Laura Carey v. Suffolk County District Attorney's Office (SPR 20243268)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2024 SPR24/3268 Caileigh Durkin Records Access Officer Office of Suffolk County District Attorney One Bulfinch Place Boston, MA 02114 Dear Ms. Durkin: I have received the petition of Attorney Laura Carey, of the New England Innocence Project, 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 May 6, 2024, Attorney Carey referred to Docket Number 9684-CR-11903 and requested, “[a]ny and all notes – typed, handwritten, or in any other format – created between 1996-2002 by the trial prosecutor ... the appellate prosecutor ... or anyone else on the prosecution team regarding this case.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2855 Determination of the Supervisor of Records (October 31, 2024). In my October 31st determination, I ordered the office to clarify its claims for redacting the responsive records pursuant to Exemptions (c) and (d) of the Public Records Law. Subsequently, the Office responded on November 14, 2024. Unsatisfied with the Office’s response, Attorney Carey petitioned this office, and this appeal, SPR24/3268, 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

Caileigh Durkin SPR24/3268 Page 2 December 18, 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 August 26th and November 14th Responses In its prior August 26, 2024 response, the Office provided numerous records in redacted form, and cites Exemptions (a), (c) and (d) of the Public Records Law for redacting the records and for withholding others. See G. L. c. 4, § 7(26)(a), (c), (d). In its November 14, 2024 response, the Office provides a “Redaction Log” identifying approximately 59 documents that were provided in redacted form, and a “Withheld Log” identifying approximately 15 documents withheld in their entirety. Current Appeal In her appeal petition, Attorney Carey provides a chart which includes her own responses objecting to the claims made by the Office for redacting specific pages in six of the documents, and for withholding four others in their entirety. Further, she contends that the Office’s “redaction of six documents and withholding of 90 pages described in the appended chart are significant and, given the age of the documents, their descriptions, and the unredacted portions, are unwarranted.” She further contends that the Office’s “work product redactions are excessive,” and that the Office’s “redactions and withholdings for privacy, CORI, and juvenile case records are unwarranted.” 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).

Caileigh Durkin SPR24/3268 Page 3 December 18, 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. 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. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings,

Caileigh Durkin SPR24/3268 Page 4 December 18, 2024 and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). Under G. L. c. 6, § 167A and § 172, the Office states that it is withholding “Court records from an unrelated 1993 Superior Court case,” and argues that “these are the records (docket sheet) of an unrelated case; revealing this information in the context of a named individual would be an unwarranted invasion of privacy and violate CORI laws.” Based on the Office’s response it is unclear how “docket sheets” would not constitute “chronologically maintained court records of public judicial proceedings” or “published records of public court or administrative proceedings.” Consequently, it is unclear how such records may be withheld under G. L. c. 6, § 167A and § 172, as they operate through Exemption (a) of the Public Records Law. Records of Youthful Offender In its response, the Office cites G. L. c. 119, § 60A, which provides in pertinent part as follows: The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. G. L. c. 119, § 60A. Under G. L. c. 119, § 60A, the Office states that it is withholding “SJC Juvenile Court decision from case in Essex County,” and argues that “Juvenile Delinquency case records are not public.” Based on the Office’s response, it is unclear how the withheld record is the type contemplated under G. L. c. 119, § 60A. Specifically, it is unclear how the withheld record constitutes a record in a case “of delinquency arising under sections fifty-two to fifty-nine,” as required by the statute. The Office must clarify this.

Caileigh Durkin SPR24/3268 Page 5 December 18, 2024 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 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 explains that it made the following redactions at the page numbers indicated: 0045, 0047-0048 ... victim’s name and age . . . 0371 ... phone numbers handwritten on the back of the motion; public disclosure would violate privacy protections for civilians involved in the investigation . . .

Caileigh Durkin SPR24/3268 Page 6 December 18, 2024 0058-0064, 0066, 0069 ... Name of defendant’s cellmate at Billerica House of Corrections, jail call phone record recipient (name, number, and address) victim’s name; public disclosure of this identifiable information would be an unwarranted invasion of privacy for the victim, the defendant’s cellmate, and the individuals (civilians) who contacted him during his incarceration . . . 0696-0697, 0699-0700, 0702 ... victim’s name; public disclosure of this information would violate privacy protections Where the Office has redacted the personal phone numbers of private individuals, I find that such information may be properly redacted under Exemption (c). However, based on the Office’s response, it is unclear how the other redacted information constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the redacted information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Additionally, under Exemption (c) and G. L. c. 6, §§ 167A, 172, the Office indicates that it is withholding “Suffolk County Sheriff disciplinary/communication records, court summaries, investigation materials for involved individual/witness.” The Office argues that “disclosing the court records or Sheriff disciplinary records of a witness would violate privacy protections and CORI laws; Providing these documents in the context of an identified individual would reveal a criminal history.” The Office is advised that the Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. In this case, based on the Office’s response, it is unclear whether the responsive “Sheriff disciplinary/communication records” are related to a law enforcement misconduct investigation. Additionally, it is unclear how the withheld record constitutes the type of record contemplated under G. L. c. 6, § 167A and § 172. Also under Exemption (c) and G. L. c. 6, §§ 167A, 172, the Office indicates that it is withholding “jail visitor Logs for involved individual/witness.” The Office argues that “records from a prison or jail are not public records and if disclosed, would violate privacy and CORI

Caileigh Durkin SPR24/3268 Page 7 December 18, 2024 protections.” Based on the Office’s response, I find the Office has not met its burden to demonstrate how disclosing the responsive visitor logs would result in personal embarrassment to an individual of normal sensibilities. Further, in light of the procedures governing visitation to jails, e.g., those articulated in G. L. c. 127, § 36 (requiring each visitor provide statement with name, residence, and relationship to inmate), and 103 C.M.R. 483 (records shall be kept for every inmate with name and date for every visit), the Office has not demonstrated how the visitor logs, in their entirety, constitute intimate details of a highly personal nature. Additionally, the Office has not addressed whether this information is available from other sources. See PETA, 477 Mass. at 291-92. 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. 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. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of 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). Id. 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. Under Exemption (d), the office states that it made the following redactions at the page numbers indicated: 0045, 0047-0048 ... Prosecutor’s impression on the severity of sentencing and

Caileigh Durkin SPR24/3268 Page 8 December 18, 2024 reasoning for sentencing; although these impressions were made in factual context, disclosing these notes would violate the protections for Attorney notes that are not of a factual nature ... public disclosure would reveal the attorney’s opinion on the strength or lack thereof of the sentence given to Ms. Kelley . . . 0696-0697, 0699-0700, 0702 ... the attorney’s thoughts and impressions on the potential witnesses and witness credibility, potential Grand Jury proceedings, and legal remedies to impose for sentencing; public disclosure would reveal the attorney’s viewpoint of confidential court proceedings within the Grand Jury, and their personal thoughts/opinions on the case. . . . 0744-0752, 0791, 0806-0811 . . . Pages 0744-0752: Handwritten outline/notes of the attorney preparing for statements to the Jury during the trial; these notes are not factual and reflect the thoughts and ideas of the attorney. Page 0791: Handwritten notes on the severity of the crime with the Attorney’s ideas on how to prove the level of intent and malice; these notes are not factual. Pages 0806- 0811: Handwritten notes and summaries on case law and decisions in other unrelated cases and how they apply to the present case; these notes are not factual and reveal the thoughts and ideas of the attorney . . . 0849-0850, 0859-0861, 0867, 0869, 0892 ... Pages 0849-0850: Handwritten notes detailing co-defendant[’s] . . . criminal history and thoughts/impressions on her actions reveal CORI and are not factual. Pages 0859-0861: handwritten rough outline of the events leading to and after the incident; these notes are not factual and contain the attorney’s thoughts, ideas, and opinions. Page 0867: Notes and a to-do list created by the attorney regarding the codefendant, . . .; these notes are not factual and only outline the attorney’s next steps in their investigation/ understanding of the incident. Page 0869: Notes regarding next steps and documents needed; reveals the thoughts and impressions of the attorney. Page 0892: list of the civilian witnesses and involved individuals, their role as perceived by the attorney, and further documents needed; these notes reveal the thoughts and impressions of the attorney[.] In this case, it is unclear how all the redacted information constitutes the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Office has not demonstrated that all of the redacted information is not factual in nature, nor that the redacted portions are interwoven with opinions or analysis leading to opinions. See Id. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Attorney Carey 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

Caileigh Durkin SPR24/3268 Page 9 December 18, 2024 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Laura Carey, Esq.