Littlefield, Michelle v. Office of the District Attorney - Plymouth District (SPR 20150502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPRlS/502 Ms. Gail M. McKenna, Esq. Assistant District Attorney Plymouth County District Attorney's Office 32 Belmont Street Brockton, MA 02303 Dear Attorney McKenna: I have received the petition of Janet Hetherwick Pumphrey, Esq. appealing the response of the Plymouth County District Attorney's Office (DAO) to her agent, Diversified Corp. Solutions Inc.'s (Diversified) requests for public records. G. L. c. 66 § IO(b); see also 950 C.M.R. 32.08(2). Michelle Littlefield made the request to the Department of State Police (Department) on behalf of Diversified. Previous Determination Specifically, Ms. Littlefield requested copies of notes, results, intake forms, any and all documentation and evidence or other information regarding the recovery and testing of all weapons and shell casings involving specifically identified Firearm Identification numbers, Drugfire numbers and case numbers. This request was the subject of a previous appeal. See SPR13/243 Determinations of the Supervisor of Records (February 7, 2014; March 11, 2014; May 7, 2015). In my May 7 Determination, I ordered the DAO to provide Attorney Pumphrey with the requested records or provide an explanation, with specificity, how a particular exemption applies to each record. The DAO provided Attorney Pumphrey with a further explanation in a letter dated May 21, 2015. Attorney Pumphrey appealed the May 21 response. September 23, 2015 letter from Attorney Pumphrey By letter directed to this office dated September 23, 2015, Attorney Pumphrey indicates that she would like to supplement her original request to include additional case numbers. The DAO was copied on this letter. Whereas requests for records must be provided to the custodian OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Gail M. McKenna, Esq. SPR15/502 Page Two December 7, 2015 of the records prior to submitting an appeal to this office, I will not opine on the public status of the records sought in the September 23 letter at this time. 950 C.M.R. 32.08(2). Purpose ofrequest; identity ofrequester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Pumphrey's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the 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 while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). It should be noted that, in your response, you suggested that Attorney Pumphrey may be better served by seeking responsive records through the discover process. May 21 letter from DAO In the May 2lletter, the DAO claims the responsive records are exempt from disclosure pursuant to Exemptions (a), (c), and (f) as well as the CORI statute. G. L. c. 4, § 7(26)(a), (c), (f); G.L. c. 6, §§ 167-172. Attorney Pumphrey objects to these exemption claims as well as the DAO's position that it is the proper custodian of these records and not the Department. I will address these issues below. Proper custodian ofr ecords The DAO states the "request was appropriately referred to the [DAO] by the [Department], which merely holds our records on our behalf, for response, as per statute, generally G. L. c. 32, § 4. In that regard, the [Department] act in the nature of a secure storage facility, holding evidence and documents until needed, and not in its own right." Although you cite G. L. c. 32, § 4 to support this claim, another applicable statute is G. L. c. 3 8, § 4 which states the district attorney directs and controls homicide investigations. You state that the responsive records "pertain to or are evidentiary matters in at least one first degree murder case." As a result, I find the DAO is the proper entity to respond to this request because of its statutory authority to direct and control homicide cases.

Ms. Gail M. McKenna, Esq. SPR15/502 Page Three December 7, 2015 Exemption (f) The DAO claims the responsive records are exempt from disclosure under Exemption (f). Exemption (f) permits 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 not be in the public interest G. L. c. 4, §7 (26)(f) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may 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). 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.l8 (1979). You state that Attorney Pumphrey seeks "a variety of ballistics reports which may or may not link the use of particular guns between and among various individuals (i.e. community guns)." You further indicate that "[r]elease of these reports could create a grave risk of identifying these individuals, putting them and others in danger, instigating efforts to conceal or tamper with evidence, or eliminating the potential that, at an appropriate time, depending on the allegations in a new trial motion in this active case, that potential witness( es) will be candid and forthright rather than feel threatened and intimidated by the premature release of potentially sensitive information." You also explain that "public release of illegal gun ownership information creates a risk that those individuals so identified will be subject to threats, harassment, and the like from individuals who may believe they can obtain black-marked weapons, creating a public safety danger." This response by the DAO explains how disclosure of these records poses a risk to certain individuals, specifically those identified in the records and potential witnesses in current or future cases, because of the potential to link the use of guns to various individuals. Therefore, I find the DAO has met its burden to explain how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). As a result, I decline to opine on the DAO's Exemption (a) and (c) claim.

Ms. Gail M. McKenna, Esq. SPR15/502 Page Four December 7, 2015 cc: Ms. Janet Hetherwick Pumphrey, Esq.