Bradley v. Records Access Officer

100 Mass.App.Ct. 46

174 N.E.3d 1212

Adam James BRADLEY

v.RECORDS ACCESS OFFICER, DEPARTMENT OF STATE POLICE.

No. 20-P-419

Appeals Court of Massachusetts, Suffolk.

Argued May 20, 2021.

Decided July 19, 2021.

Adam Bradley, pro se.

Michael B. Halpin, Special Assistant Attorney General, for the defendant.

Rebecca S. Murray & Laurie Flynn, Special Assistant Attorney General, for Supervisor of Records, Office of the Secretary of the Commonwealth, amicus curiae, submitted a brief.

Present: Massing, Henry, & Ditkoff, JJ.

MASSING, J.

A convicted criminal has a statutory right to request public records concerning the crime he committed and to receive a response consistent with the public records law. The plaintiff, Adam James Bradley, appeals from an order dismissing his complaint alleging violations of the public records law, G. L. c. 66, and various other claims. The complaint alleged that the defendant, the records access officer (RAO) for the Department of State Police (department),¹ violated the public records law by ignoring Bradley's requests for records, as well as two orders issued by the Commonwealth's supervisor of records (supervisor) directing the RAO to respond. A Superior Court judge allowed the RAO's motion to dismiss for failure to state a claim, and a judgment dismissing the complaint entered. Because Bradley plausibly alleged violations of the public records law, we vacate in part the judgment, and remand the case for further proceedings.²

Background. Bradley is serving a life sentence for a murder committed in July 2012. As set forth in the complaint,³ he submitted three public records requests to the RAO, as permitted by G. L. c. 66, § 10, seeking documents related to the homicide he was convicted of committing. One of the requests also sought records concerning "the [r]ecent [c]orruption [r]egarding State troopers [s]tealing over time." He made the first request in September 2018.⁴ The RAO failed to respond. Bradley made the second request two months later.⁵ Another month passed without a response from the RAO.

Bradley petitioned the supervisor for relief in accordance with G. L. c. 66, § 10A (a ). See 950 Code Mass. Regs. § 32.08(1) (2016). The supervisor ordered the RAO to provide Bradley with a response to his records requests and to send a copy of the response to the supervisor's office. See 950 Code Mass. Regs. § 32.08(2) (2016). The RAO did not comply with the supervisor's order, and Bradley notified the supervisor of the noncompliance in two separate letters dated nearly two months apart. In the interim, Bradley made his third request for records.⁶ The supervisor issued a second order to the same effect as the first, which the RAO again ignored. Despite the RAO's noncompliance, the supervisor exercised her discretion not to refer the matter to the Attorney General, who has the authority to "take whatever measures ... necessary to ensure compliance." G. L. c. 66, § 10A (b ). See 950 Code Mass. Regs. § 32.09 (2016).

About one month after the supervisor issued the second order, Bradley filed a complaint in the Superior Court, in accordance with G. L. c. 66, § 10A (c ), alleging violations of the public records law. He also asserted a number of constitutional, statutory, and common-law claims arising from those violations.⁷ Bradley sought a declaration that the RAO's actions were unlawful, injunctive relief compelling the RAO to produce all records requested, damages, a jury trial, and attorney's fees and costs. See G. L. c. 66, § 10A (d ) (authorizing Superior Court to order injunctive relief and damages, creating presumption in favor of awarding reasonable attorney's fees and costs, but not providing for jury trials).

The RAO moved to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), arguing that all the records Bradley sought were "investigatory materials" exempt from disclosure under G. L. c. 4, § 7, Twenty-sixth (f ) (investigatory materials exemption). The RAO also argued that Bradley was not entitled to make a public records request for documents concerning his murder conviction because, as a criminal defendant, he had "a unique right of access by statutory, regulatory, judicial or other applicable means," under 950 Code Mass. Regs. §§ 32.06(1)(g), 32.08(1)(a) (2016).⁸ The judge agreed and allowed the motion.

Discussion. 1. Violations of public records law. Under G. L. c. 66, § 10 ( § 10 ), members of the public have a "right to access records and information held by State governmental entities." Attorney Gen. v. District Attorney for the Plymouth Dist., 484 Mass. 260, 262, 141 N.E.3d 429 (2020). The public records law promotes broad public access to governmental records. See Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-383, 764 N.E.2d 847 (2002). Governmental records are presumed to be public. See Attorney Gen., supra at 263-264, 141 N.E.3d 429. Although the Legislature has recognized numerous exemptions from the definition of public records, see G. L. c. 4, § 7, Twenty-sixth, "exemptions are strictly construed." Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614, 609 N.E.2d 460 (1993). An agency claiming an exemption has the burden of "prov[ing], by a preponderance of the evidence, that [the] record or portion of the record may be withheld in accordance with [S]tate or [F]ederal law." G. L. c. 66, § 10A (d) (1) (iv).

Bradley's complaint alleged blatant violations of the public records law. The RAO neglected to respond to any of Bradley's requests within ten business days, as required by G. L. c. 66, § 10 (a ), (b ). The RAO did not permit inspection, did not furnish Bradley with copies of the records requested, and did not provide Bradley with a written response citing applicable exemptions. See G. L. c. 66, § 10 (b ) ("The written response shall ... [iv] identify any 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"). The RAO did not "identify a reasonable timeframe ... not [to] exceed [fifteen] business days following the initial receipt of the request" in which it would produce records, G. L. c. 66, § 10 (b ) (vi), did not take the opportunity to "suggest a reasonable modification of the scope of the request," G. L. c. 66, § 10 (b ) (vii), and did not petition the supervisor for relief based on the burdensomeness of the requests, as permitted by G. L. c. 66, § 10 (c ).⁹ Furthermore, the RAO ignored two separate orders from the supervisor directing the RAO to respond. See 950 Code Mass. Regs. § 32.09 ("A records access officer shall promptly take such steps as may be necessary to comply with an order of the [s]upervisor").

2. Assertion of exemptions. The RAO asserts that dismissal was nonetheless appropriate because the materials sought by Bradley were "presently exempt from dissemination" under the investigatory materials exemption. This assertion is wrong as a matter of law. "There is no ‘blanket exemption' to public disclosure for records kept by police departments or for investigatory materials.... Rather, the applicability of an exemption to public disclosure must be determined on a case-by-case basis." Worcester Tel. & Gazette Corp., 436 Mass. at 383-384, 764 N.E.2d 847. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65, 354 N.E.2d 872 (1976). While "an exemption [may be] available for a certain carefully defined class of documents, such as police reports ..., an agency such as a police department cannot simply take the position that, since it is involved in investigatory work and some of its records are exempt under the [public records law], every document in its possession somehow comes to share in that exemption." Id.¹⁰

Nor could the motion judge properly conclude, based solely on the pleadings, that all the requested documents were entirely exempt from disclosure as investigative materials. "In order for a record custodian to prove by a preponderance of the evidence that a record is exempt under [ G. L. c. 4, § 7, Twenty-Sixth (f )], the custodian must provide ‘insight as to the confidential nature of the contents.’ " Rahim v. District Attorney for the Suffolk Dist., 486 Mass. 544, 553, 159 N.E.3d 690 (2020), quoting Matter of a Subpoena Duces Tecum, 445 Mass. 685, 690, 840 N.E.2d 470 (2006). The RAO must provide the judge with "enough evidence about the nature and scope of the materials' contents" for the judge to determine whether the exemption applies. Rahim, supra. Such evidence may be included in an itemized, indexed document log; in some cases in camera inspection may be required. See id. ; Worcester Tel. & Gazette Corp., 436 Mass. at 384-385, 764 N.E.2d 847.

3. Unique right of access. We also reject the RAO's assertion that Bradley was not entitled to request public records concerning his criminal case because he had "a unique right of access" to those records as a criminal defendant. The regulations promulgated by the supervisor in 2016 to implement the provisions of the public records law as amended by St. 2016, c. 121, provided that "a request for records in which an individual ... has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records." 950 Code Mass. Regs. § 32.06(1)(g). Likewise, the regulations stated that the provisions regarding appeals to the supervisor did not apply to requests "in which an individual ... has a unique right of access to the record through statutory, regulatory, judicial or other applicable means."

950 Code Mass. Regs. § 32.08(1)(a).¹¹

Based on "the plain language of the regulation," Theophilopoulos v. Board of Health of Salem, 85 Mass. App. Ct. 90, 101, 5 N.E.3d 1245 (2014), we interpret the references to "a unique right of access" as stating only that the procedures of public records law do not apply to...