Taylor, Jonathan v. Office of the District Attorney - Plymouth District (SPR 20150605)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords December 4, 2015 SPRlS/605 Ms. Audrey Anderson, Esq. Office of the District Attorney - Plymouth District 32 Belmont Street, P.O. Box 1665 Brockton MA 020303-1665 Dear Attorney Anderson: I have received the petition of Jonathan Taylor appealing the response of Office ofthe District Attorney -Plymouth District (DAO) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Taylor requested copies ofDAO records in which he's identified. The DAO informed Mr. Taylor that some of the requested information is not public citing to Exemptions (a), (c), (d) and (f) of the Public Records Law. Over the course of several correspondences the DAO also provided Mr. Taylor with separate fee estimates for the provision of the records responsive to his request. The basis of Mr. Taylor's appeal is that challenges the DAO's position that witness statements can be withheld. Mr. Taylor also challenges the reasonableness of the DAO fee estimates. 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). Witness Statement Please note that Mr. Taylor's personal status in the matter in question 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). The DAO explained that it would withhold or redact portions of the requested records pursuant to Exemption (f) of the Public Records Law. Exemption (f), the so-called investigatory exemption, allows investigatory officials to withhold: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Audrey Anderson, Esq. SPR15/605 Page Two December 4, 2015 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). This exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). Therefore, a custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. 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). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. Witness Information and Testimony As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters they have witnessed. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). The disclosure of the names of voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of witnesses and complainants. In addition, any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness, may be withheld from disclosure. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983)

Ms. Audrey Anderson, Esq. SPR15/605 Page Three December 4, 2015 Accordingly, the DAO may permissibly withhold the witness statements and I will consider this portion of the appeal closed. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate ofthe lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). Fee Estimate It is unclear from Mr. Taylor's petition whether there are any outstanding records that have not been provided which would incur a cost for production. Please provide Mr. Taylor with a written, good faith estimate, consistent with the Public Records Law, the Regulations and this Determination for the balance of any outstanding issues related to his request. G. L. c. 66, § lO(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, you must provide the responsive records. A copy of any such response must be provided to this office. It is preferable to sen an electronic copy of this response to this office at pre@sec.state.ma.us. cc: Mr. Jonathan Taylor