Becky Cooper v. Office of the District Attorney - Middlesex District (SPR 20160953)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 4, 2016 SPR16/953 KerryA nne Kilcoyne, Esq. Assistant District Attorney Middlesex County District Attorney 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Kilcoyne: I have received the petition of Becky Cooper of The New Yorker appealing the response of the Middlesex County District Attorney (District Attorney) to a July 18, 2016 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Cooper requested a copy of all records relating to a January 7, 1969 homicide. The District Attorney denied Ms. Cooper's request pursuant to Exemption (f) of the Public Records Law. Ms. Cooper petitioned this office. 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, § lO(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 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is 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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

KerryA nne Kilcoyne, Esq. SPR16/953 Page 2 November 4, 2016 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. Exemption (f) In your July 28, 2016 response, you stated that the records pertaining to the investigation of the death of Jane Britton are being withheld due to an active and open criminal investigation; therefore, the District Attorney is withholding all the records 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, 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 of Boston, 378 Mass. 281, 290 n.18 (1979). Present appeal In an October 31, 2016 telephone conversation with a member of my legal staff, you explained that you have conferred with the District Attorney's Criminal Division and confirmed that the investigation is currently active and ongoing. In her petition Ms. Cooper stated her belief that, based upon her own conversations with investigators, there is no one currently assigned to this case. In a November 4, 2016 telephone conversation you indicated a willingness to confirm whether any nonexempt records exist associated with the 1969 homicide that could be disclosed without harm to the investigation. Further, it would be instructive to Ms. Cooper to rebut her belief that there is no ongoing investigation. Conclusion I will consider this administrative appeal closed with the proviso that the District Attorney review its records to determine whether any nonexempt records could be segregated and provided to Ms. Cooper in response to her request. A copy of any such response must be

KerryA nne Kilcoyne, Esq. SPR16/953 Page 3 November 4, 2016 provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. s Su rvisor of Records cc: Becky Cooper