Andrew Quemere v. Middlesex District Attorney's Office (SPR 20232635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2023 SPR23/2635 Daniel DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Andrew Quemere appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On December 6, 2022, Mr. Quemere requested the complete case file for a named individual. Prior Appeals and In camera Review The requested records were the subject of prior appeals and a subsequent in camera review. See SPR22/2914 Determination of the Supervisor of Records (January 6, 2022), SPR23/0527 Determination of the Supervisor of Records (April 3, 2023), and SPR23/0905 Determinations of the Supervisor of Records (May 17, 2023; October 11, 2023). In my October 11th determination, I found that the Office did not meet its burden to withhold all the responsive records under Exemption (a) of the Public Records Law. On November 1, 2023, the Office provided a further response and indicated that it was withholding responsive records pursuant to Exemptions (a) and (c) of the Public Records Law, the attorney-client privilege, and work product doctrine. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR23/2635, 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

Daniel DeBlander, Esq. SPR23/2635 Page 2 November 22, 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(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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Office’s November 1st response In its November 1, 2023 response, the Office cited the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law, to withhold responsive records. The Office also cited Exemption (c), the attorney-client privilege and work product doctrine to withhold the responsive records. 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, 3 77 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. Under Exemption (a), the Office stated the following: Our criminal case file for this matter was compiled in the course of a criminal

Daniel DeBlander, Esq. SPR23/2635 Page 3 November 22, 2023 prosecution in a criminal case that was not dismissed prior to arraignment. Therefore it is quite clear how such records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” G.L. c. 6, § 167. This Office continues to understand your request to implicate CORI as it is a request for a specifically identified individual’s criminal history and case file. While we understand the public interest in better understanding high profile cases of this nature, we are also cognizant that Massachusetts law makes it a criminal offense punishable by imprisonment for not more than 1 year or by a fine of not more than $5,000 or both to “knowingly communicate or attempt to communicate criminal offender record information” to individuals except in accordance with M.G.L. c. 6, §§ 168- 175. Moreover, it is not possible to comply with CORI law simply by redacting the specifically identified individual’s name or other identifying information from the responsive records. Because your request is explicitly for a named individual’s case file, that individual is still identifiable from the language of your request even where the records have been redacted. See 803 C.M.R. 2.03(5) (“Regardless of whether an individual is identified by name, an individual may be identifiable… if the person is identifiable in some other manner.”). Absent further clarification concerning the statutory scheme governing public dissemination of CORI, we continue to understand ourselves to be barred from disclosing records in response to such a request. Criminal Offender Record Information (CORI) The current definition of 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 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

Daniel DeBlander, Esq. SPR23/2635 Page 4 November 22, 2023 department, information relating to such criminal offense shall be criminal offender record information. . . . G. L. c. 6, § 167. Based upon the Office’s response, I find that while portions of the requested records may fall within the definition of CORI, the Office has not met its burden to show that all the records fall within the CORI Act. Specifically, the Office has not demonstrated that all of the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Therefore, the Office may not withhold the records in their entirety pursuant to Exemption (a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 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). 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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).

Daniel DeBlander, Esq. SPR23/2635 Page 5 November 22, 2023 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. Regarding Exemption (c), the Office stated, “[w]e further retain medical records concerning specifically identifiable individuals which are exempt from disclosure under exemption (c) (privacy and medical). G.L. c. 4, § 7(26)(c).” To the extent the records contain medical information of a specifically named individual, the Office may permissibly withhold such portions from disclosure under Exemption (c). Common Law Attorney-client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege, the office indicates, “[o]ur criminal case file for this matter contains records subject to other exemptions. Specifically, our case file includes communications, attorney notes and memoranda of law subject to the attorney-client privilege as well as the work product doctrine. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007); G.L. c. 4, § 7(26)(d); DaRosa v. City of New Bedford et al, 471 Mass. 446 (2015).” Based on the Office’s response, I find the Office did not meet its burden to withhold records under the attorney-client privilege. Specifically, the Office did not explain how the records are confidential communications received during the course of the client’s search for legal advice, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. In

Daniel DeBlander, Esq. SPR23/2635 Page 6 November 22, 2023 addition, the Office has not provided a detailed description of the records in compliance with G. L. c. 66, § 10A(a). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Id. at 460. Work Product Doctrine The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Based on the Office’s response, although it states that the “. . . case file includes communications, attorney notes and memoranda of law subject to the . . . work product doctrine[,]” the Office has not established how the withheld documents, in their entirety, constitute work product that may be withheld as contemplated in DaRosa. The Office is advised, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Office is ordered to review the records, redact where necessary and provide Mr. Quemere with the responsive records, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere