Todd Wallack v. Hampden County District Attorney's Office (SPR 20242206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 19, 2024 SPR24/2206 John A. Wendel, Esq. Assistant District Attorney Hampden County District Attorney’s Office 50 State Street Springfield, MA 01102 Dear Attorney Wendel: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Hampden 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 July 22, 2024, Mr. Wallack requested the following records: Reports from additional victims alleging they were raped or sexually assault[ed] by [an identified individual] after the Hampden District Attorney issued a press release on April 13, 2022 announcing his arrest. . . I also understand the DA’s office held a news conference the same day... The Office responded on August 2, 2024. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/2206, 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 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

John A. Wendel, Esq. SPR24/2206 Page 2 August 19, 2024 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 August 2nd Response In its August 2, 2024 response, the Office cited G. L. c. 41, § 97D, as it operates through Exemption (a), as well as Exemption (f) of the Public Records Law to withhold the requested records. Current appeal In his appeal, Mr. Wallack stated, “... any written notice of denial shall include... identification of any records, categories of records or portions of records that the agency or municipality intends to withhold. The agency’s response did not comply with either the statute or regulations because the agency failed to describe what, if any, records it has withheld.” 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

John A. Wendel, Esq. SPR24/2206 Page 3 August 19, 2024 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 41, § 97D 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. In its response, the Office stated, “... these materials, if they exist, are exempt from disclosure as they would contain reports of sexual assault. See G. L. c. 41, § 97D. Such reports are exempt under the public records law as a way to foster ‘sensitivity for the rape victim’s plight.’ Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 858 n.9 (1980), vacated on other grounds 449 U.S. 894 (1980), on remand 383 Mass. 838 (1981), rev’d on other grounds 457 U.S. 596 (1982). See also Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2008) (‘There is no obligation on the district attorney to produce the documents pursuant to the public records law, G. L. c. 66, § 10, as Montefusco sought to have him do, because materials relating to an allegation of sexual assault are exempt from that law.’). Indeed, disclosure of reports of sexual assault outside of certain, limited circumstances, is a misdemeanor punishable by both fine and imprisonment. See G. L. c. 41, § 97D.” Based on the Office’s response, it is unclear what records the Office possesses that are responsive to the request, nor how the records are restricted under G. L. c. 41, § 97D. 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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office must clarify this matter. 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).

John A. Wendel, Esq. SPR24/2206 Page 4 August 19, 2024 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 response, the Office asserted, “[t]o the extent such records exist, they are exempt from disclosure under the public records laws of the Commonwealth of Massachusetts as they relate to an ongoing criminal investigation. See G. L. c. 4, § 7(26)(f). Disclosure of these materials, if they exist, would so prejudice the possibility of effective law enforcement such that disclosure at this time would not be in the public interest. These materials, if they exist, would detail information related to the incident, such as witnesses, locations, and evidence recovered. Disclosure of these materials may lead to witnesses tailoring their testimony based on the information in those materials, which would prejudice the investigation. Further, the disclosure of such materials, if they exist, could thwart further investigative techniques relating to this investigation. Furthermore, given the nature of the charges, premature disclosure of information, if it exists, may endanger those individuals providing the information to the police.” To the extent the records contain identifying information of voluntary witnesses and complainants, the Office may permissibly withhold such portions from disclosure. However, it is unclear how the records, in their entirety, can be withheld under Exemption (f). The Office did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify whether segregable portions can be provided. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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.

John A. Wendel, Esq. SPR24/2206 Page 5 August 19, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack