Craig P. Shibley v. Office of the District Attorney - Worcester District (SPR 20170027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2016 SPR17/027 Lindsay Corcoran Public Records Officer Office of the District Attorney-Worcester County 225 Main St., G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Craig Shibley appealing the response of the Office of the District Attorney- Worcester County (DAO) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Shibley requested a copy of an interview transcript related to a specifically identified murder investigation. Previous appeals This request was the subject of a previous appeal. See SPR16/157 Determination of the Supervisor of Records (March 11, 20 16); SPR16/1 071 Determination of the Supervisor of Records (December 9, 2016). This office closed SPR16/1071 with the proviso that the DAO provide Mr. Shibley with a response to the request, provided in a manner consistent with the December 9 and March 11 orders. In the alternative, the DAO could provide this office with unredacted copies of the responsive records for in camera review along with an explanation of its position regarding the applicability of any exemptions to the responsive record. The DAO provided records for in camera review. I would like to thank the DAO for its cooperation. Response to the December 9 order In its cover letter provided with the records submitted for in camera review, the DAO states "[t]his office believes a review of these documents will demonstrate that the requested documents sought on this appeal are exempt from disclosure under the public record law as 'investigatory materials' in an active homicide investigation." 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

Lindsay Corcoran SPR17/027 Page 2 January 12,2016 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 of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). While the DAO claims the responsive record pertains to an ongoing investigation, it does not describe how the requested record is part of the investigation. Further, the DAO did not demonstrate how disclosure of the responsive transcript "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (explaining that Exemption (f) "invites case-by-case consideration of whether access 'would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest .... "'). As a result, the DAO failed to meet its burden of explaining with specificity how the responsive transcript, in its entirety, is exempt from disclosure. See id. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a); Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d 252, 270 (D.D.C. 2004) (explaining that in camera review is no substitute for the Government's obligation to provide detailed justifications). I understand an attorney on my staff contacted you about this appeal. Conclusion Accordingly, the DAO is hereby ordered to provide Mr. Shibley with a response to the request, provided in a manner consistent with this order the Public Records Law and its Regulations within ten (1 0) business days. 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.

Lindsay Corcoran SPR17/027 Page 3 January 12, 2016 Sincerely, ,~t11Uuu. Rebecca S. Murray Supervisor of Records cc: Craig Shibley