Geoffrey E. Spofford v. Worcester County District Attorney's Office (SPR 20250680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2025 SPR25/0680 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 Geoffrey E. Spofford, Esq. 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 July 2, 2024, Attorney Spofford requested: [1] Copies of all recorded phone calls and/or 911 recorded calls; [2] Copies of any and all data obtained from the Crash Data Recorders in the [two identified individuals’] vehicles; [3] An inventory of all documents, items and things found in the [identified individual’s] vehicle; [4] Copies of all documents, items and things found in the [identified individual] vehicle; [5] Copies of any and all police reports from the Massachusetts State Police, the Collision Analysis and Reconstruction Section (CARS), the MSP Crime Scene Services Section, the Charlton Police Department and any other police department providing assistance; [6] A CARS summary report was completed in lieu of a full reconstruction report since there were no criminal charges resulting from the accident, however ‘all notes, electronic data and reports [were to] remain on file.’ I request copies of these notes, electronic data and reports; [7] Copies of all dispatch records from the Massachusetts State Police, Charlton Police and any 911 dispatch records; [8] Copies of any witness statements; [9] Copies of any statements taken from [an identified individual], operator of the third vehicle involved in this accident; [10] All turret tape recordings; [11] All photographs, CD’s/DVD’s and/or videos of the locus of the event, of the 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. SPR25/0680 Page 2 March 24, 2025 area, of any of the parties involved, and of the vehicles involved; [12] Two dash cam videos referenced in the Crash Data Summary Data Sheet at the section labelled ‘Other’; [13] The post-mortem toxicology report (Toxicology Lab Report 22-26621) for [an identified individual] indicating positive findings for ethanol; [14] Copies of any and all recordings of any statements given by any witnesses; [15] Copies of any accident reconstruction reports, maps, plans, diagrams, videos, photos, including from the use of drones or chalks relating to this incident. The Office responded on February 27, 2025. Unsatisfied with the Office’s response, Attorney Spofford petitioned this office, and this appeal, SPR25/0680, 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. 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 27th Response In its February 27, 2025 response, the Office provided redacted responsive records and withheld other records, citing Exemptions (c) and (f) of the Public Records Law for redacting and withholding responsive records. See G. L. c. 4, § 7(26)(c), (f). 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

Mark Relation, Esq. SPR25/0680 Page 3 March 24, 2025 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. In its February 27th response, under Exemption (c), the Office argues the following: Please note, the District Attorney’s Office has an obligation to protect the privacy of persons named in the documents. Therefore, the public file does not include witness names, dates of birth, social security numbers, telephone numbers, residential addresses, motor vehicle registrations, private medical information, and other personal identifying information. See G.L. C. 4, § 7 (26)(c). The Office is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Mark Relation, Esq. SPR25/0680 Page 4 March 24, 2025 Based on the Office’s response, to the extent that the records contain medical information, social security numbers, telephone numbers, and motor vehicle registrations, the Office may permissibly redact such portions from disclosure. However, it is unclear how witness names, dates of birth, residential addresses, and “other personal identifying information” constitute intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the 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. As a result, I find that the Office did not meet its burden of specificity in redacting the records under Exemption (c) of 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. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62.

Mark Relation, Esq. SPR25/0680 Page 5 March 24, 2025 To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its February 27th response, the Office states: Additionally, certain records have been withheld in their entirety. Attorney notes, preparatory materials, certain communications, and other materials constituting attorney work-product have been excluded as that material is subject to privilege. Dash camera footage obtained from private citizens is not part of the public file as it constitutes ‘investigatory material’ that is exempt from disclosure under the public record law. G.L. c. 4, § 7 (26)(f). This exemption applies even to cases that are closed. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62-63 (1976). The exemption serves many salutary purposes including, ‘the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.’ Id. Although the Office states that some records are subject to privilege, it is unclear how the records can be withheld in their entirety under Exemption (f). Specifically, the Office did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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 this matter.

Mark Relation, Esq. SPR25/0680 Page 6 March 24, 2025 Conclusion Accordingly, the Office is ordered to provide Attorney Spofford with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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. Sincerely, Manza Arthur Supervisor of Records cc: Geoffrey E. Spofford, Esq.