Geoffrey E. Spofford v. Worcester County District Attorney's Office (SPR 20251981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2025 SPR25/1981 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’s] 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. SPR25/1981 Page 2 July 23, 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/0680 Determination of the Supervisor of Records (March 24, 2025). In my March 24th determination, I found the Office did not meet its burden of specificity in redacting the records under Exemption (c) of the Public Record Law and withholding responsive records, in their entirety, under Exemption (f). The Office responded on May 8, 2025. Unsatisfied with the Office’s response, Attorney Spofford petitioned this office, and this appeal, SPR25/1981, 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 May 8th Response In its May 8, 2025 response, the Office maintained that some records could be redacted under Exemption (c) and others could be withheld in their entirety under Exemption (f) of the Public Records Law. The Office also added Exemption (d) for withholding some responsive records. See G. L. c. 4, § 7(26)(c), (d), (f).

Mark Relation, Esq. SPR25/1981 Page 3 July 23, 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 the second clause of 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 clause 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). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires 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 8th response, under Exemption (c), the Office argues the following: An individual’s date of birth is an intimate detail of a highly personal nature and revealing it would result in an unwarranted invasion of personal privacy. Malicious actors can use an individual’s date of birth to obtain other intimate and highly personal information. For example, individuals may use another’s date of birth as part of various fraud and identity theft schemes that can include but are not limited to accessing private and financial accounts, opening new accounts, creation of fake IDs, and phishing and social engineering attacks on not just the specific individual themselves but also their families, friends, co-workers, and

Mark Relation, Esq. SPR25/1981 Page 4 July 23, 2025 other members of their communities. On the other side of the scale, the public’s right to know whether public servants are carrying out their duties in a law- abiding and efficient manner does not bear any weight in favor of releasing the date of birth of private individuals who were involved in or witnessed an automobile collision and certainly does not ‘substantially outweigh’ the very serious privacy concerns outlined above. With regards to names and residential addresses, you apply the three factors initially described in PETA (those quoted above) to come to the conclusion that they may not be permissibly withheld under exemption (c). However, the Supreme Judicial Court in PETA provides a different set of ‘case-specific’ factors to apply to private addresses: (l) whether the redacted information pertains to home or business addresses of public or private entities; (2) whether, and to what extent, that information is available from other sources; and (3) whether, and to what extent, the department can identify specific information demonstrating that a significant risk to an individual’s personal safety is posed by the disclosure of a home address or telephone number that may be among the redacted information. Id. at 295. Using these factors, the addresses sought are home addresses of private individuals. Turning to the second factor, names and addresses of private individuals are sometimes accessible through other publicly available sources. However, the requestor here seeks not just the name and personal address of private individuals in isolation, but specifically the names and personal addresses of the particular individuals who were involved in or witnessed this particular automobile collision, and that linking of the name, personal address, and this automobile collision is not publicly available. Finally, under the third factor, while we have no specific information that releasing the name and home address of any particular individual would cause a significant risk to that individual’s personal safety, releasing a name with a connected home address does result in increased vulnerability to fraud, identity theft, phishing, and social engineering attacks on those individuals and their families, friends, co-workers, and other members of their communities as described above. On the other side of the scale, the names and personal addresses of individuals who were involved in or witnessed this automobile collision are not necessary for the public to be able to know whether public servants carried out their duties in a law-abiding and efficient manner. In sum, the public interest in disclosure does not substantially outweigh the weight of the personal privacy interests involved.

Mark Relation, Esq. SPR25/1981 Page 5 July 23, 2025 Weighing of the privacy interests As described above, the factors to consider when assessing the weight of the privacy interest at stake are: (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. PETA, 477 Mass. at 291. In its May 8th response, the Office does not acknowledge that completed affidavits of voter registration, which contain name; residential address; date of birth; party affiliation; former name and address, if any; and affirmation of U.S. citizenship status are publically available. See G. L. c. 51, §§ 41, 42H; see also SPR16/335 Determination of the Supervisor of Records (June 3, 2016). Despite the Office’s assertion that “[m]alicious actors can use an individual’s date of birth to obtain other intimate and highly personal information,” the Office has not demonstrated how a resident’s date of birth rises to the level of an intimate detail of a highly personal nature. In addition, it is unclear how disclosing the information would result in personal embarrassment to an individual of normal sensibilities. Regarding the redactions of names and residential addresses, the Office argues that the information linking these particular names and addresses to this specific automobile accident is not publicly available. The Office also states that “while we have no specific information that releasing the name and home address of any particular individual would cause a significant risk to that individual’s personal safety, releasing a name with a connected home address does result in increased vulnerability to fraud, identity theft, phishing, and social engineering attacks…” Based on the Office’s May 8th response, the release of the requested information has not been established to likely result in personal embarrassment to an individual of normal sensibilities or constitute intimate details of a highly personal nature. Moreover, responsive information is currently available from another public source. In light of the factors articulated in PETA, I find the Office has not demonstrated a strong privacy interest in the information within the responsive records. Therefore, I find that the Office did not meet its burden in redacting the dates of birth, names and residential addresses under 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).

Mark Relation, Esq. SPR25/1981 Page 6 July 23, 2025 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. Under Exemption (d), the Office states, “[a]ttorney work-product is not public record pursuant to exemption (d).” Based on the Office’s May 8th response, it is unclear how the responsive records, in their entirety, constitute 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 demonstrated that the responsive records are not factual in nature, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa, at 448. The Office must clarify these matters. 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. Accordingly, the Office’s response did not contain the specificity required in a denial of access to public records. Further, the Office did not identify the records in its possession that it intends to withhold from disclosure under Exemption (d) of the Public Records Law. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Office must clarify these matters.

Mark Relation, Esq. SPR25/1981 Page 7 July 23, 2025 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. 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

Mark Relation, Esq. SPR25/1981 Page 8 July 23, 2025  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 8th response, the Office states: You also request additional clarification on how dash camera footage voluntarily provided to law enforcement officers to aid in their investigation can be withheld under exemption (f). In your letter, you create [T]here categories that justify withholding records under Exemption (f)… Assuming arguendo that these are indeed the three categories of records that may be withheld under exemption (f), dash camera footage voluntarily provided to law enforcement officers to aid in their investigation falls under your third category, which includes ‘information voluntarily provided by an individual or entity to aid in the investigation.’ Furthermore, names, personal addresses, and dates of birth of witnesses is information that ‘directly or indirectly identif[ies] a private citizen who volunteers as a witness,’ and as such is additionally exempt from disclosure under exemption (f). In a telephone call between a staff attorney of the Public Records Division and the Office on July 17, 2025, the Office confirmed that the responsive records do not relate to an ongoing investigation. To the extent that the records contain identifying information of voluntary witnesses, I find the Office may permissibly redact such portions from the record. However, it is unclear how the records can be withheld in their entirety under Exemption (f). Specifically, the Office still has not provided 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. 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

Mark Relation, Esq. SPR25/1981 Page 9 July 23, 2025 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.