Ibarguen, Esq., Diego v. Executive Office of Public Safety and Security - Department of State Police (SPR 20140110)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords March 13, 2014 SPR14/110 Mr. Diego Ibarguen, Esq. Hearst Corporation 300 West 57th Street New York, NY 10019-3792 Dear Mr. Ibarguen, Esq.: I have received your petition appealing the response of the Massachusetts Department of State Police (Department) to the public records request of your client Kristen Setera of WCVB-TV. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Setera requested copies of records pertaining to Department friendly fire investigations for the past three years. The Department denied her request pursuant to Exemptions (a), (c), and (f) ofthe Public Records Law. In the Department's January 31, 2014 response, Department Attorney Glenn M. Rooney infonned your client that after a full and thorough search of the Department's files it found only one record responsive to this request. Attorney Rooney denied the request explaining that the responsive record pertains to an active investigation of the U. S. Attorney's Office. Exemption (f), the "investigatory" exemption, pennits 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 hot be in the public interest G. L. c. 4, §7 (26)(f) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Diego Ibargi.ien, Esq. SPR14/110 Page Two March 13, 2014 There is no blanket exemption for records maintained by investigative officials. District Attorney for the Norfolk District v. Thomas J. Flatley, 419 Mass. 507, 512 (1995) (burden on custodian to prove that an exemption applies); WBZ-TV4 v. Dist. Att'y for the Suffolk Dist., 408. Mass. 595, 603 (1990). Rather, a case-by-case review is necessary to determine whether an exemption applies. Reinstein v. Police Comm'r of Boston, 378 Mass. at 281, 289-90 (1979). The general purposes of Exemption (f) include the avoidance ofpremature disclosure of the Commonwealth's case prior to trial and the prevention of disclosure of confidential techniques, procedures or sources of information. WBZ-TV 4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281, 290 n.18 (1979). The exemption is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). In a February 24, 2014 telephone conversation Attorney Rooney confirmed to an attorney on my staff that the U.S. Attorney's Office investigation and prosecution subject to the responsive record remains active and ongoing. Whereas the record subject to this request concerns an active and ongoing investigation, I find that the Department is acting within its discretion in withholding the requested record from disclosure pursuant to Exemption (f) of the Public Records Law. Supervisor of Records cc: Mr. Glenn M. Rooney, Esq.