Meaghan Cary, Esq. v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 12, 2016 SPR16/769 Mr. Sean W. Farrell, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Meaghan M. Cary, Esq. from the Committee for Public Counsel Services, Public Defender Division, appealing the response of the Department of State Police (Department) to an August 16, 2016 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Cary requested a copy of a "list" of internal affairs records for a specifically identified trooper, including "IA number, case number, incident type, date opened, badge number of trooper, allegation, finding and date of finding." Status ofA ttorney Cary not determinative as to public status of or fees related to records In the August 16 request Attorney Cary notes that, as the request is made by "a state employee in the regular course of [Attorney Cary's] employment, [Attorney Cary] requests that any fees be waived." Please note that the personal status of any person requesting public records affords no greater right of access to the requested information. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Cary's status as a staff attorney for the Committee for Public Counsel Services, and any representation by a party by Attorney Cary shall play no role in the public status of any responsive records, nor vv'ill it play any role in whether any fees are to be assessed to provide any public records. Department denies request citing investigatory exemption By your letter dated September 2, 2016, the Department denied Attorney Cary's request. In the letter you explain that any records responsive to this request are related to an ongoing OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Sean W. Farrell, Esq. SPR16/769 Page2 October 12, 2016 criminal matter (Commonwealth v. Nicole Johnson, Docket No.: 1610CR000657). You further noted that a judge in Somerville District Court recently denied a motion by Attorney Cary to seek the same records; you also stated "the Supreme Judicial Court has held, when a party in a criminal matter seeks access in advance of trial to books, papers, documents, [Massachusetts Rules of Criminal Procedure, P. 17(a)(2)] is the exclusive method to obtain records from a third party prior to trial." In denying access to records requested pursuant to the Public Records Law you cited the investigatory exemption and provided information to Attorney Cary regarding her right of administrative appeal. G. L. c. 4, § 7 (26) (±); 950 C.M.R. 32.08(1). Records in existence The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Attorney Cary requested a "list" associated with the request for internal affairs records of a specifically identified trooper. The Department failed to indicate in its denial whether such a list exists. A records custodian is expected to use his or her superior knowledge when responding to a request for records to determine whether a responsive record actually exists. Access to records by parties in litigation The Massachusetts Supreme Judicial Court has held that material exempt from disclosure to the general public under the Public Records Law may be available to certain parties through other means. Commonwealth v. Wanis, 426 Mass. 639 (1998). Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, and as indicated above, the status of Attorney Cary as attorney for a party in litigation will not assist in providing access to records otherwise exempt from disclosure under the Public Records Law. Exemption (f) The Department has claimed that given the fact that the requested reiXlrds __ arelh~_SU_bje_~-----­ of a dispute within a criminal case, the request under the Public Records Law is denied pursuant to Exemption(±). Exemption(±), 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

Mr. Sean W. Farrell, Esq. SPR16/769 Page 3 October 12, 2016 disclosure would not be in the public interest G. L. c. 4, § 7 (26)(f) Exemption (f) allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). Therefore, a custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. While the response of the Department explained the relationship between Attorney Cary and a client seeking records associated with a criminal matter, the Department's written response failed to state how the responsive records relate to the ongoing investigation and how disclosure of such records would serve to harm any ongoing investigative efforts. Accordingly, I find the Department failed to justify its statutory obligations of specificity to withhold the responsive records. Order Accordingly, the Department is hereby ordered to review Attorney Cary's request and provide a revised written response, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response st be provided to this office. It is preferable to send an electronic copy of this response to this ffice at pre@sec.state.ma.us. cc: Ms. Meaghan M. Cary, Esq.