Maggie Mulvihill v. Northwestern District Attorney's Office (SPR 20230280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2023 SPR23/0280 Cynthia 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 Maggie Mulvihill appealing the response of the Northwestern 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 11, 2023, 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 Office responded on January 23, 2023, providing numerous records in redacted form. Unsatisfied with the Office’s response, Ms. Mulvihill 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 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. 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 Von Flatern, Esq. SPR23/0280 Page 2 February 28, 2023 The Office’s Responses In its January 23, 2023 response, the Office explains that it “does not keep a Brady list. However, since August 2019, [the Office] has maintained letters for each police officer for whom there has been documentation of officer misconduct or dishonesty.” While this appeal was pending, the Office provided additional responses to Ms. Mulvihill and this office on February 17, and February 21, 2023. Subsequently, Ms. Mulvihill indicated that she remains unsatisfied with the Office’s responses. In its response, the Office cites Exemption (a), CORI, and Exemption (c) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(a), (c). 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 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

Cynthia Von Flatern, Esq. SPR23/0280 Page 3 February 28, 2023 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 February 21st response, under Exemption (a) and CORI, the Office argues the following: Under the District Attorney’s obligations to provide discovery in Brady v. Maryland, 373 U.S. 83 (1963), all criminal cases of a police officer are disclosed. If a police officer has any offense on his record at all, it is likely to just be one offense. Therefore, disclosure would constitute his entire criminal history and thereby provide the public with more information than it is entitled to under the CORI law, G.L. c. 6, sec. 172 (a)(1)-(6). Under Globe Newspaper Co. v. District Attorney for the Middle Dist., 439 Mass. 374, 375 (2003), it has been held that disclosure of cases involving a particular type of offense or type of defendant does not violate the CORI law. However, release of what would amount to a police officer’s entire criminal history does

Cynthia Von Flatern, Esq. SPR23/0280 Page 4 February 28, 2023 violate the CORI statutes directly or by “necessary implication.” G.L. c. 4, sec. 7, cl. 26(a). Based on its response, the Office has not met its burden to demonstrate how the names and 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). Further, where the responsive 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). 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. 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.

Cynthia Von Flatern, Esq. SPR23/0280 Page 5 February 28, 2023 In its January 23, 2023 response, under Exemption (c), the Office states that “the names of subject police officers and the docket numbers of any criminal or civil case associated with the officers has been redacted in order to protect their privacy.” In its February 17th letter, the Office further argues the following: [O]nly the names of police officers and the docket numbers of any cases for which they were charged were redacted.... This was done in order to protect the privacy of each officer. To date, there has been no published decision to hold that the identities of police officers who are the subject of a Brady letter are public records.... Identification of each officer would not contribute significantly to the public’s knowledge. Withholding the name of officers, and the docket numbers which would disclose their identities, strikes a balance to protect individual officer privacy and the public’s right to understand the nature of police misconduct and how disclosure of potential exculpatory evidence is essential to a fair system of prosecution. 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). In this case, 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 or docket numbers pursuant to Exemption (c). Conclusion Accordingly, the Office is ordered to provide Ms. Mulvihill with a response to her 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, Manza Arthur Supervisor of Records cc: Maggie Mulvihill