Jessica S. Babine, Esq. v. Department of Public Safety (SPR 20170303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 21, 2017 SPR17/303 Stephen Carley, Esq. Assistant General Counsel Department of Public Safety Commonwealth of Massachusetts One Ashburton Place, Room 1301 Boston, MA 02108 Dear Attorney Carley: I have received the petition of Attorney Jessica Babine, representing Mr. David Hepp, appealing the response of the Department of Public Safety (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Babine, Esq. requested any and all documents and reports pertaining to a specifically identified industrial injury sustained by her client. In a response dated January 27, 2017, the Department denied the request, claiming the records may be withheld under Exemption (f) of the Public Records Law. G. L. C. 4, § 7(26)(f). 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, § lO(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, § lO(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. 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

Stephen Carley, Esq. SPR17/303 Page 2 March 21, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). 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://www.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 information. Exemption (I) Exemption (f) 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). In its January 27 response, to support its Exemption (f) claim, the Department informed Attorney Babine that "[t]he Department is withholding this information until such time as its investigation has concluded and the investigation report is finalized." Conclusion Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the Department informed this office that the investigation has concluded and therefore Exemption (f) is no longer applicable. As such, the Departmentplans to provide Attorney Babine with a response which is to include the records she was initially denied. Accordingly, I will consider this administrative appeal closed with the proviso that the Department provide said response to Ms. Babine within ten (10) business days. A copy of any

Stephen Carley, Esq. SPRI 7/303 Page 3 March 21, 2017 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: Jessica Babine, Esq.