Quemere, Andrew v. Office of the Attorney General - Environmental Protection Division (SPR 20150747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 22, 2015 SPRlS/747 Ms. Lorraine A. G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 021 08 Dear Attorney Tarrow: I have received the petition of Andrew Queme re of the Bay State Examiner appealing the response of the Office of the Attorney General (AGO) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Quemere requested copies of police reports and a video recording of a specific incident involving a specifically identified individual and a City of Worcester Police Officer. In a written response the AGO denied Mr. Quemere's request in its entirety stating responsive records would be exempt from disclosure pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Mr. Quemere appealed this response. 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Lorraine A. G. Tarrow, Esq. SPR15/747 Page Two December 22, 2015 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). The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. You state the responsive records "are investigatory materials necessarily compiled out of public view, the disclosure of which would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." In a telephone conversation with an attorney on my staff, you indicated the responsive records were used in grand jury proceedings. I understand that as of the date of this letter there is an open investigation in this case. As a result, I find the AGO has met its burden to withhold the responsive records because it has demonstrated 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). Accordingly, I will consider this appeal closed.

Ms. Lorraine A. G. Tarrow, Esq. SPRIS/747 Page Three December 22, 2015 ShdlZruns pervisor of Records cc: Mr. Andrew Quemere