Mike Dunphy v. Worcester County District Attorney's Office (SPR 20250475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2025 SPR25/0475 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Mike Dunphy, of Sword and Scale, 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 Appeals This request was the subject of prior appeals. See SPR24/3347 Determination of the Supervisor of Records (December 23, 2024) and SPR25/0127 Determination of the Supervisor of Records (January 27, 2025). In my January 27th determination, I ordered the Office to clarify its claims under Exemption (c) for withholding responsive records. Subsequently, the Office responded on February 14, 2025. Unsatisfied with the Office’s response, Mr. Dunphy petitioned this office, and this appeal, SPR25/0475, 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

Mark Relation, Esq. SPR25/0475 Page 2 March 4, 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. The Office’s February 14th, January 10th, and December 11th Responses In its February 14, 2025 response, the Office refers back to its previous January 10, 2025 and December 11, 2024 responses, and cites Exemptions (a) and (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c). The Office also explains the following: [The Supervisor] also request[ed] clarification on whether segregable portions of the requested records can be provided. They cannot, as the records are exempt in their entirety for the reasons outlined in our previous responses. 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). 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.

Mark Relation, Esq. SPR25/0475 Page 3 March 4, 2025 In its February 14th response, the Office cites Uniform Impoundment Procedure Rule 9, which provides as follows: Upon entry of an order of impoundment, or pursuant to an impoundment designation set forth in a statute, court rule, standing order, or case law, the clerk shall make a notation in the docket indicating what material has been impounded and the duration of its impoundment status. All impounded material shall be clearly marked, and kept separate and unavailable for public inspection. The impounded material shall be available to the court, the clerk and designated court personnel, the attorneys of record, the parties to the case, and other persons designated by the court, unless otherwise ordered by the court. Upon expiration or other termination of the order of impoundment, the material shall be returned to the public case record, unless other arrangements have been made, and the docket marked accordingly. MA R. Impound P. Rule 9. In its February 14th response, under Exemption (a) and MA R. Impound P. Rule 9, the Office argues that “the video of the homicide at issue in this request has been impounded by a court order and is thus additionally exempt from disclosure under exemption (a).” In this case, although the Office has explained that the video of the homicide is subject to an impoundment order, I find that based on the information provided in the Office’s response, it is unclear whether the impoundment order cited by the Office may have expired or been terminated. Consequently, the Office must provide a copy of the order of impoundment cited in its February 14th response for withholding the video. 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).

Mark Relation, Esq. SPR25/0475 Page 4 March 4, 2025 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 December 11th response, under Exemption (c), the Office argues the following: Additional recordings, including video of the homicide, have been withheld as they contain material related to specifically named individuals that would constitute an unwarranted invasion of personal privacy if disclosed. G. L. c. 4, § 7 (26)(c); see National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004). In its January 10th response, under Exemption (c), the Office argues the following: The 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. . . . Individuals of normal sensibilities would generally be embarrassed if private home videos were made public record. Recordings of the murder itself would cause particular “embarrassment.” Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 168 (2004) (“Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.”). The videos contain material that correspond to the categories of “marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcohol consumption, family fights, [and] reputation” recognized as “intimate details of a highly personal nature” in Attorney Gen. v. Assistant Comm’r of the

Mark Relation, Esq. SPR25/0475 Page 5 March 4, 2025 Real Prop. Dep’t of Boston, 380 Mass. 623,626 n.2, 404 N.E.2d 1254 (1980). None of these videos are available from other sources. For these reasons, the public interest in obtaining the requested records does not substantially outweigh the seriousness of the invasion of privacy. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Office to withhold responsive videos, 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 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.

Mark Relation, Esq. SPR25/0475 Page 6 March 4, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Mike Dunphy