Andrew Quemere v. Suffolk County District Attorney's Office (SPR 20232636)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2023 SPR23/2636 Andrew Doherty, Esq. Assistant District Attorney Deputy Chief Legal Counsel – Ethics and Compliance Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Andrew Quemere appealing the response of the Suffolk County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 25, 2023, Mr. Quemere requested the following records concerning a named defendant: 1. [The defendant’s] motion for a new trial 2. The report by ... an expert witness who testified on [the defendant’s] behalf in an evidentiary hearing 3. The Commonwealth’s response to [the defendant’s] motion for a new trial 4. All expert reports prepared on behalf of the Commonwealth in response to [the defendant’s] motion for a new trial 5. The judge’s decision ordering an evidentiary hearing 6. All transcripts from the evidentiary hearing 7. The judge’s decision on the motion for a new trial[.] Previous Appeal This request was the subject of a previous appeal. See SPR23/1906 Determination of the Supervisor of Records (August 31, 2023). In my August 31st determination, I ordered the Office to provide Mr. Quemere with a supplemental response to his request. Subsequently, the Office responded on September 13, 2023, citing Exemption (c) of the Public Records Law for redacting responsive records. Unsatisfied with the Office’s response, Mr. Quemere appealed, and this case was opened as a result. 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

Andrew Doherty, Esq. SPR23/2636 Page 2 November 16, 2023 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. Current Appeal In his appeal petition, Mr. Quemere contends that: [T]he Suffolk County District Attorney’s Office provided several responsive records that are replete with redactions under exemption (c). The redactions appear to include, among other things, the name of the defendants even though it is already known to [Mr. Quemere] and was specified in [his] request. All of the responsive records are public court records. It is unclear how information contained in public court records could be exempt from disclosure under any exemption, let alone exemption (c). The office does not explain with specificity how the exemption applies to any of the responsive records. The Office’s September 13th Response In its September 13, 2023 response, the Office cites Exemption (c) of the Public Records Law for redacting the responsive case file. See G. L. c. 4, § 7(26)(c). Additionally, the Office refers back to previous responses where it argues that “the personal identifying information of defendants, including their names, may be properly withheld as an unwarranted invasion of privacy pursuant to exemption (c). This information is also subject to exemption as a necessary implication of the CORI laws under exemption (a).” See G. L. c. 4, § 7(26)(a). 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

Andrew Doherty, Esq. SPR23/2636 Page 3 November 16, 2023 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. 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 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.

Andrew Doherty, Esq. SPR23/2636 Page 4 November 16, 2023 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 Exemption (a) and CORI, the Office argues that the redacted information is “subject to exemption as a necessary implication of the CORI laws under exemption (a).” Based on the Office’s response, it is unclear how the redacted information constitutes CORI. The Office must clarify this. 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 may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. 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

Andrew Doherty, Esq. SPR23/2636 Page 5 November 16, 2023 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. In its September 13th response, the Office argues that “[w]ith respect to the portion of the appeal that relates to [the] redaction of material pursuant to exemption (c) ... the exemption applies, even though [Mr. Quemere] may have personal knowledge of the redacted material and that the court documents [the Office has] provided are available to the public at the Suffolk Superior Court.” The Office further argues that “this position is well supported by appellate decisions such as Boston Globe Media Partners, LLC v. DCJIS, 484 Mass. 279 (2020).” Previously, in an August 31, 2023 email, the Office argues that “[w]ith respect to [the] redaction of a defendant’s name ... the personal identifying information of defendants, including their names, may be properly withheld as an unwarranted invasion of privacy pursuant to exemption (c).” The Office also argues that it does “not believe that Mr. Quemere’s knowledge of the defendant’s name is a relevant factor to this matter. To the extent that Mr. Quemere could go to the courthouse and obtain these records without redaction, [the Office does] not believe that is relevant to whether this information may be withheld pursuant to CORI, exemption (a), and exemption (c).” Based on the Office’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Quemere 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.

Andrew Doherty, Esq. SPR23/2636 Page 6 November 16, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere