Goldberger, Ben v. Middlesex District Attorney's Office (SPR 20260404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 17, 2026 SPR26/0404 Meagan Horn, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney Horn: I have received the petition of Benjamin Goldberger appealing the response of the Middlesex 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 December 8, 2025, Mr. Goldberger requested, “[a]ll email messages sent by [an identified] MDAO employee to [an identified] MDAO employee, dated April 2, 2025, as well as copies of any and all attachments appended to such communications.” The Office assigned reference number 25-249 to this request. Prior Appeal This request was the subject of a prior appeal. See SPR25/3818 Determination of the Supervisor of Records (January 12, 2026). In my January 12th determination, I ordered the Office to clarify how Exemptions (a), (c), and (d) of the Public Records Law and the attorney-client privilege apply to the withheld record. The Office responded on January 27, 2026. Unsatisfied with the Office’s response, Mr. Goldberger petitioned this office and this appeal, SPR26/0404, 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

Meagan Horn, Esq. SPR26/0404 Page 2 February 17, 2026 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 January 27th Response In its January 27, 2026 response, the Office cited Exemptions (a), (c), and (d) of the Public Records Law, and asserted the attorney-client privilege to withhold the responsive record. See G. L. c. 4, § 7(26)(a), (c), (d). Current Appeal In his appeal, Mr. Goldberger contends the following: … The MDAO continues to withhold, in its entirety, one of the three attachments to an electronic mail message. This attachment appears to be a draft press release. … … With respect to exemption (a), … [t]his response is virtually identical to the original response that the Supervisor found wanting. Rather than provide additional information about the withheld document, attempt to refute the statutory analysis provided to the Supervisor by the requestor or explain its past practice of publishing press releases relating to sexual assault cases, the MDAO instead just repeated itself. That is a manifestly inadequate response to the Supervisor’s determination. … In other words, in response to the Supervisor’s request for factual support for the MDAO’s legal position, the MDAO parroted the law back to the Supervisor. The lack of a response strongly suggests that the MDAO’s legal position lacks any such support. The withheld document either contains no information that would fall within the scope of exemption (c) or could be disclosed with identifying information redacted so as to satisfy the balancing test. The MDAO fares no better with respect to exemption (d). … … Finally, the MDAO again failed to provide the privilege log required by law….

Meagan Horn, Esq. SPR26/0404 Page 3 February 17, 2026 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, 545-546 (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. In its January 27th response, the Office cited G. L. c. 41, § 97D to withhold a responsive record. G. L. c. 41, § 97D provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. When citing the above statute in its response, the Office states, “…materials related to an allegation of a sexual assault, including materials in a District Attorney’s case file, are exempt under G.L. c. 41, § 97D.”

Meagan Horn, Esq. SPR26/0404 Page 4 February 17, 2026 Based upon the Office’s response, it is unclear how the requested record is restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). Further, it is uncertain how the responsive record is the type contemplated under G. L. c. 41, § 97D. The Office must clarify this. Exemption (c) Exemption (c) permits the withholding of: 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). First Clause – Medical Information 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). Second Clause – Privacy 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).

Meagan Horn, Esq. SPR26/0404 Page 5 February 17, 2026 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. Under Exemption (c), the Office asserts, “[t]he withheld document is also exempt from disclosure pursuant to exemption (c) (privacy and medical) of the Public Records Law because (1) disclosure would result in embarrassment to an individual of normal sensibilities, (2) the material sought contain intimate details of a highly personal nature, and (3) the same information is not available from other sources.” Based on the Office’s response, it is unclear how the withheld document constitutes medical information. Further, it remains unclear how the record contains 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 withheld information is available from other sources. PETA, 477 Mass. at 292. 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. Id. The Office must clarify these matters. Additionally, the Office must clarify how the records can be withheld in their entirety and why segregable portions cannot be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (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). 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,

Meagan Horn, Esq. SPR26/0404 Page 6 February 17, 2026 § 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). In its response, under Exemption (d), the Office states, “…the withheld document is exempt from disclosure under exemption (d) (deliberative process) of the Public Records Law because it is a draft document which was not public released, such that release would disclose the mental impressions and deliberations which accompanied its creation.” Based on the Office’s response, I find it is unclear what deliberative process the responsive record relates to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the record would taint any ongoing deliberative process. Additionally, I find the Office has not established how the record at issue is “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). The Office must clarify these matters. Further, any information contained in the responsive record that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of

Meagan Horn, Esq. SPR26/0404 Page 7 February 17, 2026 Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). On January 27th, asserting the attorney-client privilege, the Office stated, “…the withheld document is exempt from disclosure under the attorney-client privilege because it is a confidential communications between an Assistant District Attorney and a member of the District Attorney’s staff conveying legal advice.” Based on the Office’s response, I find that the Office has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Office must clarify that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such, that the communications were made in confidence, and that the privilege as to these communications has not been waived. Further, the Office is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Conclusion Accordingly, the Office is ordered to provide Mr. Goldberger 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. Goldberger 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: Benjamin Goldberger