Todd Wallack v. Office of the District Attorney - Middlesex District (SPR 20170033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 13, 2017 SPR17/033 Meghan Kelly Director of Communications Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Ms. Kelly: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Office of the District Attorney-Middlesex District (DAO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested "copies of any documents the agency has received or generated in the past 20 years" regarding a specifically identified incident. Mr. Wallack indicated this excludes "correspondence and other documents related to public records requests." In a response dated December 29, 2016, the DAO denied the request, claiming the records may be withheld under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(£). 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, § 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a 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

Meghan Kelly SPR17/033 Page 2 January 13, 2017 request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide -written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. 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://W¥.w.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 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 infonnation. Exemption (/) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out ofthe 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). In its December 29 response, to support its Exemption (f) claim, the DAO indicates "[u]unfortunately, at this time, this Office is unable to provide you with copies of records as the records you are seeking directly relate to an active and open criminal investigation." You explain "[d ]espite the fact that this homicide occurred 4 7 years ago, an Assistant District Attorney is assigned to this case which is still active and ongoing." You provided Mr. Wallack with copies of newspaper articles pertaining to the case in question. However, based on the December 29 response, it is unclear how this case remains active and how disclosure of the responsive records "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). See Reinstein, 378 Mass. at 289-90 (explaining that Exemption (f) "invites case-

Meghan Kelly SPR17/033 Page 3 January 13, 2017 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 .... '"). Further, the DAO must confirm whether it possesses responsive records, specifically those created or received in the last twenty (20) years as requested by Mr. Wallack. See G. L. c. 4, § 7(26)(the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request). I understand an attorney on my staff contacted you and you indicated in a January 10, 2017 email that the DAO would provide Mr. Wallack a supplemental response. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO provide Mr. Wallack 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 this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Sincerely, f4};efoCA f!Yt(JJ)v{~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack