Andrew Quemere v. Northwestern District Attorney's Office (SPR 20220696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2022 SPR22/0696 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 Appeals This request was the subject of previous appeals. See SPR21/0176 Supervisor of Records Determination (February 3, 2022); SPR22/0392 Supervisor of Records Determination (March 1, 2022). In my March 1st determination, I ordered the Office to clarify its Exemption (a) and (c) claims for redacting the responsive records. Subsequently, the Office responded on March 14, 2022. Unsatisfied with the Office’s response, Mr. Quemere appealed, and this case was opened 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. SPR22/0696 Page 2 April 6, 2022 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 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 March 14th Response In its March 14, 2022 response, the Office states that it is withholding docket numbers under Exemption (a), and withholding the names of police officers who are the subjects of Brady letters under Exemption (c) of the Public Records Law. 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. SPR22/0696 Page 3 April 6, 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. SPR22/0696 Page 4 April 6, 2022 G. L. c. 6, § 172(m). Under Exemption (a) and CORI, the Office argues that “once the requestor has the criminal docket number, he would know the identities of each of the criminal defendants who happen to have or have had a case in which a police officer with a Brady letter on file with NWDAO was a witness in the criminal case.” The Office goes on to argue that “NWDAO continues to believe that this amounts to a release of CORI under Globe Newspaper v. District Attorney for the Middle Dist., 439 Mass. 374, 384 (1995) and that the information is therefore exempt from the definition of public records under G.L. c. 4, § 7, cl. 26 (a).” The Office also argues the following: As with the cases of criminal defendants who have received Brady letters, correlation of the docket number with specific officers is information known only by NWDAO. It is not a court record. Contrast Globe Newspaper Co. v. District Attorney for the Middle Dist. ... (docket numbers for public corruption crimes can be determined by search of court records). Based on the Office’s March 14th response, as with the Office’s previous responses, I find the Office has not met its burden to demonstrate how the requested docket numbers may be redacted pursuant to Exemption (a) and CORI. See G. L. c. 6, § 172(m); see also Globe Newspaper Co. v. Dist. Att’y for the Middle Dist., 439 Mass. 374, 385 (2003) (“docket numbers are assigned chronologically and maintained by courts as part of their court records, criminal proceedings against adult defendants are public proceedings, and docket number information thus falls squarely within the second listed exception to the CORI statute”); see also Att’y Gen. ------------ v. Dist. Att’y for the Plymouth Dist., 484 Mass. 260 (2020). 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.

Cynthia M. Von Flatern, Esq. SPR22/0696 Page 5 April 6, 2022 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: NWDAO must continue to withhold disclosure of the names of police officers who are the subjects of Brady letters in NWDAO’s custody. It is well-settled that disciplinary documentation constitutes a personnel record under G.L. c. 4, § 7, cl. 26 (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). There is a policy reason for this: The encouragement of people, including the employee, to speak freely with those investigating the misconduct. Id. at 802. The Office goes on to argue that “the Legislature has not defined police officer misconduct investigation” and provides the following information concerning the PETA balancing test: The reputation and livelihood of a police officer, as for any employee, is critically important to that employee. Release of information that should remain private will jeopardize an employee’s reputation, privacy, career, and life. In exercising the balancing required under Exception (c) of a person’s privacy interest and the public’s right to know, NWDAO believes that the privacy interest outweighs the public’s right to know. This is particularly true in this case where 191 letters have been provided and, more importantly, the substance of the misconduct is contained within the letter. Finally, the Office argues that “after the 2020 amendment, the statute’s specific language is that ‘this subclause shall not apply to records related to a law enforcement misconduct investigation.’ G.L. c. 4, § 7, cl. 26 (c). It may be that this phrase does not refer to personnel or medical files which have long been held exempt from the definition of public records but only applies to the second “subclause” within exemption (c).” Please note that the updated language of Exemption (c) indicates that Exemption (c) “shall not apply to records related to a law enforcement misconduct investigation.” G. L. c. 4, § 7(26)(c). As with the Office’s previous responses, I find the Office has not met its burden to redact the names of police officers subject to Brady letters pursuant to Exemption (c).

Cynthia M. Von Flatern, Esq. SPR22/0696 Page 6 April 6, 2022 Conclusion Accordingly, the Office is ordered to review the records, redact where necessary and provide the responsive records to Mr. Quemere, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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