Todd Wallack v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 29, 2016 SPR16/004 Mr. Glenn M. Rooney, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Rooney: I have received the petition of Todd Wallack of The Boston Globe appealing the response of Department of State Police (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested "a copy of the electronic log/list of cases referred to the internal review section of the agency's Division of Standards and Training, including public columns available in the log." In a responsive dated December 28, 2015, the Department provided certain responsive information but withheld other information pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Previous appeal This request was the subject of a previous appeal. See SPR14/716 Determination of the Supervisor of Records (December 2, 2015). In my December 2 determination, I ordered the Department to provide Mr. Wallack with an updated good faith fee estimate that reflects only search and segregation time as permitted by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). In compliance with my order the Department provided Mr. Wallack a revised fee estimate in a letter dated December 4, 2015. Mr. Wallack paid the fee and the Department provided him with a letter dated December 28, 2015. With this letter, the Department enclosed responsive records that contained information from the log including the received date, troop/division number, classification, ID number, last name, first name, middle initial and disposition for cases that have been completed. The Department omitted portions of the responsive record associated with open and ongoing investigations. G. L. c. 4, § 7(26)(f). For those omitted cases, the Department provided to Mr. Wallack the received date and troop/division number. Mr. Wallack appealed the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Glenn M. Rooney, Esq. SPR16/004 Page 2 January 29, 2016 Department's withholding of the following information related to the ongoing cases: complaint classification, ID number, trooper name, and the disposition of the complaints for the cases that have not been completed. 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). 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 ofvoluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 n.18 (1979). In its December 28 letter, the Department explains that categories of information were withheld under Exemption (f) because these cases remain open and ongoing. In a supplemental response dated January 26, 2016, you explained that "release of the requested information prior to its conclusion could hinder the Department's ongoing investigations since the release could alert subjects of the investigation (who may not have been notified yet) and/or witnesses (civilian or Department members) to the existence of an investigation." You state that release of the information "would not operate in support of the Department['s] investigative efforts ...."

Mr. Glenn M. Rooney, Esq. SPR16/004 Page 3 January 29, 2016 Subsequent to a January 27, 2016 telephone conversation with an attorney on my staff you provided additional information to support the Department's Exemption (f) position. In particular, you state "internal affairs investigations are (potentially/likely) prejudiced by individuals outside the internal affairs process having access to involved party data." In addition, you explain that if the withheld information is disclosed civilian or Department witnesses may become aware of the investigation prior to the Department requesting their participation in the internal affairs process. You state "[t]he Department does not want the release of any information concerning an ongoing investigation to have any sort of chilling effect on compliance/participation with internal affairs investigations (or other law enforcement investigations)." The Department provided much of what was requested, other than information related to ongoing investigations. The Department further provided a list of those specific matters for which responsive information was withheld pursuant to Exemption (f) of the Public Records Law. I find the Department has met its burden to establish that disclosure of the withheld information could hinder its efforts to investigate these open cases which "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 9, n.8 (2003)(stating that certain information within internal affairs materials may be withheld under the investigatory exemption). Conclusion I find the Department has met its burden of specificity to withhold the complaint classification, ID number, trooper name, and the disposition for cases that remain ongoing pursuant to Exemption (f) of the Public Records Law. Once those inv stigations have concluded Mr. Wallack may again request the withheld records. cc: Mr. Todd Wallack