Michael Damiano v. Bristol County District Attorney's Office (SPR 20230312)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2023 SPR23/0312 Courtney Almeida, Esq. Assistant District Attorney Records Access Officer Bristol District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Almeida: I have received the petition of Michael Damiano, of the Boston Globe, 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 18, 2023, Mr. Damiano requested “all records related to [a specific] investigation and related correspondence [and] all records related to correspondence with Middlesex School or agents thereof from 2019 to present.” On January 25, 2023, Mr. Damiano requested “all communications, including but not limited to emails or letters, received by the Bristol County District Attorney’s Office from the Boy Scouts of America, or any agent or affiliate of the Boy Scouts of America, in 2018 or 2019.” The Office responded to both requests in a single letter on January 26, 2023, denying the requests. Unsatisfied with the Office’s response, Mr. Damiano 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 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

Courtney Almeida, Esq. SPR23/0312 Page 2 March 3, 2023 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 January 26th Response In its January 26, 2023 response, the Office states that it is withholding responsive records pursuant to G. L. c. 265, § 24C. See G. L. c. 4, § 7(26)(a); G. L. c. 265, § 24C. 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. In its January 26th response, the Office cites G. L. c. 265, § 24C, which provides in pertinent part: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13B ½, 13B ¾, twenty-two, twenty-two A, 22B,

Courtney Almeida, Esq. SPR23/0312 Page 3 March 3, 2023 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be deemed to be a public record under the provisions of section seven of chapter four. G. L. c. 265, § 24C. In its January 26th response, the Office argues that the “request contains the name of a victim whose identifying information is protected from disclosure by statute. G.L. c. 265, § 24C. No records associated with the name of a victim protected under section 24C can be provided publicly.” Based on the Office’s response, to the extent that the records contain the names and identifying information of a victim, the Office may permissibly withhold such portions from disclosure. However, it is unclear how the records, in their entirety, may be withheld under Exemption (a) and G. L. c. 265, § 24C. The Office must explain whether the records can be redacted in order to protect the name and identifying information of the victim, so that segregable portions of the records can be provided to the requestor. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, it is unclear from the Office’s response which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a) and the statute cited above. 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”). Conclusion Accordingly, the Office is ordered to provide Mr. Damiano 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.

Courtney Almeida, Esq. SPR23/0312 Page 4 March 3, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Michael Damiano