Michael J. Widmer v. Office of the District Attorney - Middlesex District (SPR 20170078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 27, 2016 SPR17/078 Jessica Langsam, Esq. Assistant District Attorney Office of the District Attorney -Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Langsam: I have received the petition of Michael Widmer appealing the response of the Office of the District Attorney - Middlesex District (DAO) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Widmer is requesting "to review the entire police and prosecutorial files including summaries, interview, notes, etc." of a specifically identified investigation. Previous appeal This request was the subject of a previous appeal. See SPR16/1140 Determination of the Supervisor of Records (December 20, 2016). This office closed SPR1611140 with the proviso that the DAO provide Mr. Widmer with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO responded in a letter dated January 4, 2017 and Mr. Widmer informed this office he objects to this response. This appeal (SPR17/078) was opened as a result. Exemption (f) In its January 4th letter the DAO continues to deny access to responsive records under Exemption(±) of the Public Records Law. G. L. c. 4, § 7(26)(±). 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 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

Jessica Langsam, Esq. SPR17/078 Page2 January 27, 2016 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 ofBoston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. In its January 4th response you explain "[d]espite the fact that this homicide occurred 47 years ago, an Assistant District Attorney who is a senior member of our homicide team, as well as a State Police Detective, are assigned to this case which is still an active and open criminal investigation." The DAO explains "[t]he responsive records include copies of police reports, witness statements, forensic reports, and crime scene photographs, the disclosure of which is presumptively prejudicial to effective law enforcement and prosecution where this Office is still in the process of investigating this death." The DAO indicates that the release of records "would reveal the exact nature of the circumstances of the homicide, the exact cause of death, and the identity of voluntary witnesses and could hinder the detection and identification of the perpetrators who committed this crime which is unsolved and which this Office continues to investigate." However, it is unclear why certain exempt information cannot be redacted and the segregable portion provided. Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). It is also unclear how disclosure "could hinder the detection and identification of the perpetrators." See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). 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 supplemental response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO provide Mr. Widmer 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.

Jessica Langsam, Esq. SPR17/078 Page 3 January 27,2016 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Widmer