Jenna Rocco v. Norfolk County District Attorney's Office (SPR 20240887)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2024 SPR24/0887 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Jenna Rocco appealing the response of the Norfolk 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 December 13, 2023, Ms. Rocco requested copies of every time specific names were mentioned in emails to or from the Office. Previous Appeal and Petition The requested records were the subject of a previous appeal and a petition from the Office. See SPR24/0283 Determination of the Supervisor of Records (February 8, 2024) and SPR24/0600 Determination of the Supervisor of Records (March 4, 2024). In my March 4th determination, I found that an extension of time could not be granted for the Office to provide responsive records. Subsequently, the Office responded on March 15, 2024, providing responsive records in redacted form, and citing Exemptions (a), (c) and (f) of the Public Records Law for redacting the records, and for withholding others. See G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Office’s response, Ms. Rocco further appealed, and this case 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

Brandon P. Hunt, Esq. SPR24/0887 Page 2 April 5, 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 March 15th Response In its March 15, 2024 response, the Office provides numerous records in redacted form, and withholds others, citing Exemptions (a), (c), and (f) of the Public Records Law for withholding and redacting the records See G. L. c. 4, § 7(26)(a), (c), (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.

Brandon P. Hunt, Esq. SPR24/0887 Page 3 April 5, 2024 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. G. L. c. 6, § 167. In its March 15th response, under Exemption (a) and CORI, the Office states that it will “withhold a record containing a wanted bulletin for an individual.” The Office goes on to argue that “the withheld record, a non-publicly disclosed intra-agency wanted bulletin, sent with an explicit notice limiting dissemination to authorized personnel, serves to identify a specific individual, and provides detailed information regarding the nature of criminal charges and arrest information.” Further, the Office argues that “the disclosure of such information would subvert the goals of the CORI act, which is to limit the dissemination of someone’s state-compiled CORI report only to authorized recipients.” 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

Brandon P. Hunt, Esq. SPR24/0887 Page 4 April 5, 2024 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 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). 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 March 15th response, under Exemption (c), the Office argues that “the residential addresses of private individuals, who do not openly publish their address were redacted under Exemption (c).” 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

Brandon P. Hunt, Esq. SPR24/0887 Page 5 April 5, 2024 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its March 15th response, under Exemption (f), the Office argues the following: [R]ecords containing statements provided by witnesses in an active and ongoing investigation were withheld. This investigative matter has been the subject of a Grand Jury indictment and is pending before the Norfolk Superior Court.... These records may include confidential sources and information from witnesses, and safeguarding their confidentiality is vital for ensuring efficient and effective law enforcement practices.... Disclosing any segregable portion of the record would compromise the confidentiality of the sources, as details within witness statements could indirectly reveal the identity of these individuals who have provided information voluntarily.... Furthermore, this record, which contains potential evidence and statements from a witness, if disclosed could amount to a premature disclosure of a piece of Commonwealth’s case prior to trial and “would probably so prejudice the possibility of effective law enforcement.”... Therefore, the investigatory exemption (f) is applicable in withholding sensitive records which may indirectly identify voluntary witnesses and could amount to a premature disclosure of a piece of the Commonwealth’s case prior to trial. Based on the information provided in the Office’s March 22nd response, where the requested records are part of an ongoing investigation and Grand Jury indictment, I find the Office has met its burden to withhold and redact the records, at this time, pursuant to Exemption (f). Please be advised that a change in the status of the investigation could impact the applicability of Exemption (f) to these records. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Rocco is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Brandon P. Hunt, Esq. SPR24/0887 Page 6 April 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jenna Rocco