Stephen Helfer v. Office of the District Attorney - Middlesex District (SPR 20170678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May31,2017 SPR17/678 Asher Kim, Esq. Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Kim: I have received the petition of Stephen Helfer of Cambridge Citizens ofS mokers' Rights appealing the response of the Office of the District Attorney - Middlesex District (DAO) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Helfer requested a copy of the investigation report regarding a fire that occurred on December 3, 2016 on Berkshire Street in the City of Cambridge. The DAO denied the request pursuant to Exemption (f) of the Public Records Law. Mr. Helfer appealed. 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 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Asher Kim, Esq. SPRl 7/678 Page 2 May 31, 2017 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. 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. Exemption (I) In your May 15, 2017 response, you informed Mr. Helfer that the report regarding the fire is directly related to an active and open criminal investigation, and whereas the case is still active and on-going, the records are being withheld pursuant to Exemption (f) of the Public Records Law. Exemption (f), the investigative 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)(±). 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, 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 289-290. While the DAO states that there is an active and on-going investigation, no specificity was offered to explain how release of even a redacted report will prejudice the DAO's investigation. As such, I find that the DAO did not meet its burden of proving, with specificity, how the responsive report is exempt from disclosure in its entirety. See Reinstein 3 78 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).

Asher Kim, Esq. SPRl 7/678 Page 3 May 31, 2017 A Public Records Division attorney spoke with you regarding this appeal, and you indicated that the DAO would provide a supplemental response further explaining its Exemption (f) claim to withhold the report on the December 3, 2016 fire. Conclusion Accordingly, whereas the DAO has indicated that it will provide another response to Mr. Helfer, I will consider this appeal closed with the proviso that the DAO provides the response, 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. Mr. Helfer may appeal the substantive nature of the DAO's supplemental response within ninety (90) days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephen Helfer