Russell, Jenna v. Office of the District Attorney - Middlesex District (SPR 20150917)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 15, 2016 SPRlS/917 Ms. KerryA nne Kilcoyne, Esq. Assistant District Attorney Office of the Middlesex District Attorney 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Kilcoyne: I have received the petition of Jenna Russell and Eric Bosco of The Boston Globe appealing the response of the Office of the Middlesex District Attorney (DAO) to requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on November 25, 2015 and December 3, 2015 Ms. Russell and Mr. Bosco respectively requested records consisting of what they called the "final report" of the DAO regarding several specifically identified officer-involved shootings. In separate responses dated December 11,2015 the DAO denied Mr. Bosco and Ms. Russell's requests for a "final report;" however the DAO did provide a "press release detailing the findings of [the District Attorney] that the [shootings were] legally justified" for each incident. G. L. c. 4, § 7(26)(f); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1076), DaRosa v. City ofNew Bedford, 471 Mass. 446,458-459 (2015). In her petition, made on behalf of herself and Mr. Bosco, Ms. Russell appealed. 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 ( 199 5) (custodian has the burden of establishing the applicability of an exemption). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. KerryAnne Kilcoyne, Esq. SPR15/917 Page 2 January 15, 2016 Exemption (f) In your December 11, 2015 response, you explained that the DAO withheld the reports pursuant to Exemption (f) of the Public Records Law. 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) (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, 3 71 Mass 59, 62 (1976). However, 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). In your December 11 responses you explain in nearly identical language that "the reports may be withheld entirely from disclosure pursuant to [E]xemption (f) as these documents are 'the basic working document' of this Office's investigatory process and promotes 'the creation of initiative that [prosecutors] might be completely candid in recording their observations, hypotheses and interim conclusions." This response fails to state why the reports could not be provided in redacted form. In a January 8, 2016 telephone conversation, you informed an attorney on my staff that the District Attorney would draft a second response to further support its exemption claims. Accordingly, whereas I find the DAO has failed to meet its burden of specificity to deny requests for the responsive records in their entirety, I will consider this administrative appeal closed, with the proviso that the DAO, within ten (10) days, provide both Ms. Russell and Mr. Bosco a revised response to each request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the DAO maintains that any portion of the responsive records are exempt from disclosure it must provide 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.

Ms. KerryAnne Kilcoyne, Esq. SPR15/917 Page 3 January 15, 2016 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, you must provide the responsive records. To assist the DAO in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Enclosure cc: Ms. Jenna Russell Mr. Eric Bosco