Michael J. Widmer v. Office of the District Attorney - Middlesex District (SPR 20170562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2017 SPR17/562 Robert J. Bender, Esq. Assistant District Attorney Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Bender: 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 appeals This request was the subject of previous appeals. See SPR16/1140 Determination of the Supervisor of Records (December 20, 2016); SPRl 7/078 Determination of the Supervisor of Records (January 27, 2017); SPRl 7/207 Determination of the Supervisor of Records (March 6, 2017). This office closed SPRl 7/207 by ordering the DAO to provide a supplemental response to the request, or in the alternative, submit records for in camera review. Elizabeth May, Esq. responded on behalf of the DAO in a letter dated April 6, 2017. Mr. Widmer informed this office he objects to this response and this appeal (SPRl 7/562) 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, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. Exemption (I) In its April 6th letter the DAO continues to deny access to responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). 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

Robert J. Bender, Esq. SPR17/562 Page 2 April 25, 2017 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 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 April 6th 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 ... " and explains it "is currently working with the State Crime Lab to determine whether additional evidence can be tested and what further testing methods are available to analyze the evidence in this case." Attorney May indicates that "[a]lthough the Britton homicide has been a focus of media attention, there has been a minimal amount of prior disclosure." The DAO claims that "the media coverage has not made public the critical details obtained by police." In subsequent correspondence from you to Adrienne Lynch, Chief of Homicide dated April 25, 2017, you explain "[w]ithout repeating the specific details of the source of the DNA that you seek to test, I understand that the available testing has evolved materially so that a renewed set of tests is worthwhile so that a DNA profile might be produced, should the tests proceed as expected." You continue by stating "[r]ecently you were considering using Cybergenetics 'TrueAllele' interpretation technology, which was ruled admissible in Commonwealth v. Bartlett, Docket No. 1283CR157, in Plymouth Superior Court in May 2016. At this date you are seeking to confirm with the state lab what other testing development the lab would recommend." I find that in light of its April 6th response and its April 25th correspondence, the DAO has met its burden to establish the active nature of the investigation at issue. Attorney May also explains the DAO's position that "after conducting a meticulous review of the materials, it is clear that redaction of the requested materials is not practicable. The redaction needed to produce the disputed materials would be so extensive that production of

Robert J. Bender, Esq. SPRl 7/562 Page 3 April 25, 2017 them would be indistinct from non-disclosure." However, the DAO has not met its burden to explain why redactions would be extensive and why, for example, identifying information within witness statements or other records 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, § IO(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). It is unclear how disclosing any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). I understand a Public Records Division staff 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 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, ··IIJJurA Rebecca S. Murray Supervisor of Records cc: Michael Widmer