Todd Wallack v. Plymouth County District Attorney's Office (SPR 20242153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2024 SPR24/2153 Karen A. Palumbo, Esq. Assistant District Attorney Office of the District Attorney, Plymouth District 166 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Plymouth 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 June 20, 2024, Mr. Wallack requested “[a] copy of the county’s grant application for funding through the Sexual Assault Kit Initiative.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1911 Determination of the Supervisor of Records (July 18, 2024). In my July 18th determination, I ordered the Office to clarify its claims under Exemption (a) for redacting responsive records. Subsequently, the Office responded on July 29, 2024. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office, and this appeal, SPR24/2153, 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. 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 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

Karen A. Palumbo, Esq. SPR24/2153 Page 2 August 12, 2024 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 July 29th Response In its July 29, 2024 response, the Office states that “on July 3, 2024, the Plymouth County District Attorney’s Office provided [Mr. Wallack] with a copy of that grant application in redacted form. In particular, [the Office] redacted the names of the victims of sexual assault and murder.” The Office cites Exemptions (a), (c) and (f) of the Public Records Law for redacting the record. 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, 154 (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. In its July 29th response, the Office cites G. L. c. 41, § 97D, which provides in pertinent part as follows: All reports of rape and sexual assault or attempts to commit such offenses, all

Karen A. Palumbo, Esq. SPR24/2153 Page 3 August 12, 2024 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276. G. L. c. 41, § 97D. Additionally, in its July 3rd response, the Office cites G. L. c. 265, § 24C, which provides as follows: 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, 13B ½, 13B ¾, 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. Except as otherwise provided in this section, it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim of any of the offenses described in the first paragraph. A violation of this section shall be punishable by a fine of not less than two thousand five hundred dollars nor more than ten thousand dollars. G. L. c. 265, § 24C. In its July 29th response, under the statutes cited above, the Office argues the following:

Karen A. Palumbo, Esq. SPR24/2153 Page 4 August 12, 2024 The individuals named in the grant are all victims of sexual assault. While the statute speaks of reports held by police departments, the statute also makes those records available to district attorneys and other parties involved in the prosecution of crimes and the enforcement of the law. To suggest that the information, once shared with other law enforcement agencies becomes public is contrary to the purpose of the statute, to keep the identities of sexual assault victims out of the public domain. In fact, disclosing such information can lead to not only a fine, but also imprisonment. See G.L. c . 265 , § 24C (“it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim of” rape or sexual assault.) In Commonwealth v. George W. Prescott Publ’g Cp., LLC, 463 Mass. 258, 268 n.12 (2012), citing Montefusco v . Commonwealth, 452 Mass. 1015, 1016 (2009) the court noted that “where a defendant convicted of rape seeks postconviction discovery of the prosecutor’s case file the prosecutor had no obligation, under the public records law, G. L. c. 66, § 10, ‘because materials relating to an allegation of sexual assault are exempt from [the public records] law.’” Again, the victims named in the grant are victims of sexual assault and it is “unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim” of sexual assault. Based on the Office’s July 29th response, where the redacted information would reveal the identities of victims of sexual assault, I find the Office has explained how the redacted information is the type contemplated under G. L. c. 265, § 24C. Consequently, I find that the Office has met its burden to redact the responsive record under G. L. c. 265, § 24C as it operates through Exemption (a) of the Public Records Law. 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to

Karen A. Palumbo, Esq. SPR24/2153 Page 5 August 12, 2024 medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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. Under Exemption (c), the Office argues the following: The Commonwealth may also withhold the names of victims under the privacy exemption, G.L. c. 4, § 7(26)([c]). The privacy exemption provides that the Commonwealth may withhold any materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. . . . The victim’s [sic] of sex crimes have a substantial privacy interest in nondisclosure of their identities. The competing public interest in monitoring the investigative response to reported sexual offenses, while substantial, does not outweigh the privacy interests of the victims, particularly when those privacy interests are coupled with a compelling public interest in insuring the physical safety of the victims and encouraging future victims to report sexual offenses without fear of exposure. 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

Karen A. Palumbo, Esq. SPR24/2153 Page 6 August 12, 2024 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 289-90. In its July 29th response, under Exemption (f), the Office argues that “the cases mentioned in the grant remain unsolved and therefore the investigatory exemption would also apply. G.L. c. 4 , § 7(26)(f).” In this case, where the records may be properly redacted under G. L. c. 265, § 24C, as it operates through Exemption (a) of the Public Records Law, I find it is unnecessary to opine on the Office’s claims under Exemptions (c) and (f) for redacting the responsive record. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Wallack 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). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack