Shaffer, Maya v. Office of the District Attorney - Suffolk County (SPR 20150684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 10, 2015 SPRlS/684 Ms. Dara Z. Kesselheim, Esq. Assistant District Attorney Suffolk County Office of the Chief Legal Counsel One Bullfinch Place Boston, MA 02114-2997 Dear Attorney Kesselheim: I have received the petition of Maya Shaffer of the Bay State Examiner appealing the response of the Suffolk County District Attorney's Office (DAO) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer requested copies of four categories of records related to a specific City of Chelsea police officer. Previously closed appeal related to this request (SPRJS/690) Ms. Shaffer requested these records on August 4, 2015. The DAO provided a response to this request in a letter dated August 10, 2015. Ms. Shaffer appealed the substantive nature of this response in an email to this office dated August 14, 2015. This current appeal was opened as a result ofthe August 14 email from Ms. Shaffer. Subsequent to the opening of this appeal, Ms. Shaffer sent an August 26, 2015 email to this office stating she had not received a response to her August 4, 2015 request. As a result of the August 26 email from Ms. Shaffer, this office opened a new appeal (SPR15/690) based on a nomesponse. SPR15/690 was closed on October 19,2015. See SPR15/690 Determination ofthe Supervisor ofRecords (October 19, 2015). In an email dated November 27, 2015, Ms. Shaffer informed this office that she is still seeking to appeal the substantive nature of the DAO's August 10 response. As a result, I will now analyze the DAO's August 10 response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Dara Z. Kesselheim, Esq. SPR15/684 Page Two December 10, 2015 Request 2 In your August 10 letter, you explained that there are no records responsive to Request 2. As indicated in Ms. Shaffer's August 14 appeal petition, she does not dispute the DAO's response to Request 2. This portion of Ms. Shaffer's appeal is now closed. Request 1, Request 3, and Request 4 With respect to Request 1, Request 3, and Request 4, the DAO denied providing the responsive records in their entirety pursuant to Exemption (f), the investigatory exemption to the Public Records Law. 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) 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 of Boston, 378 Mass. 281,290 n.18 (1979). In the August 10 letter, you explain that the responsive records were the subject of an active investigation and disclosure of these records would jeopardize the prosecution of this matter. The DAO provided the docket number of the applicable court case. Further, the DAO explained that disclosure would "compromise the defendant's constitutional right to a fair trial. ..." In a telephone conversation with an attorney on my staff, you explained that disclosing responsive records, particularly those responsive to Request 1, risked compromising a fair trial because the jury pool or potential witnesses could be influenced by the information revealed in the records. You explain in the August 10 letter that this risk to a fair trial "would 'prejudice the possibility of effective law enforcement'" as required to withhold records under Exemption (f).

Ms. Dara Z. Kesselheim, Esq. SPR15/684 Page Three December 10, 2015 Investigation no longer active; requirement to provide another response I find the DAO has met its burden to withhold records responsive to Request 1, Request 3 and Request 4 under Exemption (f) in its August 10 response. During December 2015, however, you explained to an attorney on my staff that that the relevant investigation has now concluded. Accordingly, the DAO is hereby ordered, within ten (1 0) days, to provide a revised response to Ms. Shaffer's request for records. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. It is important to note that appeals under the Public Records Law are determined on a case-by-case basis. 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. cc: Ms. Maya Shaffer