Peter Eisler v. Suffolk County District Attorney's Office (SPR 20232766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2023 SPR23/2766 Andrew Doherty, Esq. Assistant District Attorney Deputy Chief Legal Counsel Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Peter Eisler, of Enterprise/Investigations Reuters, appealing the response of the Suffolk County 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 September 25, 2023, Mr. Eisler requested “... copies of the personal writings of [an identified individual] that were recovered as part of the investigation into his role in the shooting of two people on June 26, 2021 [including] ... any and all of his writings that might be characterized as politically extreme ... or any other writings related to ideologies or inspirations that may have motivated his violent rampage.” On September 25, 2023, Mr. Eisler modified his request to include, “...any documents, reports or other records that capture, examine or discuss ... on-line activity, particularly any posts or visits to sites that traffic in extremist thought ...” Prior Appeal This request was the subject of a previous appeal. See SPR23/2622 Determination of the Supervisor of Records (November 14, 2023). In my November 14th determination, I learned that the Office provided a further response to Mr. Eisler on November 10, 2023. Unsatisfied with the prior response dated October 24, 2023 and the November 10, 2023 response, Mr. Eisler petitioned this office and this appeal, SPR23/2766, 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 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. SPR23/2766 Page 2 November 29, 2023 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 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 October 24th and November 10th Responses In the Office’s October 24, 2023 response, the Office stated, “. . . attached is a copy of a 30 page.pdf document that was created as a part of the investigation. This document includes 22 pages of personal notes of [the named individual] that investigators noted as being relevant to the investigation and would be responsive to your request for ‘writings that might be characterized as politically extreme’.” The Office cited Exemption (c) in support of the redactions to the requested documents. In the Office’s November 10, 2023 response, the Office stated that the records contain “[n]o more than 366 digital photographs of what appear to be individual pages of personal notebooks, diaries, and journals apparently written by [a named individual].” The Office further stated that it “... redacted the 22 pages of personal notes from our production of these materials, and ... did not produce any of the digital photographs. The District Attorney’s Office does not believe that the public interest in disclosure of this material outweighs the significant and compelling privacy interests in these highly private, and highly personal, writings. Exemption (c) Exemption (c) permits the withholding of: 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

Andrew Doherty, Esq. SPR23/2766 Page 3 November 29, 2023 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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 October 24, 2023 response, the Office asserted, “...the public disclosure of these materials would constitute an unwarranted invasion of personal privacy. The redacted material is best described as diary or personal journal entries, and the public interest in the disclosure of these highly personal documents does not that outweigh the significant privacy interest associated by disclosure. See Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979).” Current appeal In his appeal, Mr. Eisler states, “[w]e hereby appeal this decision based on the compelling public interest in better understanding [the named individual’s] motivations in these killings and how he came to be radicalized to the point where he would kill in the name of his extremist political ideology. This public interest vastly outweighs any lingering privacy interests on the part of [the named individual] a murderer of innocent people who is now deceased. While we recognize that discrete segments of the journals may need to be redacted to protect the privacy of [the name individual’s] friends and family, we believe the public has a vital interest in understanding how [the named individual] was radicalized and the forces that influenced his decision to commit murder.” Although, the Office indicates that the records constitute private information, it is unclear what information was redacted from the records nor how the redacted portions contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available

Andrew Doherty, Esq. SPR23/2766 Page 4 November 29, 2023 from other sources. PETA, 477 Mass. at 292. Further, the Office did not provide sufficient information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Consequently, the Office did not meet its burden responding to this records request. Conclusion Accordingly, the Office is ordered to provide Mr. Eisler with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Mr. Eisler 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: Peter Eisler