Michael J. Widmer v. Office of the District Attorney - Middlesex District (SPR 20170793)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 26, 2017 SPR171793 Elizabeth May, Esq. Assistant District Attorney Office of the District Attorney -Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney May: 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, 20 16); SPR17/ 078 Determination of the Supervisor of Records (January 27, 2017); SPR17/207 Determination of the Supervisor of Records (March 6, 2017); SPR17/562 Determination ofthe Supervisor of Records (April25, 2017). I closed SPR17/562 by ordering the DAO to provide a supplemental response to the request. The DAO responded in a letter dated May 19, 2017. Mr. Widmer informed this office he objects to this response and this appeal (SPR17/793) 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 (f) In its May 19th letter the DAO continues to deny access to responsive records under Exemption (f) ofthe Public Records Law. G. L. c. 4, § 7(26)(±). 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

Elizabeth May, Esq. SPR17/793 Page 2 June 26, 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. ChiefofPolice ofLexington, 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 289-90. The DAD's May 191 h response In its May 19th response the DAO indicates "[a]t this juncture, this Office will continue to withhold responsive records from disclosure pursuant to exemption (f) and will respectfully decline to redact such records." The DAO also states "[s]pecifically, where the Britton homicide is subject to an ongoing investigation, this Office must maintain full control over even seemingly innocuous details. This is so where disclosure of information about events that transpired long ago might impede the ability of potential witnesses to independently recall details." You also cite language from the Bougas decision and indicate "[a]ny disclosure here would defeat the aims mentioned above." With respect to the content of the records at issue you explain "[h]ere, the police reports and related materials provide complete accounts of police investigatory efforts including the police officer's own observations of the incident in question, statements taken from potential witnesses, additional information obtained from other sources, some confidential, and leads and tips to be pursued." You assert "[a] continuing investigation ofthe instant case is expected to produce supplemental reports as new avenues of information are opened up to inquiring police officers." Regarding the issue of whether there are segregable portions of responsive records, the DAO claims "[t]o subject any portion of such investigative records to public disclosure would in the terms ofthe statute 'probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest ... ' G.L. c. 4, §7, Twenty-sixth exemption (f)." You explain"[w ]here this investigation is not concluded, protection of all information contained in all reports is important because release of details would reveal investigative procedures, leads, sources, or hinder potential witnesses from coming forward." You explain that, for example,

Elizabeth May, Esq. SPR17/793 Page 3 June 26, 2017 "releasing portions of letters sent to police by private citizens concerning the murder may provide information to potential targets and have a harmful effect on the normal operation of the law enforcement investigation." The DAO continues by stating "[e ]vena redacted report that merely reveals the direction and timing of the investigation can signal individuals with knowledge of the crime about the likely course of the investigation. Moreover, disclosure of even innocuous information might lead to attempts to conceal or destroy evidence." With respect to the identities of witnesses, the DAO indicates "[m]aterials relating to an open investigation require confidentiality in order to convince citizens that they may safely confide in law enforcement officials." You explain "[t]he public disclosure of investigation information may also influence the recollection of witnesses. It is impossible to determine whether even apparently innocuous information may become significant as the investigation unfolds." In camera inspection The DAO concludes its May 19th letter by stating "[f]or the reasons stated, even if this Office were to attempt to redact records, the redactions would be so substantial that the records would be undecipherable and access would effectively be denied. Therefore, this Office respectfully declines to redact the records." In order to analyze the legal basis of the DAO's position, it is the finding of this office that an in camera review of an unredacted copy of a representative sample of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the DAO. See 950 C.M.R. 32.08(4). After I complete my review ofthe documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o]n doubtful questions an in camera inspection may be appropriate"). These records should, for example, demonstrate the active nature of the investigation. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rockv. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Elizabeth May, Esq. SPR17/793 Page4 June 26, 2017 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination ofthe public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Accordingly, you are hereby ordered to provide this office with an unredacted copy of a representative sample of the responsive records without delay. The DAO may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Widmer Robert A. Bertsche, Esq.