Bradley W. Phipps, Esq. v. Office of the District Attorney - Northwestern District (SPR 20170632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23, 2017 SPR17/632 Cynthia Von Flat ern, Esq. Records Access Officer Northwestern District Attorney's Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received the petition of Bradley Phipps, Esq. appealing the response of the Office of the District Attorney Northwestern District (DAO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 25, 2017, Attorney Phipps requested copies of an investigatory police report originating from the Town of Shelburne. Previous appeal This request was the subject of a previous appeal. See SPRl 7 /495 Determination of the Supervisor of Records (April 13, 2017). I closed SPRl 7/495 with the proviso that the DAO provide Attorney Phipps with a supplemental response. The DAO provided a response dated April 28, 2017 in which it denied access to records. Attorney Phipps objects to this response and this appeal (SPRl 7/632) was opened as a result. Purpose of request 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 requestors. Access to a record 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 Le:idngton, 371 Mass. 59, 64 (1976). Accordingly, Attorney Phipps' 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, 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

Cynthia Von Flat ern, Esq. SPRl 7/632 Page 2 May 23, 2017 this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.0S(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Phipps may wish to consider another means of seeking to obtain any existing responsive records. 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, § 1O A( 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, § 1 O(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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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.rna.us/pre/prepdf/guide.pdf. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. April 28th response 111 In its April 28 response the DAO denied access to the responsive record under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(£). Exemption (!) Exemption (f) permits the withholding of:

Cynthia Von Flat ern, Esq. SPR17/632 Page 3 May 23, 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, 3 71 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, 3 78 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 DAO cites Exemption (f) and indicates "[r]edaction would not protect the confidentiality of civilian witnesses if they are known to the requestor. Moreover, redaction would not preserve the confidentiality of investigative techniques. I must confirm that the report is not a public record and will not be disclosed." However, is unclear whether there are any portions of the responsive record that could be produced without disclosing witness identities or confidential investigative techniques. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). I understand a Public Records Division staff attorney contacted you and provided a copy of the file associated with the appeal. You indicated the DAO intends to provide a supplemental response to Attorney Phipps addressing the ability to redact the responsive record. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO provide Attorney Phipps with a supplemental response 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. Attorney Phipps may appeal the substantive nature of the DAO's response within ninety days. See 950 C.M.R. 32.08(1).

Cynthia Von Flatern, Esq. SPRl 7/632 Page 4 May 23, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Bradley Phipps, Esq.