similarly, with respect to police officers who have had a criminal case that has led to release of a Brady letter, that fact is not part of a publicly available criminal record. A person cannot make a search of a court list and determine which criminal cases relate to police officers. Although docket numbers that relate to a specific type of case, for example, assault and battery or trafficking cases, should be disclosed under the public records law, a defendant’s employment is not categorized in a court record. The names the police officers who are the subject of the Brady letter and the docket number for their court case, if any, should remain redacted. With regard to the names and docket numbers of the non-police-officer criminal defendants, I find the Office has not demonstrated how this information does not constitute “chronologically maintained court records of public judicial proceedings” or “published records of public court or administrative proceedings.” With regard to the names and docket numbers of the police officers, where these letters were created as templates after the criminal proceedings in which the police officers were involved, the Office has not demonstrated how this information fits within the definition of CORI. Accordingly, the Office has not met its burden to redact the letters under Exemption (a) and the CORI statute. 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).

Cynthia M. Von Flatern, Esq. SPR22/0392 Page 5 March 1, 2022 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). When analyzing a privacy claim, there is 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: With respect to the second ground supporting redaction, NWDAO maintains that the names of officers who are the subjects of a Brady letter are protected under the personnel/privacy exemption to the Public Records Law. G.L. c. 4, §7, cl. 26 (c). NWDAO is unwilling to release any letter that could invade the privacy of an individual when this Office is not the employer of the individual and not privy to details of any misconduct investigation. NWDAO joins the Plymouth County District Attorney in requesting that the newly established Peace Officer Standards and Training (POST) Commission within the Commonwealth further define what records related to police officer misconduct investigations constitute public records. In spite of the Office’s February 16th response, as with the previous January 24th response, 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.

Cynthia M. Von Flatern, Esq. SPR22/0392 Page 6 March 1, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere