Todd Wallack v. Hampden County District Attorney's Office (SPR 20242503)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2503 Michael Locke, Esq. Assistant District Attorney Hampden District Attorney’s Office 50 State Street Springfield, MA 01102 Dear Attorney Locke: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Hampden 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 10, 2024, Mr. Wallack requested “[c]opies of any applications for search warrants in the following [identified] rape/kidnapping cases involving [an identified] defendant[.]” Prior Appeal This request was the subject of a prior appeal. See SPR24/2112 Determination of the Supervisor of Records (August 8, 2024). In my August 8th determination, I found that the Department had not met its burden of specificity to withhold the responsive records under Exemptions (a) and (f) of the Public Records Law. The Office provided a response on August 21, 2024 and a supplemental response on August 22, 2024. Unsatisfied with the Office’s responses, Mr. Wallack petitioned this office and this appeal, SPR24/2503, 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) (written response must “identify 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

Michael Locke, Esq. SPR24/2503 Page 2 September 19, 2024 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…”); 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). The Office’s August 21st and August 22nd Responses In its August 21, 2024 response, the Office stated that the “... Office maintains its denial of your public records request for these materials under both G. L. c. 4, § 7(26)(f) and G. L. c. 41, § 97D.” In its August 22, 2024 response, the Office stated, To further clarify, Commonwealth v. George W. Prescott Publishing Co., LLC, 463 Mass. 258, 263 (2012), does not concern a public records request. That case concerns the issuance of an order releasing from impoundment a search warrant. The SJC in that case specifically noted in footnote 12 that it did not concern a request under the public records law, contrasting it with Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2008), the case the HCDAO relies on. The footnote makes clear that there is a different standard applied where a public records request is made to a prosecutor’s office versus attempting to retrieve judicial records from a courthouse. Current appeal In his appeal, Mr. Wallack states, “...I am only seeking copies of publicly filed court documents. Given that the documents are public court files, it is unclear how ‘the disclosure of the materials would so prejudice the possible of effective law enforcement such that disclosure at any time would not be in the public interest’. G. L. c. 4, §(26)(f).” Mr. Wallack further asserted, “[t]he SJC ruled in a more recent case that search warrants and other public court records are not covered by G.L. c. 41, § 97D. See Commonwealth v. George W. Prescott Publishing Co., LLC, 463 Mass. 258, 263 (2012). ‘On its face, § 97D does not apply to search warrant affidavits or other judicial records’. M.G.L. c. 276, § 2B and The Trial Court’s Uniform Rules on Public Access to Court Records both also make it clear that search warrants are public documents (except for a brief window of time between when they are filed and executed).” 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

Michael Locke, Esq. SPR24/2503 Page 3 September 19, 2024 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 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, indicating that the records are exempt from disclosure. 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: ... the materials requested are exempt pursuant to G. L. c. 4, § 7(26)(a), as they are explicitly exempted by G. L. c. 41, § 97D because they relate to reports of sexual assault and contain communications between police officers and victims of such offenses. The defendant has been indicted on multiple counts of rape. The search warrant applications necessarily include details as to the allegations against the defendant, victim statements to police, and other information relating to claims of sexual assault. Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2008) is instructive. In that case, the Supreme Judicial Court considered a claim from a defendant who had been convicted of rape. Id. at 1015. The defendant filed a public records request with the District Attorney’s Office who prosecuted his case, asking for their entire trial file on his case. Id. The District Attorney’s Office denied

Michael Locke, Esq. SPR24/2503 Page 4 September 19, 2024 the public records request, citing to G. L. c. 41, § 97D. Id. at 1016. The Supreme Judicial Court stated that, “[t]here is no obligation on the district attorney to produce the documents pursuant to the public records law. . . because materials relating to an allegation of sexual assault are exempt” from the public records laws. Id. This was true even after the defendant had been convicted and when it was the defendant himself requesting the documents. Id. The Massachusetts Supreme Judicial Court determined that the entire trial file was exempt pursuant to G. L. c. 41, § 97D. The office further opined, “...where the case against the defendant is actively pending, the allegations have not been disclosed, and victims have not yet had to testify in court. The release of these materials would directly contradict the Legislature’s intent to foster “sensitivity for the rape victim’s plight” in exempting them from the public records law.” 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 289-90. 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

Michael Locke, Esq. SPR24/2503 Page 5 September 19, 2024 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 response, the Office indicated: The defendant has been charged with thirty-one crimes. The materials requested Contain detailed information about the crimes charged, such as witnesses, locations, evidence sought, and evidence recovered. Disclosure of these materials may lead to witnesses tailoring their testimony based on the information in these materials. Such tailoring of testimony could damage the Commonwealth’s case against the defendant or could damage the defendant’s right to obtain a fair trial. For example, [an identified individual] has been charged with multiple offenses involving multiple victims. If statements made by one victim were obtained by another victim, it could taint their testimony and make the case against the defendant appear stronger or weaker than the actual evidence. As another example, if witnesses in one case learned of evidence discovered in another case, their testimony may be tailored to either further unfairly inculpate or exculpate the defendant. The Hampden County District Attorney’s Office is committed to obtaining convictions in a just and fair manner. Therefore, as the release of these documents would jeopardize either the Hampden County District Attorney’s Office’s ability to obtain a conviction or an identified individual’s] ability to obtain a fair trial, their release would so prejudice the possibility of effective law enforcement that disclosure at this time would not be in the public interest. In camera inspection In order to facilitate a determination as to the applicability of the Office’s claims to withhold the records pursuant to Exemptions (a) and (f) of the Public Records Law, the Office must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). 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. Massachusetts 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.

Michael Locke, Esq. SPR24/2503 Page 6 September 19, 2024 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. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack