Colman Herman v. Suffolk County District Attorney's Office (SPR 20240124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR24/0124 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 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); SPR23/2737 Determination of the Supervisor of Records (November 27, 2023); and SPR23/2979 Determination of the Supervisor of Records (December 26, 2023). In the December 26th determination, I ordered the Office to clarify its claims under Exemptions (a) and (f) of the Public Records Law. The Office provided a response on January 12, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/0124, 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

Andrew Doherty, Esq. SPR24/0124 Page 2 January 29, 2024 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. 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 January 12th response In its January 12, 2024 response, the Office provides additional information in support of its redactions and withholding of the responsive records under Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (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.

Andrew Doherty, Esq. SPR24/0124 Page 3 January 29, 2024 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.” 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. Citing Exemption (a), the Office states the following: Although there may be some public interest in disclosure of the name of an individual charged with a crime, the Massachusetts Legislature has increasingly recognized the societal and personal cost of such information being available to the public. For the most recent example: in 2018, the Legislature enacted significant reforms to the sealing statutes (G.L. c. 276, §§ 100A-100C) which made it easier, and in many cases automatic, for a defendant to shield their criminal record from the public view. At the same time, the Legislature created a method by which certain criminal records could be entirely expunged (G.L. c. 276, §§ 100F-100K). The public disclosure of a criminal defendant’s name is at odds with this growing area of the law.

Andrew Doherty, Esq. SPR24/0124 Page 4 January 29, 2024 In sum, in light of clear Legislative intent to provide increasingly broad, 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. Exemption (f) Exemption (f) permits the withholding of: 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 the following: I agree with the Secretary that the disclosure of this record would not prejudice an ongoing investigation – the investigation is closed. However, I disagree with the Secretary that Exemption F only protects material from disclosure if disclosure would affect an ongoing investigation. See Rahim v. District Attorney for the Suffolk District, 486 Mass. 544, 552 (2020). Rather, the exemption may be available for “a certain carefully defined class of documents.” Bougas v. Chief of Police, 371 Mass. 59, 65 (1976). Here, I have applied that exemption to a very specific class of document: materials submitted by an attorney representing a defendant, who expressly requested the material be kept confidential, which describe information or other facts about that defendant and the case against him for purposes of resolving the case. Were this class of documents to be available pursuant to a public records request, it would have a significant, and immediate

Andrew Doherty, Esq. SPR24/0124 Page 5 January 29, 2024 chilling effect on a defense attorneys [sic] willingness to share such information. This is directly in line with the spirit and intent behind Worthington v. Scribner, 109 Mass. 487, 488-489 (1872), Attorney Gen. v. Tufts, 239 Mass. 458, 490-491 (1921), and District Attorney v. Flatley, 419 Mass. 507, 510 (1995). Given this, and for the reasons I describe above, I believe the District Attorney has met its burden in withholding this information pursuant to the public records law. In camera inspection In order to facilitate a determination as to the applicability of the Office’s Exemptions (a) and (f) claims to redact and withhold the requested records, the Office must provide this office with an un-redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Andrew Doherty, Esq. SPR24/0124 Page 6 January 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman