Gary S. Brackett, Esq. v. Office of the District Attorney - Worcester District (SPR 20170364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 29, 2017 SPR17/364 George G. Hardiman, Esq. Law Office of George G. Hardiman 15 Foster Street Quincy, MA 02169 Dear Attorney Hardiman: I have received the petition of Gary S. Brackett, Esq. of Brackett & Lucas, Counselors at Law, appealing the response of the Office of the Worcester District Attorney (Office) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Brackett requested, on behalf of his client Mark Ferguson, two (2) categories of records related to specified police reports. Attorney Brackett originally made his request to the Office and received a response dated January 30, 2017 from Senior First Assistant District Attorney Jeffrey T. Travers. Attorney Travers notified Attorney Brackett that "[t]he criminal matter referenced in your correspondence was assigned to Special Prosecutor George G. Hardiman ... [and] the case material transferred to the special prosecutor .... " Attorney Brackett subsequently submitted a request for records to your office, dated February 3, 2017. In a response dated February 14, 2017 you denied Attorney Brackett's request, citing Exemption (f) of the Public Records Law. Attorney Brackett petitioned this office and this appeal, SPR 17/364, was opened as a result. 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, § lOA(d); 950 C.M.R. 32.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); 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 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

George G. Hardiman, Esq. SPR17/364 Page2 March 29, 2017 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Purpose of request Attorney Brackett indicates in his petition that he is seeking the requested records on behalf of his client. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Brackett's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Brackett may wish to consider another means of seeking to obtain any existing responsive records. Exemption (I) In your February 14th response, you state that the requested records are being withheld in their entirety as they are related to cases that "remain open and in active litigation." You further explain that the requested records are "rightfully protected 'investigatory materials' and are exempt from disclosure under the public records law pursuant to M.G.L. c. 4, § 7(26)(f)." 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

George G. Hardiman, Esq. SPRl 7/364 Page 3 March 29, 2017 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. The Office's response did not contain the specificity required in a denial of access to public records. Instead, the Office's response merely cites Exemption (f) without any further explanation as to the exemption's applicability to the requested records. The Office is not permitted to issue, a blanket denial without providing any further information with respect to the requested records. While the Office claims the responsive records pertain to ongoing investigations, it does not explain how disclosure of the 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). I understand a member of the Public Records Division staff contacted you regarding this matter. Determination Subsequent to a telephone conversation with a member of the Public Records Division staff, you agreed to provide Attorney Brackett with a supplemental response. I will consider this administrative appeal closed with the proviso that this response is provided without delay. 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: Gary S. Brackett, Esq. Jeffrey T. Travers, Esq.