Kevin Rothstein v. Essex County District Attorney's Office (SPR 20233075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 8, 2024 SPR23/3075 David O’Sullivan, Esq. Assistant District Attorney Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney O’Sullivan: I have received the petition of Kevin Rothstein, of WCVBTV Chanel 5 Boston, appealing the response of the Essex 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 November 27, 2023, Mr. Rothstein requested “[a]ll documents, photographs, video files or other records associated with the investigation into [an identified individual], for a 2007 human trafficking related charges (district court docket number ...)” The Office responded on December 12, 2023. Unsatisfied with the response, Mr. Rothstein petitioned this office and this appeal, SPR23/3075, 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(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). 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

David O’Sullivan, Esq. SPR23/3075 Page 2 January 8, 2024 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 12th Response In the Office’s December 12, 2023 response, the Office stated that, “... the case was dismissed in District Court for purposes of indictment in Superior Court. Attached are the indictments and the plea colloquy transcript, which disclose the facts of conviction in Superior Court, a disposition sheet.” The Office cited Exemption (a) of the Public Records Law to withhold certain 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, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the Office cited G. L. c. 41, § 97D which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their

David O’Sullivan, Esq. SPR23/3075 Page 3 January 8, 2024 confidentiality… G. L. c. 41, § 97D. In its response, the Office cited G. L. c. 265 § 24C, which provides in pertinent part: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13B1/2, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be deemed to be a public record under the provisions of section seven of chapter four. G. L. c. 265 § 24C. In its response the Office asserted, “[r]eports, or videos or photographs of the human trafficking victims are withheld pursuant to G.L. c. 4 s. 7 cl. 26(a) and G.L. c. 41 s. 97D and G.L. c. 265 s. 24C.” Based upon the Office’s response, it is unclear how all the requested records are restricted under G. L. c. 41, § 97D, and G. L. c. 265 § 24C as it operates through Exemption (a). The Office must clarify. Further, based on the Office’s response, it is unclear what type of records it possesses that it is withholding from disclosure. 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 . . .”). Therefore, the Office must identify the type of record(s) it has in its possession that it withheld under Exemption (a). Conclusion Accordingly, the Office is ordered to provide Mr. Rothstein 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. Rothstein may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

David O’Sullivan, Esq. SPR23/3075 Page 4 January 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kevin Rothstein