Todd Wallack v. Middlesex District Attorney's Office (SPR 20250023)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2025 SPR25/0023 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Middlesex 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 October 22, 2024, Mr. Wallack requested “[a]ny accusations of sexual assault or rape allegedly committed by [an identified individual] in the agency’s records, excluding reports of a rape in Acton on June 18, 2013.” Previous Appeal This request was the subject of a previous appeal. See SPR24/3000 Determination of the Supervisor of Records (November 19, 2024) and SPR24/3269 Determination of the Supervisor of Records (December 17, 2024). In my December 17th determination, I ordered the office to provide Mr. Wallack with a supplemental response. Subsequently, the Office responded on January 2, 2025. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office, and this appeal, SPR25/0023, 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. 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

Daniel M. DeBlander, Esq. SPR25/0023 Page 2 January 17, 2025 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. Current Appeal In his appeal petition, Mr. Wallack contends that The agency cited various potential exemptions, but declined to say whether it identified any responsive records that it is withholding or explain how the exemptions apply to those specific records as the public records law requires. . . . Instead, the agency neither confirmed nor denied it even has any responsive records, let alone provide details about those records or explain how the general exemptions apply to those specific records. It also cited the investigative exemption while neither confirming nor denying any such investigation exists, let alone is active. The Office’s January 2nd Response In its January 2, 2025 response, the Office states the following: Records of allegations of sexual assault or rape of the kind [Mr. Wallack is] requesting are not subject to public disclosure in response to a public records request for several reasons. First, (1) records concerning sexual assault or rape accusations implicate two statutes, both of which make it a crime for a District Attorney’s office to disclose reports and other records concerning such offenses, or to disclose the identities of victims of sexual assault or rape. See G.L. c. 41, § 97D, G.L. c. 265, § 24C. Second, (2) records concerning accusations of sexual assault or rape implicate the privacy interests of both victims and accused persons. And lastly, (3) any disclosure could negatively impact the wellbeing of victims or witnesses who may only come forward to report incidents of sexual assault on condition of anonymity. Public dissemination of records, or even information about those records, may force a victim to relive a traumatic event and may place victims at risk by putting the accused on notice that the victim had come forward to report them. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that

Daniel M. DeBlander, Esq. SPR25/0023 Page 3 January 17, 2025 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 January 2nd 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 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.

Daniel M. DeBlander, Esq. SPR25/0023 Page 4 January 17, 2025 Additionally, in its January 2nd 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 response, under the statutes cited above, the Office argues the following: The courts have read this statute more broadly to apply to District Attorneys’ files concerning sexual assault or rape cases generally. See Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2015) (finding that in response to a public records request for district attorney’s case file involving charges of rape that “there is no obligation on [a] district attorney to produce documents under the public records law…because materials relating to an allegation of sexual assault are exempt from that law,” citing G.L. c. 41, § 97D, G.L. c. 265, § 24C). . . . Violation of section 97D or section 24C is a criminal offense, and as such this Office is barred by law from disclosing records of the kind you request. 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

Daniel M. DeBlander, Esq. SPR25/0023 Page 5 January 17, 2025 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. In its response, under Exemption (c), the Office argues the following: [Mr. Wallack’s] request explicitly seeks records of criminal “accusations” against a specifically identified individual. Identifying an individual as the subject of an active or closed criminal investigation for accusations of sexual assault would clearly implicate the privacy interests of both accused individuals and victims. As such, any responsive records would be further exempt from disclosure under the privacy exemption to the Public Records Law, which calls for the withholding, in relevant part, of “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” G.L. c. 4, § 7(26)(c). Records identifying an individual as accused of sexual assault would be exempt under this exemption as disclosure of this information would clearly result in embarrassment to individuals of normal sensibility and would constitute “intimate details of a highly personal nature.” Furthermore, any response letter from this Office that would acknowledge the existence of an investigation or records containing allegations of sexual assault or

Daniel M. DeBlander, Esq. SPR25/0023 Page 6 January 17, 2025 rape against a named individual would require the creation of a new record that contains the very same information that is itself exempt from disclosure because it would indirectly identify the accused and may indirectly identify victims to those who may be familiar with an incident. See Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 438 (1983) (exempting information from disclosure under privacy exemption and noting that the release of certain information “even without other particular identifying details, [can] create[s] a grave risk of indirect identification”); see also G.L. c. 66, § 6A(d) (records access officers “shall not be required to create a new public record in order to comply with a request”). Identifying any records in our possession, custody or control would require this Office to indirectly identify individuals accused of serious criminal behavior, even where such accusations may later be recanted, where the accused may be innocent, where there may be insufficient evidence to bring charges, or where victims themselves do not wish to proceed with a case. To do so would constitute an unwarranted and substantial interference with an individual’s privacy. See G.L. c. 214, § 1B (holding that “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy,” and creating a right of action in equity under the jurisdiction of the Superior Court to enforce such right, including any award of damages). 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.

Daniel M. DeBlander, Esq. SPR25/0023 Page 7 January 17, 2025 Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and 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); Bougas, 371 Mass. 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its response, under Exemption (f), the office argues the following: Lastly, any disclosure of records or information concerning records of accusations of sexual assault could present a risk of indirectly identifying victims or witnesses and could negatively impact the wellbeing of victims or witnesses who may only come forward to report incidents of sexual assault on condition of anonymity. Such records are thus further exempt from disclosure under the investigatory exemption (f) as they constitute “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). The investigatory exemption does not apply only to active investigations. Rather, “[e]ven materials relating to an inactive investigation may require confidentiality in order to convince citizens that they may safely confide in law enforcement officials.” Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976). Public dissemination of records, or even information about those records, may force a victim to relive a traumatic event, and may place victims or witnesses at risk by putting the accused on notice that the accused or a witness had come forward to report them, thus indirectly identifying the victim. See Globe Newspaper Co., 388 Mass. at 438 (noting that disclosure of certain information may present a grave risk of indirect identification, and that “identifying information regarding an individual…must be considered not only from the viewpoint of the public but also from the vantage of those who are familiar [with a matter]”). In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a), (c), and (f) claims made by the Office to withhold responsive records, the Office must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s

Daniel M. DeBlander, Esq. SPR25/0023 Page 8 January 17, 2025 custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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. 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 un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack