Simpson, Neal v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150573)

The Commonwealth ofMassachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 5, 2015 SPRlS/573 Ms. Jenniffer P. O'Neil, Esq. Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney O'Neil: I have received the petition ofNeal Simpson, on behalf of The Patriot Ledger, appealing the response of the Massachusetts Department of State Police (Department) to his May 15, 2015 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Simpson requested "copies of all State Police reports, including accident reports, related to a May 9, 2015 motor vehicle crash on Route 28 in Milton that resulted" in the death of a specifically identified person. Failure to meet timeliness requirement ofP ublic Records Law In a June 26, 2015 email you responded to Mr. Simpson's request. In that email you referenced a "May 20, 20 15" which was not provided to this office. In referring to that letter you indicated the "department is in receipt" of his request; therefore, it is likely that this was merely an acknowledgment. The substantive response was not provided until June 26,2015. The Department's substantive response is dated June 25, 2015, forty-two days after Mr. Simpson's request. Under the Public Records Law and the Access Regulations (Regulations) a record custodian must comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (10) calendar days. G. L. c. 66, § lO(a); 950 C.M.R. 32.05(2) .. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The May 20 response by the Department, acknowledging receipt of a request, does not satisfy this requirement. The Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Jenniffer P. O'Neil, Esq. SPR15/573 Page Two October 5, 2015 Failure to respond with specificity to a request for public records In your June 26 letter you stated that while you had "reached out to the various sections to compile the responsive material," such a review had not yet occurred. You further stated that "[t]o date, I have not yet received the finalized reports associated with this incident and it is my understanding that this matter remains the subject of an on-going investigation." As such, you denied Mr. Simpson's request, citing the investigatory exemption to the Public Records Law. G. L. c. 4, § 7, cl. (26)(£). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 (c ); 950 C.M.R. 32.08(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Failure to meet burden of specificity to witlt!told records In response to a September 1, 2015 email query by a member of my staff you indicated your maintained your exemption claim. Exemption (f), the "investigatory" exemption, 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) 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.18 (1979). In your June 26 email you indicated

Ms. Jenniffer P. O'Neil, Esq. SPR15/573 Page Three October 5, 2015 that the identity of voluntary witnesses would be withheld pursuant to Exemption (f). This is a permitted application of the exemption. The time between the May 9, 2015 incident and our September 1, 2015 query is in excess of one-hundred days. The Department has provided no information either in its June 26 email denial or to this office to support the burden of specificity to justify continued withholding of records related to this incident. The mere existence of an incident and a claim of the investigatory exemption, without further information to support the exemption, is insufficient. See, generally Rafuse v. Stryker, 61 Mass. App. Ct. 595 (2004); 442 Mass. 1112 (2004) (further appellate review denied). Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Simpson with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Simpson a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, yo ust provide the responsive records. 1 1 cc: Mr. Neal Simpson