Mark Kaepplein v. Office of the District Attorney - Middlesex District (SPR 20161132)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords December 21, 2016 SPR16/1132 KerryA nne Kilcoyne, Esq. Assistant District Attorney Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Kilcoyne: I have received the petition of Mark Kaepplein appealing the response of the Office of the District Attorney - Middlesex County (DAO) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kaepplein requested a copy of: 1. "Any citations or charges showing the name of the driver, her address and date of birth, 2. Any crash reports or analysis reports by the Arlington Police Department, 3. Any crash investigation or other reports by the Massachusetts State Police, 4. Documents that may show the court docket number, legal case delays and continuances and the reasons, and 5. Documents that may show the results from the scheduled Magistrate hearing of this matter on November 4, 2016." In your response dated November 17, 2016, you stated that the "Office is unable to provide (Mr. Kaepplein) with copies of records as the records (he is) seeking directly relate to an active and open criminal investigation," pursuant to Exemption (f) of the Public Records Law. Mr. Kaepplein objected and 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, § IO(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). 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

KerryAnne Kilcoyne, Esq. SPR16/1132 Page 2 December 21, 2016 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 bf 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. Exemption (/) The DAO has withheld the records in its entirety pursuant to Exemption (f) of the Public Records Law due to an active and ongoing investigation and prosecution regarding a fatal car accident. Exemption (f), the so-called investigatory exemption, permits investigatory officials to withhold: 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) Exemption (f) provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976); cited with approval in Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289 (1979). This exemption, however, does not provide a blanket exemption for all investigatory materials. Reinstein, supra, at 289. Instead, "it invites case-by-case considerntion of whether access 'would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.'" Id. I understand an attorney on my staff contacted you and provided a copy of the file associated with this appeal. You indicated the DAO would provide a more substantive response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO provide Mr. Kaepplein with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to

KerryAnne Kilcoyne, Esq. SPR16/1132 Page 3 December 21, 2016 this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. isor of Records cc: Mark Kaepplein