Andrew Ryan v. Bristol County District Attorney's Office (SPR 20251752)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2025 SPR25/1752 Monica Carreiro Records Access Officer Bristol District Attorney’s Office 218 South Main Street Fall River, MA 02721 Dear Ms. Carreiro: I have received the petition of Andrew Ryan, of the Boston Globe, appealing the response of the Bristol 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 April 28, 2025, Mr. Ryan requested the following: 1. Any and all records related to [a named individual] detailing his misconduct or alleged misconduct. 2. Any records, memos, emails, other communication, or other disclosures to defense attorneys regarding [the named individual] under Brady v. Maryland, 373 U.S. 83 (1963) Giglio v. United States, 405 U.S. 150 (1972), Commonwealth v. McFarlane, 493 Mass. 385 (2024) and Graham v. District Attorney for the Hampden Dist., 493 Mass. 348 (2024). 3. Any records, memos, emails, other communication, or other potential exculpatory evidence disclosed to defense attorneys regarding [a named individual]. The Office responded on May 27, 2025. Unsatisfied with the Office’s response, Mr. Ryan petitioned this office, and this appeal, SPR25/1752, 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

Monica Carreiro SPR25/1752 Page 2 July 3, 2025 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 May 27th Response In its May 27, 2025 response, the Office provides “twelve redacted pdf documents, three redacted body-worn camera videos, and one redacted turret radio recording.” The Office also states “that certain records have been withheld or redacted in compliance with the Public Records Law,” and cites Exemptions (a), (c), (d) and (f) of the Public Records Law for withholding and redacting the records. See G. L. c. 4, § 7(26)(a), (c), (d), (f). 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.

Monica Carreiro SPR25/1752 Page 3 July 3, 2025 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. In its May 27th response, under Exemption (a) and CORI, the Office argues the following: [C]riminal offender record information has been redacted. The criminal offender record information statute (CORI) prohibits dissemination of records which concern an identifiable individual and relate to the nature or disposition of a criminal charge, a pre-trial proceeding, sentencing, incarceration, rehabilitation, or release. G.L. c. 6, § 167, 178. Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 268 (2020) citing G.L. c. 6, § 167, et al. See also G.L. c. 4, § 7, cl. 26(a). Based on the Office’s response, I find that the Office has not met its burden to redact the records pursuant to the CORI statute as it operates through Exemption (a) of the Public Records Law. Specifically, it is not clear how the redacted information constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Office must clarify this matter.

Monica Carreiro SPR25/1752 Page 4 July 3, 2025 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 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 May 27th response, under Exemption (c), the Office argues the following: Private individual information such as names, dates of birth and home addresses has been redacted. Additionally, in order to modify the voices of private individuals in the video clips, the trooper’s voice has also been altered. See G.L. c. 4, § 7, cl. 26(c) (materials related to a specifically named individual, that if disclosed would constitute an unwarranted invasion of privacy). See also Chalifoux v. Chalifoux, 2017 U.S. App. LEXIS 13547, *5, n.5 (1st Cir. 2017) (claim of invasion of privacy under chapter 214, section 1B for disclosure of police report; court took no action). 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 in Mack held that

Monica Carreiro SPR25/1752 Page 5 July 3, 2025 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. The Court in Mack explained that “the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each ‘relate[] to a law enforcement misconduct investigation’ and may not be withheld under the privacy exemption.” Id. at 12. In this case, where the requested records appear to be related to an investigation into misconduct by a law enforcement officer, I find the Office has not shown how the withheld records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Office has not met its burden to withhold or redact the responsive records pursuant to Exemption (c) of the Public Records Law. 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. In its May 27th response, under Exemption (d), the Office argues the following:

Monica Carreiro SPR25/1752 Page 6 July 3, 2025 Written intra-office and or inter-office communications have been redacted as work product. DaRosa v. New Bedford, 471 Mass. 446, 458 (2015), citing G.L. c. 4, § 7, cl. 26(d). The DaRosa Court noted the importance of open and frank recommendations and opinions during the policy making and deliberative processes. Id. at 458. Opinion work product requires, at a minimum, a highly persuasive showing to justify its disclosure. Id. at 459. See also Commonwealth v. Liang, 434 Mass. 131, 132 (2001) (privilege includes notes of victim-witness advocates). In this case, the Office has not met its burden to redact responsive records under Exemption (d). Specifically, it is unclear how 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 met its burden to show that the redacted information is not factual in nature, nor reasonably completed, nor that the redacted information is interwoven with opinions or analysis leading to opinions. See DaRosa at 448. The Office must clarify this. 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

Monica Carreiro SPR25/1752 Page 7 July 3, 2025 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. 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 May 27th response, under Exemption (f), the Office argues the following: Statements from identifiable individuals who served as witnesses or who reported information to investigators are exempt from disclosure under the investigatory exception of the Public Records Law, even after the investigation is complete. G.L. c. 4, § 7, cl. 26(f) (protection of confidentiality for witnesses to preserve future investigatory techniques). See also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983) (explanation of “identifying details” and “grave risk of indirect identification” of witnesses); Commonwealth v. Winfield, 464 Mass. 672, 683 (2013) (recordings of witness’s voices are not public, to protect privacy of witnesses); WBZ-TV4 v. District Attorney for Suffolk Dist., 408 Mass. 595, 602-604 (1990) (“district attorney has offered an adequate justification for nondisclosure which relates, in a specific manner, to the tape- recorded witness statement”). Publication of such information obtained from witnesses would dissuade future witnesses from cooperating with the police in future investigations. In this case, where the Office has redacted information to protect the identities of victims and voluntary witnesses, I find the Office may properly redact such information pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f).

Monica Carreiro SPR25/1752 Page 8 July 3, 2025 Conclusion Accordingly, the Office is ordered to provide Mr. Ryan 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 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Ryan may further 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: Andrew Ryan