Lodge, Sr., Michael v. Office of the District Attorney - Suffolk County (SPR 20150886)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 4, 2016 SPRlS/886 Ms. Dara Kesselheim, Esq. Assistant District Attorney Office of the Suffolk County District Attorney One Bulfinch Place, Suite 300 Boston, MA 02114-2921 Dear Attorney Kesselheim: I have received the petition of Michael Lodge appealing the response of Office of the Suffolk County District Attorney (DAO) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Lodge requested copies informant and witness statements related to a specifically identified court case. In a response dated September 17, 2015 The DAO denied his request in its entirety citing to Exemption (d), the deliberative process exemption to the Public Records Law. The DAO also informed Mr. Lodge that it considers this request for records to be demand for post-conviction discovery requiring a court order. In a subsequent response dated December 17, 2015 the DAO informed Mr. Lodge that the responsive records are being withheld pursuant to Exemption (f), the investigatory exemption to the Public Records Law. 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In its December 17, 2015 letter the DAO informed Mr. Lodge that it intends to withhold 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. Dara Kesselheim, Esq. SPR15/886 Page2 January 4, 2016 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). 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). 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 ofBoston, 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 ofthose who are familiar with the individual and his career." Id. at 438. In its December 17 letter, the DAO explained that disclosure of the content of the statements could reveal the identities of the informant and witnesses, thus jeopardizing their safety and prejudicing the possibility of effective law enforcement. The DAO explained that these statements are related to a particular court case. I find the DAO has met its burden to show that disclosure of these statements could reveal the identities of informants and witnesses. As a result, I find the DAO may permissibly withhold the responsive records under Exemption (f). Accordingly, I will consider this matter closed. a upervisor of Records cc: Mr. Michael W. Lodge, Sr.