Maggie Mulvihill v. Attorney General's Office (SPR 20230036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2023 SPR23/0036 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Maggie Mulvihill appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 4, 2022, Ms. Mulvihill requested “… all records related to law enforcement officers or personnel in which issues with their credibility has been raised, including but not limited to so-called ‘Brady lists,’ also known as ‘Lead (Law Enforcement Automatic Discovery) lists’ or ‘Do Not Call’ lists … from Jan. 1, 2017, to present.” The AGO responded on November 21, 2022. Unsatisfied with the response, Ms. Mulvihill petitioned this office and this appeal, SPR23/0036, 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. Attorney 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. 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

Lorraine A.G. Tarrow, Esq. SPR23/0036 Page 2 January 24, 2023 The AGO’s November 21st response In its November 21, 2022 response, the AGO produced ninety-seven (97) pages of records and cited Exemptions (a) and (c) of the Public Records Law in support of the redactions. The AGO asserted, “… a public records request must ‘reasonably describe’ the records being sought so that a custodian ‘can identify and locate [the requested records] promptly.’ See G.L.c. 66, § 10(a)(i) and 950 CMR 32.06(b). Requests that are articulated with very broad language that call upon personnel to interpret the scope of what is sought, and then make fine judgments about what records may or may not be responsive to the request do not meet the statutory standard for ‘reasonableness.’ See Jaideep Chawla v. Dep’t of Revenue, Suffolk. Sup. No. 1784CV02087, (January 23, 2019).” The AGO further asserted, “…your request does not meet the reasonableness standard as it requires us to interpret and ‘make fine judgments’ about the scope and meaning of what is ‘related’ to ‘law enforcement officers or personnel in which issues with their credibility has been raised’ in order to identify particular records that fit the parameters of your request.” 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the AGO cited G. L. c. 6, § 167 in support of certain redactions in the requested records. The AGO explained, “… some of these records were redacted in accordance

Lorraine A.G. Tarrow, Esq. SPR23/0036 Page 3 January 24, 2023 with G.L. c. 4, § 7, cl. 26 insofar as they contain: (a) information specifically or by necessary implication exempted from disclosure by statute, G.L. c. 6, §§ 167, 172 (Criminal Offender Record Information) …” G. L. c. 6, § 167 provides in pertinent part: [R]ecords 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 not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. 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). 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. Sch. 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 Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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

Lorraine A.G. Tarrow, Esq. SPR23/0036 Page 4 January 24, 2023 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. 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. In its response, the AGO opined that the redactions were “… email addresses relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Current appeal In her appeal petition, Ms. Mulvihill states, “[t]he agency denied my request, in part, claiming it was too broad and did not meet the reasonableness standard under the state public records statute. I provided as explicit detail as possible as to the specific records I was requesting.” Although the AGO provided ninety-seven pages with redactions in response to Ms. Mulvihill’s appeal, it is unclear if the AGO possesses any further records responsive to the request. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). I encourage Ms. Mulvihill and the AGO to communicate in order to facilitate producing records efficiently and affordably. Ms. Mulvihill may wish to include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The AGO must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the AGO is to provide Ms. Mulvihill with a response to the request in a manner consistent with the Public Records Law and its Regulations within ten (10) business

Lorraine A.G. Tarrow, Esq. SPR23/0036 Page 5 January 24, 2023 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, Manza Arthur Supervisor of Records cc: Maggie Mulvihill