Michael J. Widmer v. Office of the District Attorney - Middlesex District (SPR 20170207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 6, 2017 SPR17/207 Elizabeth May, Esq. Assistant District Attorney Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney May: 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 § lO(A); see also 950 C.M.R. 32.08(1). Specifically, in November 2016, Mr. Widmer requested "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); SPRl 7/078 Determination of the Supervisor of Records (January 27, 2017). This office closed SPRl 7/078 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 February 13, 2017 and Mr. Widmer informed this office he objects to this response. This appeal (SPRl 7/207) was opened as a result. I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 201 7. Therefore, the prior Law's provisions and regulations apply to this request and appeal. Exemption (I) In its February 13th letter the DAO continues to deny access to responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(±). Exemption (f) permits the withholding of: 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

Elizabeth May, Esq. SPR17/207 Page2 March 6, 201 7 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)(±) 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 of Boston, 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 February 13th response the DAO explains it "possesses responsive documents that were created or received within the last 20 years, including personal information of various suspects, police correspondence with citizens, DNA test results, and information from CODIS (the Combined DNA Index System) databases around the country regarding those results, which the Office continues to pursue." The DAO also indicates it is "in the process of determining what, if any, further DNA testing may be done .... " The DAO further indicates it is withholding "witness statements" because of the possibility of "chilling" communication with law enforcement. The DAO is also withholding "police reports," "crime scene photographs," or "forensic test results, including DNA tests presently being sought and those already entered into CODIS" because disclosure "would prejudice the investigation by revealing logical next steps and thereby alerting potential suspects." The DAO claims "[t]he passage of time does not warrant release of the information, particularly where new forensic procedures may shed light on existing evidence and such test results would warrant further interviews." However, it is unclear, given the age of this investigation, how this case remains ongoing. The DAO has not explained to what extent responsive records have been available elsewhere, particularly in light of media coverage. Further, the DAO has not provided information pertaining to the most recent developments in the investigation. See Roman Catholic Bishop v. Travelers Cas. & Sur. Co., 23 Mass. L. Rep. 524 (2008). The DAO also has not explained why identifying information within responsive records, for example, witness statements, 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,

Elizabeth May, Esq. SPR17/207 Page 3 March 6, 2017 § lO(a). 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 a Public Records Division attorney contacted you about this appeal. Conclusion Accordingly, the DAO is hereby ordered to provide Mr. Widmer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. In camera inspection In the alternative, in order to facilitate my review, the DAO may provide this office with unredacted copies of a representative sample of responsive records for in camera inspection. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o]n doubtful questions an in camera inspection may be appropriate). These records should, for example, demonstrate the active nature of the investigation. After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The DAO may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the

Elizabeth May, Esq. SPR17/207 Page 4 March 6, 2017 materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~ 'irw®yt U Rebecca S. Murray Supervisor of Records cc: Michael Widmer