Richard J. Shea v. Bristol County District Attorney's Office (SPR 20230766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 4, 2023 SPR23/0766 Courtney Almeida, Esq. Assistant District Attorney Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Almeida: I have received the petition of Richard J. Shea, Esq. appealing the response of the Bristol County District Attorney’s Office (Office) to a request to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 24, 2023, Attorney Shea requested grand jury minutes, police reports and witness statements regarding a specifically identified matter. Prior Appeal This request was the subject of a previous appeal. See SPR23/0499 Determination of the Supervisor of Records (March 27, 2023 and April 20, 2023)). The Office responded on March 24, 2023. Unsatisfied with the response, Attorney Shea petitioned this office and this appeal, SPR23/0766, 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(d)(iv) (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…”); 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 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. SPR23/0766 Page 2 May 4, 2023 burden of establishing the applicability of an exemption). 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 24h Response In its March 24, 2023 response, the Office claimed Exemptions (a) and (f) to withhold the requested records in their entirety. 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. CORI In its response, the Office cited the Criminal Offender Record Information (CORI) Act in support of the redactions. 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

Courtney Almeida, Esq. SPR23/0766 Page 3 May 4, 2023 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. In its response, the Office states, “...this office maintains that this police report is exempt from public dissemination pursuant to CORI. Specifically, the police report contains information which concerns an identifiable individual and the nature of the criminal charge as well as the arrest.” Based on the foregoing, I find the Office has not met its burden to demonstrate how the police report is exempt under the CORI Act. Specifically, it is unclear how these records contain “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167. G. L. c. 214, § 1B, The Privacy Statute In its response, the Office cites G. L. c. 214, § 1B, known as the Privacy Statute, which provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this statute does not allow for the withholding of the requested records.

Courtney Almeida, Esq. SPR23/0766 Page 4 May 4, 2023 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-290. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the Office asserts, “[a]lthough the office concedes that twenty-seven years have passed, the office maintains that releasing witness statements of any kind would inhibit present day cooperation of witnesses with police investigations. There is no time restrictions on the application of exemption (f). Therefore, the office maintains that witnesses’ statements are exempt from disclosure pursuant to exemption (f). G.L. c. 4, § 7, cl. 26(f) (protection of confidentiality for witnesses to preserve future investigatory techniques). See also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983) (explanation of ‘identifying details’ and ‘grave risk of indirect identification’ of witnesses).”

Courtney Almeida, Esq. SPR23/0766 Page 5 May 4, 2023 Upon review, the Office does not describe how the type of witness statements would reveal confidential investigative techniques that are unique to the Department nor how the release of the witness statements would interfere with present day cooperation of witnesses. It is also uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Further, it is unclear why the Department cannot redact where necessary to preserve confidentiality and provide the remaining portions of the record. See Antell, 52 Mass. App. Ct. at 248. The Office referenced Exemption (c) privacy in connection with G. L. c. 214, § 1B, but did not include an Exemption (c) basis for withholding the requested records. Therefore, the Office has not met its burden to withhold the requested records in their entirety under Exemption (c). As a result, I find that the Office did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Office is ordered to provide Attorney Shea with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Shea may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Richard J. Shea, Esq.