Mike Dunphy v. Worcester County District Attorney's Office (SPR 20250127)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 27, 2025 SPR25/0127 Lindsay Corcoran Director of Communications Worcester District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Mike Dunphy, appealing the response of the Worcester 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 November 5, 2024, Mr. Dunphy requested “police records regarding the homicide of [a named individual] that occurred in Uxbridge, MA on January 15, 2007… I am seeking any digital audio or video that may have been recorded.” Prior Appeal This request was the subject of a prior appeal. See SPR24/3347 Determination of the Supervisor of Records (December 23, 2024). In my December 23rd determination, I found that the Office must clarify what additional information, aside from the telephone numbers, was redacted from the provided records and how that information constitutes intimate details of a highly personal nature under Exemption (c). Additionally, the Office needed to explain how the withheld records, in their entirety, constitute intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Office provided a response on January 10, 2025, further citing Exemption (c). Unsatisfied with the Office’s response, Mr. Dunphy petitioned this office and this appeal, SPR25/0127, 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 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

Lindsay Corcoran SPR25/0127 Page 2 January 27, 2025 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. Att’y 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. The Office’s January 10th Response In its January 10, 2025 response, the Office cited Exemption (c) of the Public Records Law to withhold requested records. Current Appeal In his appeal, Mr. Dunphy states, “[the Office]’s response fails to sufficiently articulate how the withheld records meet the threshold of Exemption (c)… the Office has not addressed the balancing test required by Massachusetts law, nor has it demonstrated that the privacy interests outweigh the significant public interest in disclosure… If certain materials must be withheld, I urge the Office to provide a more detailed explanation as to why, ensuring transparency in the application of Exemption (c).” 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). 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

Lindsay Corcoran SPR25/0127 Page 3 January 27, 2025 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 stated, “[t]he withheld records include various home videos recorded by the defendant. These videos capture private moments of the personal lives of the defendant and his family, as well as recording the murder itself. Additionally withheld was a video taken by law enforcement officers of the interior of the home after the murder.” Based on the Office’s response, it remains unclear how the records, in their entirety, can be withheld under Exemption (c). Particularly, it is not clear how all the records constitute intimate details of a highly personal nature. Also, the Office did not provide 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. PETA, 477 Mass. at 292. Further, the Office must clarify whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979) (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 these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Dunphy 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. 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. Mr. Dunphy may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mike Dunphy Mark Relation, Esq.