RAHIMAH RAHIM vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT.

LOWY, J. During the course of investigating a fatal shooting by Federal and State law enforcement officials, the office of the district attorney for the Suffolk district (district attorney) requested and received assorted materials related to the incident from the Federal Bureau of Investigation (FBI). We now decide whether these materials qualify as public records under G. L. c. 66, § 10 (a), of the Massachusetts public records law (public records law) and, if so, whether they are exempt from disclosure under either G. L. c. 4, § 7, Twenty-sixth (a) (exemption [a]), or G. L. c. 4, § 7, Twenty-sixth (f) (exemption [f]). [Note 2]

Background. In June 2015, the FBI and the Boston police department jointly investigated Usaamah Rahim for suspected ties to the terrorist organization, the Islamic State of Iraq and the Levant (ISIL). Among its various terrorist activities, ISIL had encouraged followers to target and kill members of law enforcement in the United States. In response to evidence that Rahim was planning imminent acts of violence against members of law enforcement, surveilling officers from the joint investigation approached him in a Boston parking lot. Rahim, carrying a large knife, walked toward the officers. After he failed to comply with orders to drop the knife, the officers fired their service weapons at Rahim, killing him.

The district attorney then opened an investigation into Rahim's death. To aid in this effort, the FBI provided various materials (FBI materials) to the district attorney. The FBI delivered the materials accompanied by a letter asserting that the materials remained FBI property, were being loaned temporarily to the district attorney, and were not to be disclosed upon a Massachusetts public records law request. The district attorney concluded its investigation, determining that the officers had acted lawfully.

In 2017, Rahimah Rahim, Rahim's mother, [Note 3] filed a public records request seeking documents relating to Rahim's death. The district attorney provided Rahimah with 783 pages of documents, 373 photographs, and unedited surveillance footage from the

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investigation, but denied her access to all the FBI materials. Rahimah then sued the district attorney in the Superior Court, seeking a declaration that the FBI records were public records that must be produced under G. L. c. 66, § 10. [Note 4] After the parties filed cross motions for summary judgment, the district attorney provided an index listing brief descriptions of each item of the FBI materials, along with brief explanations of why each was being withheld. Additionally, the United States Attorney for the District of Massachusetts filed a statement of interest on behalf of the FBI, arguing that the FBI materials should not be disclosed under the Massachusetts public records law.

The judge granted the district attorney's motion for summary judgment, holding that the FBI materials were not public records because they were not "made or received by" the district attorney as that phrase is used in G. L. c. 4, § 7, Twenty-sixth, the statute that defines "public records" in the Massachusetts public records law. See G. L. c. 66, § 10. Additionally, the judge concluded that even if the FBI materials were public records, they were exempt from disclosure as "investigatory materials" under exemption (f). [Note 5] Rahimah appealed. We granted her application for direct appellate review.

We now hold that the FBI materials qualify as "public records" under the public records law; that the materials do not qualify for exemption (a); and that some of the materials qualify for exemption (f), but the rest must be remanded to determine whether exemption (f) applies.

Discussion. "Where the parties have cross-moved for summary judgment, we review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the unsuccessful opposing party and drawing all permissible inferences and resolving any evidentiary conflicts in that party's favor, the successful opposing party is entitled to judgment as a matter of law." Dzung Duy Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 448 (2018).

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1. Public records. Two statutes primarily govern public records requests. General Laws c. 66, § 10 (a), of the public records law requires State governmental entities to provide access to "public records" upon request. [Note 6] 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 (emphasis added). The district attorney maintains, and the Superior Court held, that "received" implies ownership and, therefore, the FBI materials are not public records under G. L. c. 4, § 7, Twenty-sixth, because the materials belong to the FBI, not the district attorney. [Note 7] We disagree.

"A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result." Sullivan v. Brookline, 435 Mass. 353, 360 (2001). See also Plymouth Retirement Bd. v. Contributory Retirement Appeals Bd. 483 Mass. 600, 604 (2019), quoting Matter of E.C., 479 Mass. 113, 118 (2018) ("When conducting statutory interpretation, this court strives 'to effectuate' the Legislature's intent by looking first to the statute's plain language").

"Receive" means "to take possession or delivery of"; it does not mean own. [Note 8] Webster's Third New International Dictionary 1894 (1993). See also Black's Law Dictionary 1522 (11th ed. 2019)

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(defining "receive" as "To take [something offered, given, sent, etc.]; to come into possession of or get from some outside source"). Not only would construing "received" to be synonymous with "owned" contravene the plain meaning of the word, it would be inconsistent with the purpose of the public records law: to provide "the public broad access to governmental records." Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-383 (2002) (Worcester Tel.). If every public records request also required the requestor to conduct something akin to a title search, then the public would necessarily be stymied in its quest for greater government transparency. By using the word "received" in G. L. c. 4, § 7, Twenty-sixth, it is clear that the Legislature did not intend a result so starkly at odds with the purpose of the law.

Consequently, because the district attorney received the FBI materials, the materials are "public records" under G. L. c. 4, § 7, Twenty-sixth. Cf. Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 755 (2006) (reports created by private university would qualify as public records "[o]nce in the custody of the department of State police").

The FBI's assertion that the materials are Federal property and outside the purview of the public records law does not alter this conclusion. The public records law does not vest agencies with the authority to determine the statute's scope by making interagency agreements. See Champa v. Weston Pub. Sch., 473 Mass. 86, 98 (2015), quoting Ackerly v. Ley, 420 F.2d 1336, 1339 n.3 (D.C. Cir. 1969) ("It will obviously not be enough for the agency to assert simply that it received the file under a pledge of confidentiality to the one who supplied it"). That duty is the province of the supervisor of public records, the Superior Court, and, ultimately, this court. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 615 (1993). See also Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006), citing Cleary v. Cardullo's, Inc., 347 Mass. 337, 343-344 (1964) ("the duty of statutory interpretation rests in the courts").

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2. Exemptions. Although the definition of "public records" under G. L. c. 4, § 7, Twenty-sixth, is intentionally broad, [Note 9] the statute exempts twenty-one categories of information from disclosure. See G. L. c. 4, § 7, Twenty-sixth (a)-(v), as amended through St. 2019, c. 41, § 4. Because the statute presumes disclosure, these exemptions "must be strictly and narrowly construed." Boston Globe Media Partners, LLC v. Department of Pub. Health, 482 Mass. 427, 432 (2019), quoting Globe Newspaper Co., 439 Mass. at 380. "Despite this general presumption, the decision whether an exemption to disclosure applies requires careful case-by-case consideration." WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990). Here, the district attorney claims that both exemption (a) and exemption (f) apply to the FBI materials.

a. Exemption (a). A public record custodian may invoke exemption (a) to prevent disclosure in two scenarios. First, exemption (a) exempts a custodian from disclosing public records "where another statute -- the 'exempting statute' -- expressly prohibits disclosure." Boston Globe Media Partners, LLC v. Department of Criminal Justice Info. Servs., 484 Mass. 279, 282 (2020). Second, exemption (a) applies "where the exempting statute protects the record from disclosure by 'necessary implication,' such as where the exempting statute prohibits disclosure as a practical matter." Id. The district attorney argues that both the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Federal Privacy Act, 5 U.S.C. § 552a qualify as exempting statutes under exemption (a). Neither does.

Much like the Massachusetts public records law, FOIA creates a framework for public access to various materials in the possession of Federal agencies. See 5 U.S.C. § 552. Because FOIA does not even apply to State agencies, the statute cannot serve as the

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basis for an exemption (a) claim. [Note 10] See 5 U.S.C. § 552(f) (defining agencies within scope of FOIA). See also Sykes v. United States, 507 Fed. Appx. 455, 463 (6th Cir. 2012) ("FOIA does not apply to state entities"); Grand Cent. Partnership v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999) ("it is beyond question that FOIA applies only to federal and not to state agencies"); Phillip Morris Inc. v. Harshbarger, 122 F.3d 58, 83 (1st Cir. 1997) (FOIA "applies only to federal executive branch agencies"); St. Michael's Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981) (FOIA's definition of agency "does not encompass state agencies or bodies").

Unlike FOIA, the Privacy Act bars Federal agencies from disclosing certain records "maintained on individuals" unless an exemption applies. [Note 11] See 5 U.S.C. § 552a(b). Yet this prohibition applies only to Federal agencies like the FBI, not State agencies like the district attorney's office. [Note 12] See 5 U.S.C. § 552a(a)(1)

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(defining agencies within scope of Privacy Act). See also Spurlock v. Ashley County, 281 Fed. Appx. 628, 629 (8th Cir. 2008) (noting that Privacy Act applies to Federal agencies only); Schmitt v. Detroit, 395 F.3d 327, 331 (6th Cir. 2005), cert. denied, 546 U.S. 1138 (2006) ("The fact that the Privacy Act contains a section that defines the term 'agency' as including only those agencies that fall under control [of] the federal government, coupled with a legislative history that supports such a reading of its scope, forces us to conclude that . . . the Privacy Act applies exclusively to federal agencies"); Polchowski v. Gorris, 714 F.2d 749, 752 (7th Cir. 1983) (Privacy Act "applies only to agencies of the United States Government"); St. Michael's Convalescent Hosp., 643 F.2d at 1373 (Privacy Act's definition of agency "does not encompass state agencies or bodies"); Gamble v. Department of the Army, 567 F. Supp. 2d 150, 154 (D.D.C. 2008) (both Privacy Act and FOIA "are limited to entities deriving their authority from the federal government"). Consequently, neither the Privacy Act nor FOIA can be read as an exempting statute as contemplated by exemption (a), and the district attorney has not cited any other authority that so qualifies. The district attorney thus cannot claim exemption (a).

b. Exemption (f). Exemption (f) exempts from disclosure "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, Twenty-sixth (f). Among the reasons for exemption (f) are "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 v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).

Depending on the contents of a particular record, exemption (f) may cover only certain aspects of the record, see Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 (1979), or encompass "a certain carefully defined class of documents" in its entirety,

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Bougas, 371 Mass. at 65. Furthermore, because the nature of certain records' contents may require continuing secrecy, the end of an investigation does not automatically terminate the applicability of exemption (f). Id. at 63.

i. Burden of proof. As a general matter, one might assume that disclosing materials concerning an investigation into an individual's ties to an international terrorist organization known for targeting law enforcement officials would "be so prejudicial to effective law enforcement that it is in the public interest to maintain secrecy." [Note 13] Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 859 (1995). The requisite legal inquiry as to whether exemption (f) applies, however, does not resolve at this level of generality; the public records law "does not provide a blanket exemption for investigatory materials assembled by police departments." WBZ-TV4, 408 Mass. at 603. Instead, the burden is on the district attorney "to prove, by a preponderance of the evidence, that such record or portion of the record may be withheld in accordance with state or federal law" before a court may conclude that exemption (f) applies. G. L. c. 66, § 10A (d) (1) (iv). As the record stands, it remains unclear whether the district attorney has satisfied that standard with respect to all the FBI materials.

There remains understandable confusion concerning the burden of proof that a record custodian bears when claiming an exemption from the public records law. In concluding that the FBI materials fell within exemption (f), the motion judge reasoned that the district attorney's index offered "specific proof" of the prejudicial effect that the materials' release would have on law enforcement. "Specific proof" is not mentioned in G. L. c. 66, § 10A. Rather, that language comes from the statute's predecessor, G. L. c. 66, § 10 (c), as amended through St. 2010, c. 256, §§ 58-59 ("the burden shall be upon the custodian to prove with specificity the exemption which applies" [emphasis added]). Part of a broader revision of the public records law, G. L. c. 66, § 10A (d) (1) (iv), replaced "with specificity" with

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"by a preponderance of the evidence" as the standard the custodian must prove to claim an exemption. We now compare these two standards to elucidate the meaning of G. L. c. 66, § 10A (d) (1) (iv).

In People for the Ethical Treatment of Animals, Inc. v. Department of Agric. Resources, 477 Mass. 280, 281 n.3 (2017), we noted that it appeared that the revisions to the public records law "would not significantly alter our analysis as to the exemptions and their application." After reviewing the legislative history, we stand by this conclusion. [Note 14] Our cases that were decided prior to this revision thus remain instructive on the level of detail that a record custodian must provide to claim exemption (f).

ii. Sufficiency of the index descriptions. In order for a record custodian to prove by a preponderance of the evidence that a record is exempt under exemption (f), the custodian must provide "insight as to the confidential nature of the contents." Matter of a Subpoena Duces Tecum, 445 Mass. 685, 690 (2006). See Worcester Tel., 436 Mass. at 386 ("What is critical is the nature or character of the documents, not their label"). Recognizing that exempt materials will necessarily contain sensitive information, the record custodian need only provide enough evidence about the nature and scope of the materials' contents for a court to infer that disclosure would more likely than not prejudice effective law enforcement. See Bougas, 371 Mass. at 62. Evidence about the materials' nature and scope can be provided "through the use of an itemized and indexed document log in which the custodian sets forth detailed justifications for its claims of exemption." Worcester Tel., 436 Mass. at 384. "Where the applicability of an exemption is questionable, in camera inspection by a judge may be appropriate." [Note 15] Id.

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To illustrate the required level of detail, we examine several entries from the district attorney's index. [Note 16] Entry two states in relevant part: "Signed/Sworn statement of a Special Agent of the Federal Bureau of Investigation concerning actions taken and observations made regarding the shooting that occurred on June 2, 2015, dated June 4, 2015 -- 5 pages. The statement includes a one page annotated aerial photograph." Although succinct, this description demonstrates that the identified materials contain the identity of at least one law enforcement official by name via the signature, descriptions of the official's "observations, hypotheses, and interim conclusions" about the shooting, and an aerial photograph presumably related to these observations. Bougas, 371 Mass. at 62.

Likewise, entry seventeen describes a "Report from a Federal Bureau of Investigation Assistant Inspector-in-Place concerning a memorandum of understanding, deputation, and cost sharing agreements, dated June 5, 2015, and labeled 'Deliberative Process Privileged Document' -- 1 page." From the references to deputation [Note 17] and cost sharing agreements, a court may reasonably infer that the materials detail the joint investigation's internal

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organization, facts about which reveal highly sensitive investigative techniques or procedures. In short, entries two, seventeen, and other analogous entries [Note 18] provide a court with sufficient detail to conclude that disclosure of these materials would more likely than not prejudice effective law enforcement, and thus qualify for exemption (f).

In contrast, entry thirty-six is described as "Report from a Federal Bureau of Investigation Assistant Inspector-in-Place concerning copies of reports received, dated June 5, 2015 and labeled 'Deliberative Process Privilege Document' -- 3 pages." The entry provides a court with little insight into why it should qualify for exemption (f). The label "Deliberative Process Privilege Document," without more, gives no guidance as to how disclosure would prejudice effective law enforcement; mere repetition of the word "report" ("Report . . . concerning copies of reports") fails to add anything about the nature and scope of the materials' contents. [Note 19] Finally, at the far extreme of examples is entry twenty-two: "Hand-drawn diagram, dated June 2, 2015 -- 1 page." From this description, a court is able to discern little.

Conclusion. Entries one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, nineteen, twenty, twenty-one, and twenty-four of the district attorney's index fall within exemption (f) and need not be turned over. We remand the case to the Superior Court for determination of whether exemption (f) applies to the following entries in the district attorney's index: eighteen, twenty-two, twenty-three, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty-seven, thirty-eight. On remand, the district attorney must provide a revised index that catalogues these entries in a manner inclusive of enough details about the nature and scope of the materials to determine whether each entry falls within exemption (f) by a preponderance of evidence. See G. L. c. 4, § 7, Twenty-sixth (f). Should the district attorney determine that it is not possible to provide fuller descriptions of any specified entry without disclosing information as

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would defeat the purpose of claiming exemption, then the district attorney may seek in camera review of the relevant materials.

So ordered.