Maggie Mulvihill v. Bristol County District Attorney's Office (SPR 20230777)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 4, 2023 SPR23/0777 Courtney Almeida, Esq. Assistant District Attorney Records Access Officer Bristol County District Attorney’s Office 218 South Main Street Fall River, MA 02721 Dear Attorney Almeida: I have received the petition of Professor Maggie Mulvihill appealing the response of the Bristol County 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, Professor Mulvihill requested the following: Pursuant to Brady v. Maryland (1963), 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 February 9, 2023 providing various records in redacted form. Unsatisfied with the Office’s response, Professor 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). 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. SPR23/0777 Page 2 May 4, 2023 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 February 9th Response In its February 9, 2023 response, the Office notes that “there is no responsive record for the request for a Brady list.” However, the Office provides “twelve pdf documents consisting of 182 redacted pages of Brady disclosure materials that have been made public.” The Office cites Exemptions (a), (c), and (f) of the Public Records Law for redacting responsive records. See G. L. c. 4, § 7(26)(a), (c), (f). Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its February 9th response, the Office indicates that criminal prosecutions are currently pending in Fall River Superior Court for Michael Pessoa, and in Fall River District Court for “one other known but unnamed police officer with pending prosecutions.” In light of the pending criminal matters, I decline to opine on the Office’s claims, based on Exemption (f) and an impoundment order, concerning records involved in these two pending criminal matters at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of these criminal prosecutions could impact the applicability of 950 C.M.R. 32.08(2)(b). 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).

Courtney Almeida, Esq. SPR23/0777 Page 3 May 4, 2023 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. G. L. c. 214, § 1B, The Privacy Statute In its February 9th 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. 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

Courtney Almeida, Esq. SPR23/0777 Page 4 May 4, 2023 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). Under CORI, the Office also argues that “one record, labeled ‘2-2-2021 New Bedford’ has been redacted, consistently with CORI, to protect the identities of criminal defendants who sought Brady information.” Upon review, it appears that the Office is referring to a Memorandum and Order on Defendant’s Motion for Production of Records, issued by a Justice of the Superior Court on February 2, 2021. It is unclear how such a memorandum would not constitute “chronologically maintained court records of public judicial proceedings,” and accordingly it is unclear how such a record could be redacted pursuant to CORI. The Office must clarify this. Juvenile Delinquency Records In its response, the Office cites G. L. c. 6, § 178, which provides in pertinent part: An individual or entity who knowingly requests, obtains or attempts to obtain juvenile delinquency records from the department under false pretenses,

Courtney Almeida, Esq. SPR23/0777 Page 5 May 4, 2023 knowingly communicates or seeks to communicate juvenile criminal records to any other individual or entity except in accordance with the provisions of sections 168 through 175, or knowingly falsifies juvenile criminal records, shall for each offense be punished by imprisonment in a jail or house of correction for not more than 1 year or by a fine of not more than $7,500, or by both such fine and imprisonment, and in the case of an entity that is not a natural person, the amount of the fine may not be more than $75,000 for each violation. G. L. c. 6, § 178. Under § 178, the Office explains that “one record, labeled ‘8-24-2021 Fall River’ relates, in part, to an investigation into a juvenile matter,” and further argues that “all references to juvenile reports have been redacted from that document.” Where references to juvenile reports constitute the type of record contemplated under G. L. c. 6, § 178, I find that the Office may properly redact such information. 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.

Courtney Almeida, Esq. SPR23/0777 Page 6 May 4, 2023 Under Exemption (c), the Office indicates it is withholding the names of “exonerated officers” as well as “the identity of the officers, named within the Brady records.” As to the exonerated officers, the Office argues that “exonerations indicate that the officers have done nothing wrong and have not committed misconduct. Th[e] office declines to provide the names of officers who were exonerated, as if their actions constituted misconduct.” As to the officers named in the Brady records, the Office argues that “the redacted records demonstrate the various types of Brady materials and how this office addresses such matters, without undermining the personal privacy interests of any individuals.” Based on its response, I find that 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 pursuant to Exemption (c). 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. Att’y 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 289-90. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979); 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. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial

Courtney Almeida, Esq. SPR23/0777 Page 7 May 4, 2023 Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. Under Exemption (f), the Office argues that “Public disclosure of the identity of persons and businesses that have been victimized would chill persons with such information from cooperating with law enforcement in the future. The redactions within the attached records have been applied to the identifying information of individuals or businesses, that are permissible to protect individual privacy rights.” Where the Office has redacted the names and identifying information of victims and voluntary witnesses, I find the Office may properly redact such information under Exemption (f). Conclusion Accordingly, the Office is ordered to provide Professor 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: Professor Maggie Mulvihill