NOUIFY COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 2284-1997 RICARDO ARROYO v. CITY OF BOSTON MEM UM OF DECISION AND ORDER ON PLAINTIFE’S MOTION FOR PRELIMINARY INJUNCTION Ricardo Arroyo (Arroyo or Plaintiff), a Boston City Councilor and candidate for Suffolk County District Attorney, filed this case after the Boston Globe (Globe) published articles concerning a criminal complaint made against Arroyo in 2005. He asks the Court to order the City of Boston (Boston) to produce the investigative file related to that complaint, which is in the possession of the Boston Police Department (BPD). After hearing and review, and for the reasons stated below, the Motion is ALLOWED as set forth below. BACKGROUND Until recently, Arroyo was not aware that there was an investigative file in the possession of the BPD. The Globe contacted Arroyo in August 2022 and showed Arroyo portions of a BPD investigative file related to a dormant criminal complaint made sometime in 2005, The Globe thereafter published a story regarding the criminal complaint and investigation. The file that was shown to Arroyo was incomplete and did not contain the investigator's conclusions, “close out sheet,” or any documents that would indicate why the investigation did not proceed and the file was closed. It is unclear how the Globe obtained the portions of the investigative file; there is noinformation that it was provided by the complaining witness; and Arroyo infers that whoever made the disclosure did so to malign Arroyo's character and affect a political contest? At the hearing on this matter, Arroyo submitted, without objection, copies of his public records requests as well as copies of two Boston Globe articles concerning the 2005 matter. DL ION The standard governing the grant of preliminary injunctive relief is well known. A party secking a preliminary injunction must establish both a likelihood of success on the merits of the case and that irreparable harm will result from the denial of the injunction. See Tri-Nel Mgmt, Inc, v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001). Although, “[t]rial judges have broad discretion to grant or deny injunctive relief,” LightLab Imaging, Inc. v. Axsun Technologies, Inc,, 469 Mass. 181, 194 (2014), a preliminary injunction must be denied where money damages would adequately compensate for any harm a plaintiff may suffer before final judgment enters, no “matter how likely it may be that the moving party will prevail on the merits.” Packaging Indus. Group, Inc, v. Cheney, 380 Mass. 609, 621 (1980). “A plaintiff experiences irreparable injury if there is no adequate remedy at final judgment.” GTE Product Corp. v. Stewart, 414 Mass. 721, 724 (1993), Because “a] preliminary injunction is an extraordinary remedy never awarded as of right{,]” Winter v. Natural Resources Defense Council, Inc., 555 US. 7, 24 (2008), it “should not be granted unless the [moving ’ Hereinafter, the terms “victim” and “complaining witness” are used interchangeably to identify the person who made the 2005 complaint against Arroyo and are not intended to connote any opinion or finding, for or against, the veracity of the complaint. 21 take judicial notice that early voting for Suffolk County District Attorney has already ju ly voting, ty y begun. 2party] hafs] made a clear showing of entitlement thereto,” Student No. 9 v. Board of Educ, 440 Mass. 752, 762 (2004). Further, “an attempt to show irreparable harm cannot be evaluated in a vacuum,” instead, it must be evaluated as part of a “sliding scale analysis” in which “the predicted harm and the likelihood of success on the merits [are] juxtaposed and weighed in tandem.” Ross-Simons of Warwick, Inc. v. Baccarat, Inc, 102 F.3d 12, 19 (1st Cir. 1996). “Nonetheless, if the judge is convinced that failure to issue the injunction ‘would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party.” Abner A, v. Massachusetts Interscholastic Athletic Ass'n, No. SJC-13224, 2022 WL 3711411, at “5 (Mass. Aug. 29, 2022) (internal quotations omitted). “What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits.” I Packaging Industries Group. Inc, 380 Mass. at 616. Finally, “[w]here a party seeks to enjoin governmental action, the judge also quoting must ‘determine that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public.” Garcia v. Department of Hous. & Community Dev,, 480 Mass. 736, 747 (2018), quoting Loyal Order of Moose, Inc, Yarmouth Lodge # 2270 v. Board of Health of Yarmouth, 439 Mass. 597, 601 (2003) and Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). A. Likelihood of Success on the Merits Arroyo seeks production of the complete file related to the BPD’s investigation of a criminal complaint involving Arroyo in 2005, including the incident report(s), charging decisions, investigation conclusions, and any case summary or close out sheetsthat supported rejecting the claims of the complaining witness. Arroyo seeks as well an Order that the BPD preserve and not destroy, transfer, or convey all documents in the file, all requests by the complaining witness or her attorney relating to dissemination ‘Two statutes primarily govern the production of public records. General Laws ch, 66, § 10 (a), of the public records law requires State governmental entities to provide access to “public records” upon request. Rahim v. Dist. Att'y for Suffolk Dist,, 486 Mass. 544, 547 (2020). The definition of “public records” is provided in G. L.c. 4, §7, ‘Twenty-sixth, and includes all “documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee” of any Massachusetts governmental entity. Id., quoting G. L.. c.4, §7, Twenty-sixth. The statute exempts twenty-one categories of information from disclosure. See G. L. c. 4, §7, ‘Twenty-sixth (a)-(v). “Because the statute presumes disclosure, [ ] exemptions must be strictly and narrowly construed.” Rahim, 486 Mass. at 549 (citations and internal quotations omitted). “[T]he decision whether an exemption to disclosure applies requires careful case- by-case consideration.” Id. Further, the burden is on the government to prove by a preponderance of evidence that an exemption applies. [d. at 552, citing G. L. c. 66, § 10A, (d) (1) (iv). Accord Rafuse v, Stryker, 61 Mass. App. Ct. 595, 561 (2004). “What is critical is the nature or character of the documents, not their label.” Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002). 1, Information Exempted by Statute General Law ch. 4, § 7, Twenty-Sixth (a) removes from the definition of “public records” any records “specifically or by necessary implication exempted from disclosure by statute.” Plaintiif acknowledges that G. L. c. 41, § 97D provides that “reports of rape and sexual assault . . . and all communications between police officersand victims of such offenses or abuse shall not be public reports and shall be maintained by police departments in a manner which will assure their confidentiality.”* Boston maintains that the statute precludes production of the investigative file in its entirety, with the possible exception of certain Registry of Motor Vehicle records unrelated to the complaining witness. Ido not agree. The intent of G. L. ¢. 41, § 97D is to protect and foster “sensitivity for the [] victim's plight.” Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 858 n.9, vacated on other grounds 449 US. 894 (1980). “However, a statutory requirement that the report be confidential does not mean that any disclosure whatsoever is prohibited.” Doe v. Bright Horizons Children's Centers, Inc, No. C.A. 96-6151, 1998 WL 408965, at *3 (Mass. Super. July 2, 1998). Further, the plain language of the statute is limited to reports of sexual assault or abuse and communications between the victim and the police, ‘The privacy concerns of the victims of alleged acts of sexual assault are undoubtedly significant and weighty. Nonetheless, “[all police records ... whether or not they are public records, are subject to being summoned before a proper tribunal in accordance with established rules of law.” Boston Police Superior Offi of Bos, 414 Mass. 458, 466 (1993), quoting Town Crier, Inc, v. Chief of Police of Weston, 361 Mass. 682, 691 (1972). This Court has previously concluded that the privacy concerns of victims of alleged acts of rape or sexual assault can be protected through redacting the discoverable documents to conceal the names, addresses, social security numbers, 3 General Law ch. 265, § 24C similarly provides that “the portion of the records of a court or any police department .. . which contains the name of the victim in an arrest, investigation, or complaint for rape or assault with intent to rape . .. shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted.” 5familial relationships, and other personal identifying information. Roman Cath. Bishop of Springfield v. Travelers Cas, & Sur. Co., No. 050602, 2008 WL 650392, at *3 (Mass. Super. Jan. 7, 2008); Doe v. Bright Horizons Children's Centers, Inc, No. C.A. 96-6151, 1998 WL 408965, at “3 (Mass. Super. July 2, 1998). Boston has not shown why a similar approach would be inadequate here. Notably, the Domestic Violence Guidelines issued by the Commonwealth of Massachusetts Executive Office of Public Safety and Security in 2017 makes clear that, although reports of victims of rape or sexual assault are not public records, the remainder of a police department file can be reviewed and redacted in response to other requests. Finally, based upon my in camera review, many of the documents contained in the BPD file lack or substantially lack information protected by G. L. ¢. 41, § 97D. Once the complaining witness's identifying information and statements are redacted, the remaining information does not implicate additional privacy concerns, particularly since the nature of the allegations, at least in part, have already been widely publicized. 2, Privacy Exemption Boston argues next that the material is subject to the privacy exemption in G. L. c. 4, §7, Twenty-sixth (c) which excludes “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy[.|’ I consider that exemption to protect the same interests protected by G. L. c. 41, § 97D and agree that the privacy interests of the complaining victim alleging rape or sexual assault is strong. Here, however, where the information about the allegation is already in the public domain, indeed the complaining witness has spoken publicly to the press, I discern, and Boston has offered, no additional risk of invasion of privacy so long as all identifying information and all statements of the complaining witness are redacted. See Boston Globe Media Partners, LLC v.Department of Pub, Health, 482 Mass. 427, 439 (2019) (“Where the second category under exemption (c) is implicated, a court should first determine whether there is a privacy interest in the requested records. If there is not, then the requested material does not fall under exemption (c)"). 3. Investigative Materials Boston argues as well that the files sought are exempted from public records as. investigatory materials under G. L. c. 4, § 7, Twenty-sixth (f), ‘That subsection excludes: lInvestigatory 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. ‘The public policy concerns underlying this exemption include “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.” Rahim, 486 Mass. at 551, quoting Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). While the end of an investigation does not automatically terminate the exemption, Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1977), the fact that the case at issue was closed and dates back more than sixteen years weighs against the likelihood of prejudice to law enforcement. Indeed, Boston has not explained “how documents relating to closed investigations of sexual [assault]” dating back many years “contain confidential materials or investigative techniques.” Roman Cath, Bishop of Springfield, No. 050602, 2008 WL 650392, at *2, citing Matter of a Subpoena Duces ‘Tecum, 445 Mass. 685, 690 (2006). Likewise, Boston “has not argued specifically how 7turning over to [Arroyo] the requested documents would discourage other witnesses from coming forward, if the identity of the victim| ] ... is] concealed through redactions.” Roman Cath. Bishop, 2008 WL 650392, at *2, citing The Republican Company v. Appeals Court, 442 Mass. 218, 226-227 (2004). As to unredacted information, preventing disclosure of information that, at least in part, is already known, does not further the purpose of the exemption. In re Subpoena Duces Tecum, 445 Mass. 685, 691 (2006). find that Arroyo has demonstrated a likelihood that he is entitled to the information sought, excluding personal identifying information of the victim and the reports or statements of the complaining witness to the police. B. [rreparable Harm Arroyo alleges that he will suffer irreparable harm because the Primary election for Suffolk County District Attorney is scheduled for Tuesday, September 6, 2022. The publication of the allegations against Arroyo in the public record undoubtedly impugn his character and have the ability to affect the outcome of that race. Further, while he remains a member of the City Council, Arroyo has been removed from his leadership positions by the City Council President which Arroyo argues impacts the ability of his constituents to receive adequate representation in the City Council. Boston presents virtually no argument to rebut this harm other than asserting that it is speculative whether the requested materials will prevent further harm. Itis clear that no money damages can repair the harm should the requested material contain information that would aid Arroyo in his current elected position or in connection with the election. In light of the apparent and immediate impact on an ongoing Primary election and Arroyo's ability to serve effectively in his current role, I find that Arroyo will suffer |irreparable harm if he is denied the requested materials to respond to the public allegations. C. Public Interest As this matter seeks to enjoin government action, I must also weigh whether granting Arroyo's requested relief will promote the public interest or, alternatively, adversely affect the public. Garcia, 480 Mass. at 747. At issue here are two compelling but, nonetheless, competing public interests. First, the public has a substantial and compelling interest in the integrity of elections and the officials elected as representatives and as chief law enforcement officers. See Commonwealth v. Lucas, 472 Mass. 387, 398 (2015); Anderson v. Boston, 376 Mass. 178, 193(1978); Cepulonis v. Secretary of the Commonwealth, 389 Mass. 930, 935-936 (1983). Arroyo is a sitting City Council member and a candidate for Suffolk County District Attorney in an election in which primary voting has begun and will conclude in three business days, The materials requested relate to allegations of a serious offense, which, following investigation, the relevant authorities determined did not warrant arrest or prosecution. The weight of the public interest in the information in question is substantial, Second, there are recognized and grave public interests in protecting the victims of sexual assault and bringing assailants to justice. Commonwealth v. Jones, 472 Mass. 707, 722. (2015). The Legislature has sought to advance these interests through various measures which seek to encourage reporting and also protect complainants of sexual assault from additional trauma as the psychological scarring caused by the crime, which may be more damaging than the physical invasion itself. Id.; Commonwealth v. Fuller, 423 Mass. 216, 223 (1996), abrogated on other grounds by Commonwealth v, Dwyer, 448 Mass. 122 (2006). General Law ch. 41, § 97D, specifically embodies these efforts byrequiring that the identities of such reporting victims and the information provided to the police remain confidential. I recognize that, to the dismay and consternation of the complaining witness, the illegal disclosure and subsequent dissemination of such confidential information precipitated this action and predictably resulted in the very harm the statute was intended to prevent. Neither the complaining witness nor Arroyo appear to have had any involvement in the partial disclosure of the investigation file. Nonetheless, and regrettably, I lack a remedy to undue the harm of the original disclosure. ‘The parties agree that the facts of this matter are unprecedented. Given the illegal and illicit disclosure and proximity to the election, the likelihood of this factual scenario recurring is virtually nil. I must, therefore, consider the public interests as stated in G. L. c. 41, § 97D and the complaining witness's interests with the knowledge that a substantial amount of information has already, albeit apparently illegally, been publicized.4 I conclude that the public interests will be served by requiring production of the 005 investigative file, except for those materials specifically protected by G. L. c. 41, § 97D which consist of the complaining witness's identifying information and statements and reports to the police, which shall be redacted or withheld from production as specifically set forth in the Order below. + A person who violates the statute “shall be punished by imprisonment for not more than 1 year or by a fine of not more than $1,000, or both such fine and imprisonment.” G.L.e41,§97D. 10ORDER For the foregoing reasons, and having carefully reviewed the 2005 investigation submitted in camera and under seal, the Court enters the following ORDER: 1. The City of Boston through the Boston Police Department shalll provide all documents contained the BPD’s 2005 investigative file to Arroyo by 2:00 p.m. Friday, September 2, 2022 redacted to conceal the name, address, social security number, familial relationships, and other personal identifying information of the complaining witness subject only to the following exceptions and additional redactions: a: February 17, 2006, 4:01 p.m. email to be redacted to remove what the victim stated; b. Narrative portion of BPD Incident Report to be redacted to remove what victim reported or said; ¢. The entire Follow Up Investigation Report dated Nov. 9, 2005 (two copies in file) not to be disclosed; d. The entire Sexual Assault Unit Case Update dated November 3, 2005 (two ~ copies in file) not to be disclosed; e. The RMV report for the complaining witness not to be disclosed; f, Incident Description in School Police Report redacted to remove what victim reported; g. Confidential Log Sheet for Reporting Incident of Sexual Assault Where Student is Victim redacted to remove what student reported; 2, The City of Boston and Boston Police Department shall preserve all documents, data, and digital information memorializing access to the investigative file; 3, The City of Boston and Boston Police Department shall preserve all written requests by the complaining witness or her attorney, if such exist, to disseminate or obtain the investigative file; and 4, The City of Boston and Boston Police Department shall not destroy, convey, or transfer documents, data, or digital information memorializing access to the investigative file. September 1, 2022 11