Colman Herman v. Suffolk County District Attorney's Office (SPR 20232979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 26, 2023 SPR23/2979 Andrew Doherty, Esq. Assistant District Attorney Deputy Chief Legal Counsel – Ethics and Compliance Office of Suffolk County District Attorney One Bulfinch Place Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Colman M. Herman 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 September 11, 2023, Mr. Herman requested “…all communications related to [an identified] gun case.” Previous appeals This request was the subject of previous appeals. See SPR23/2494 Determination of the Supervisor of Records (November 2, 2023) and SPR23/2737 Determination of the Supervisor of Records (November 27, 2023). In the November 27th determination, I ordered the Office to clarify its claims under Exemptions (a), (c), (d) and (f) of the Public Records Law. The Office provided a response on December 11, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/2979, 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. SPR23/2979 Page 2 December 26, 2023 Attorney 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 December 11th response In its December 11, 2023 response, the Office provides additional information in support of its redactions and withholding of the responsive records under Exemptions (a), (d), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (d), (f). 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, 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 cites the Criminal Offender Record Information (“CORI”) Act to redact “the defendant’s name and personal identifying information from all records.” The Office states that “in light of clear Legislative intent to provide increasingly broad,

Andrew Doherty, Esq. SPR23/2979 Page 3 December 26, 2023 powerful, and accessible means by which a criminal record may be rendered private, and given that this criminal record will, in all likelihood, eventually be sealed from the public view, the defendant’s name is exempt from disclosure by necessary implication of CORI and the sealing statutes.” Criminal Offender Record Information 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. G. L. c. 6, § 167. The Office has not met its burden of specificity in claiming Exemption (a) to redact the requested records. Based on the Office’s response, it is unclear how the records fall within the type of records contemplated under the CORI Act. The Office merely cites the statute without any further explanation as to its applicability to the responsive records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Andrew Doherty, Esq. SPR23/2979 Page 4 December 26, 2023 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of 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). Id. 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 Office cites Exemption (d) to redact two responsive records, as well as to withhold “[a] three page Memorandum authored by the ADA describing his analysis of the case and his thoughts, impressions, and opinions regarding the case.” The Office states that “all the material that [it] [has] withheld or redacted as attorney work product is opinion work product in that it reflects an attorney’s thoughts, opinions, and impressions of evidence and the law in anticipation of litigation related to a criminal case.” Where the Office has stated that the withheld information contains opinion work product prepared by an attorney in anticipation of litigation, I find that the Office has met its burden to redact the two responsive records, as well as to withhold the memorandum authored by the ADA under Exemption (d). Exemption (f) Exemption (f) permits the withholding of:

Andrew Doherty, Esq. SPR23/2979 Page 5 December 26, 2023 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 289-290. The Office cites Exemption (f) in order to withhold a 40-page letter “described as a ‘Confidential Request for Breakdown.’” The Office states that “where the information provided was private and personal, where the material was shared with our office to aid our office in law enforcement, and where the public disclosure of this material would have a significant chilling effect on a defense attorney’s willingness to share private and personal information about a defendant in the future, I continue to stand by my position that this material is exempt from disclosure pursuant to exemption (f) of the public records law.” Based on the Office’s response, it is unclear how the record, in its entirety, can be withheld under Exemption (f). It is not clear from the Office’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. 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). Consequently, the Office did not meet its burden of specificity in claiming Exemption (f) to withhold the letter from disclosure. Conclusion Accordingly, the Office is ordered to provide Mr. Herman 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.

Andrew Doherty, Esq. SPR23/2979 Page 6 December 26, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman