Mullen, Jr., Esq., Jay v. Director, Office of Media Relations (SPR 20140203)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April10, 2014 SPR14/203 Mr. Jay M. Mullen, Jr., Esq. Mullen & McGourty, P.C. Six Edgerly Place, 3rd Boston, MA 02116 Dear Mr. Mullen, Jr., Esq.: I have received your letter appealing the response of the City of Boston- Boston Police Department (Department) to your request for records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of records regarding the Department's investigation into the accident that occurred on the Meridian Street Bridge in Boston. The Department's Office of the Legal Advisor denied your request pursuant to Exemption (f) of the Public Records Law. Exemption (f) Exemption (f) applies to: 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(26)(±) The general purposes of Exemption (f) include the avoidance of premature disclosure of the Commonwealth's case prior to trial and the prevention of disclosure of confidential techniques, procedures or sources of information. WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). 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. Chie[o{Police, 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. Confidential investigative techniques may OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Jay M. Mullen, Jr., Esq. SPR14/203 Page Two April10, 2014 also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). In an April4, 2014 telephone conversation Ms. Jennifer Sampson of the Office of the Legal Advisor confirmed to an attorney on my staff the investigation subject to the responsive records remains active and ongoing. Whereas the investigation into the incident remains ongoing, it is the finding of this office that the Department acted appropriately in withholding the requested records. Once the investigations conclude the records of the investigations must be released in accordance with the provisions of the Public Records Law. Accordingly, I will consider this appeal closed. The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). It may be preferable for you to access the responsive records through the judicial process given that un-redacted copies of the records could be made available to you. Shawn A. Williams Supervisor ofRecords cc: City Of Boston- Boston Police Department