Craig P. Shibley v. Office of the District Attorney - Worcester District (SPR 20170057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 23, 2017 SPR17/057 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 to review all transcripts, investigative reports and correspondence in the homicide file of a specifically identified murder investigation. Previous appeals This request was the subject of a previous appeal. See SPR17/ 020 Determination of the Supervisor of Records (January 4, 20 17). In a response to SPR17/ 020 the DAO provided Mr. Shibley with a response dated January 5, 2017. Mr. Shibley appealed and SPR17/057 was opened as a result. Current appeal The DAO cited Exemption (f), the investigatory exemption to the Public Records Law as a means of withholding responsive records. Exemption (f) 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 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 SPR17/057 Page 2 January 23, 2017 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 January 5th response the DAO states, "[t]his office provided a redacted State Police Report to you on December 3, 2015" and "[t]here are no additional case materials available for public inspection as the case remains open." While the DAO claims the responsive record pertains to an ongoing investigation, it does not describe how the requested records are part of the investigation. Further, the DAO did not demonstrate how disclosure of the remaining responsive records "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 Ma:ss. 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, it is unclear how the responsive records, in their entirety, are 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). I understand an attorney on my staff contacted you about this matter. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley