Becky Cooper v. Office of the District Attorney - Middlesex District (SPR 20170212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 3, 2017 SPR17/212 Elizabeth May, Esq. Assistant District Attorney Middlesex County District Attorney 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney May: I have received the petition of Becky Cooper of The New Yorker appealing the response of the Middlesex County District Attorney (DAO) to a July 18, 2016 request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Cooper requested a copy of all records relating to a January 7, 1969 homicide. Previous appeal This request was the subject of a previous appeal. See SPR16/953 Determination of the Supervisor of Records (November 4, 2016). This office closed SPR16/953 with the proviso that the DAO review its records to determine whether any nonexempt records could be segregated and provided to Ms. Cooper in response to her request. The DAO provided a response dated November 16, 2016 in which it denied access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Ms. Cooper appealed and SPRl 7 /212 was opened. The Public Records Law 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, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). "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). 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. SPRI 7/212 Page2 March 3, 2017 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 ) (2016 ed.); 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. Present appeal Exemption (I) In its November 16th response the DAO claims the responsive records may be withheld under Exemption (f). Exemption (f), the "investigatory" 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 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). 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 November 16th response the DAO explains "[d]espite the fact that this homicide occurred 47 years ago, an Assistant District Attorney is assigned to this case which is still active and ongoing." 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." 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. See G. L. c. 66, § lO(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted you and provided a copy

Elizabeth May, Esq. SPRl 7/212 Page3 March 3, 2017 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 Ms. Cooper 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Becky Cooper