James Chester v. Suffolk County District Attorney's Office (SPR 20240902)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2024 SPR24/0902 Andrew Doherty, Esq. Deputy Chief Legal Counsel Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Attorney Doherty: I have received the petition of James Chester 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 August 28, 2023, Mr. Chester requested: [1.] Server access logs of any individual who viewed the file or attempted to view the file containing records within the office that bear any pertinence to [an identified individual] at any time, in any year; [2.] All public documents (including notes), emails (including attachments and chained emails), phone records, text messages, and encrypted messages of all below specified individuals whose public records contain certain keywords and phrases, identified in your letter, after October 30, 2020 and before December 30, 2021; [3.] A scheduled opportunity to view in-person ... [a]ll records kept by the Office that have any pertinence to [an identified individual]; [4.] The names and contact information for all individuals outside the office who did a records request for the investigative file on [an identified individual] or the Charlestown Boys Club or were otherwise given access to the file, legally or illegally. Please limit your search to the following [identified] officials [and] [identified], keywords, and key phrases. On September 28, 2023, Mr. Chester modified his initial request, seeking: [1] All public documents (including notes), emails (including attachments and chained emails), phone records, text messages, and encrypted messages of all 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. SPR24/0902 Page 2 April 9, 2024 below-specified individuals whose public records contain the below-listed keywords and phrases after October 30, 2020 and before December 30, 2021; [2] [A]ll records (including recorded interviews) kept by the Office that have any pertinence to [an identified individual] who is . . . the person named as the victim and the subject of the investigation conducted by the Office; [and] [3] [T]he names and contact information for all individuals outside the Office who did a Records Request for the investigative file on [an identified individual] or the Charlestown Boys Club or were otherwise given access to the file, legally or illegally. Please limit your search to the following [identified] officials [and] [identified], keywords, and key phrases. The Office provided a response on January 12, 2024. Unsatisfied with the Office’s response, Mr. Chester petitioned this office and this appeal, SPR24/0902, was opened as a result. Subsequently, on April 5, 2024, the Office provided a supplemental response. On April 8, 2024, Mr. Chester also appealed the April 5th response. 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. See 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, with respect to Item 2 of the modified request, the Office offered to produce Mr. Chester’s own recorded interview but withheld recorded interviews of other individuals. With respect to Item 3 of the modified request, the Office asserted, “the [O]ffice has no

Andrew Doherty, Esq. SPR24/0902 Page 3 April 9, 2024 records indicating that any individual or entity requested any such investigative file, and no information indicating that anyone in this office provided any person outside of the law enforcement team with any access to the file.” With respect to Item 1 of the modified request, the Office provided a series of emails and stated that the emails were redacted pursuant to Exemption (c) of the Public Records Law, and Exemption (d) of the Public Records Law regarding “attorney opinion work product and attorney fact work product.” Additionally, redactions within the records produced were labeled as exempt under Exemption (a) of the Public Records Law, citing both G. L. c. 41, § 97D and G. L. c. 6, § 167. In its April 5, 2024 response, the Office explained its public records request record production process and differences alleged by Mr. Chester. Current Appeal In his appeal, Mr. Chester stated that he believes his request was “partially denied … [and asks] for a review of [the] production ... for any undeclared denials.” Further Mr. Chester states “I ask that you concentrate your review on emails by [an identified individual] of the Boston Police Department, with the time frame and keywords specified in my request, to determine if any records were denied without a declaration….” Further, Mr. Chester asks the Office to “explain the discrepancy between the number of emails [initially produced by named individual and subsequently reviewed [by] a named individual.]” Finally, Mr. Chester “ask[s] that all communications, not just emails, as specified in [the request], be produced.” In response to the Office’s April 5, 2024 supplemental response, Mr. Chester stated “[a]s for your redactions, kindly indicate your modifications and cite the respective rule of exemption or lack thereof …. Please note... [this response] has no bearing whatsoever on my appeal for your production on January 12 that omitted letters and interviews, none of which were declared.” 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).

Andrew Doherty, Esq. SPR24/0902 Page 4 April 9, 2024 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 confidentiality…. G. L. c. 41, § 97D. 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

Andrew Doherty, Esq. SPR24/0902 Page 5 April 9, 2024 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 written response, the Office did not cite Exemption (a) with respect to redactions made under either G. L. c. 41, § 97D or G. L. c. 6, § 167. Further, the Office did not provide explanation regarding the applicability of these statutes to the respective redactions. Finally, some redactions in the Office’s records production were not labeled with an exemption or statute. The Office’s response did not contain the specificity required in a denial of access to public records. The Office redacted portions of the records without claiming any exemption(s) in the Public Records Law that would support the redacting of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not satisfy its burden in demonstrating how the redacted information is exempt from disclosure under the Public Records Law. Consequently, the Office must identify an exemption that applies to withhold portions of the records from disclosure. G. L. c. 66, § 10(b). 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 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).

Andrew Doherty, Esq. SPR24/0902 Page 6 April 9, 2024 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 January 12, 2024 response, the Office asserted: [With respect to Item 1 of the modified request,]. . . [t]he [Office] identified 47 emails that were responsive to this request. . . You will see that certain material has been redacted from this production, including: . . . the personal identifying information of any civilian related to the investigation. Based on the Office’s response, it is unclear what information has been redacted from the records, nor how the redacted portions constitute intimate details of a highly personal nature. In addition, it is not clear how disclosure would result in personal embarrassment to an individual of normal sensibilities and whether this information is available from other sources. PETA, 477 Mass. At 292. Further, the Office did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Finally, it appears information redacted under Exemption (c) may relate to Office personnel, and not “civilian[s] related to the investigation.” The Office must clarify these matters. 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.

Andrew Doherty, Esq. SPR24/0902 Page 7 April 9, 2024 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. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Work Product Doctrine The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. 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). DaRosa, 471 Mass. 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 Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Based on the Office’s response, although it states that “… certain material has been redacted from this production, including: attorney opinion work product… [and] attorney fact work product …[,]” the Office has not established how the identified redacted portions constitute work product that may be withheld as contemplated in DaRosa. The Office is advised, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). As such, the Office must identify the categories of records it withheld and portions of the records it redacted. Finally, in its January 12, 2024 response, the Office asserted: [The Office] confirmed that there are no text messages that are responsive to your request. The public records team performed a search with our email service provider which resulted in approximately 900 emails. The team then reviewed these emails to identify which emails related, in any way, to [the request]. The team identified 47 emails that were responsive to this request and I have attached these. Based upon a telephone conference between a staff attorney of the Public Records Division and a representative of the Office, the Office confirmed that all responsive records have been provided to Mr. Chester.

Andrew Doherty, Esq. SPR24/0902 Page 8 April 9, 2024 Conclusion Accordingly, the Office is ordered to provide Mr. Chester 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. Chester may appeal the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: James Chester