Becky Cooper v. Office of the District Attorney - Middlesex District (SPR 20170820)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30,2017 SPRl71820 Elizabeth May, Esq. Assistant District Attorney Middlesex County District Attorney 15 Commonwealth Avenue Woburn, MA 0 18 0 1 Dear Attorney May: I have received the petition of Becky Cooper of The New Yorker appealing the response of the Middlesex County District Attorney (DAO) to a July 18,2016 request for public records. G. L. c. 66 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Cooper requested a copy of all records relating to a January 7, 1969 homicide. Previous appeals This request was the subject of previous appeals. SPR161953 Determination of the Supervisor of Records (November 4,20 16); SPR1712 12 Determination of the Supervisor of Records (March 3,2017). This office closed SPR171212 with the proviso that the DAO provide Ms. Cooper with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO provided a response dated March 3 1,2017 in which it denied access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, 5 7(26)(f). Ms. Cooper appealed and SPR171820 was opened. The Public Records Law 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, 201 7. Therefore, the prior Law's provisions and regulations apply to this request and appeal. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, 5 10(c) (2016 ed.); 950 C.M.R. 32.08(4) (201 6 ed.). "Public records" is broadly defined to include all documentary materials or data, One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Elizabeth May, Esq. Page 2 June 30,2017 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, 5 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, 5 10(c) (2016 ed.); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 11 (1 995) (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. Exemption In its March 3 1" response the DAO claims the responsive records may be withheld under Exemption (f). Exemption (f), the "investigatory" 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. 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 cohplainants. ~einstein-vP.o lice Comm'r of Boston, 378 Mass. 28 1,290 n. 18 (1 979). 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's March 31" response In the DAO's March 3 lStr esponse you indicate "[aln Assistant District Attorney who is a senior member of the homicide team and a Mass. State Police detective are assigned to the continued investigation of the case." You assert that the DAO "is continuing to pursue leads and to conduct forensic testing - which had been submitted to CODIS (the Combined DNA Index System), a national database." Further, you explain that the DAO is "in the process of determining what, if any, further DNA testing may be done using more advanced forensic testing methods and whether to conduct further analysis of existing DNA test results using Cybergenetics 'TrueAlleleYi nterpretation technology. . . ."

Elizabeth May, Esq. Page 3 June 30,2017 The DAO indicates "[wlitness statements given over the course of this investigation will not be provided because doing so would 'probably so prejudice the possibility of effective law enforcement,' G.L. c. 4, 5 7, Twenty-sixth (f), by 'chill[ing] future communications between law enforcement and citizens."' You also state "[nlor will this Office provide police reports, crime scene photographs, or forensic test results, including DNA tests presently being sought and those already entered into CODIS, because doing so would prejudice the investigation by revealing logical next steps and thereby alerting potential suspects." You assert there is a public interest in successful prosecution and "keeping information out of the public realm to avoid corruption of the investigation by false confessions, tips, and/or identifications, as well as consideration of the victim's rights and public safety." The DAO explains that "[wlhere, as detailed above, release of the information you seek would prejudice the investigation by revealing confidential investigative techniques, procedures, and sources of information, would violate individual privacy interests, and would chill witness assistance to law enforcement out of fear of unwanted publicity your request continues to be denied." With respect to the length of time since the incident occurred, the DAO indicates "[tlhe passage of time does not warrant release of the information, particularly where new forensic procedures may shed light on existing evidence and such test results would warrant further interviews." In camera inspection 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. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[oln 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 of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, 5 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. Rock v. 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. 950 C.M.R. 32.08(4)(c). 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

Elizabeth May, Esq. Page 4 June 30,2017' under any circumstances. Upon a determination of the 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. It is my understanding that the DAO is conducting testing regarding this matter that may require additional time to complete. The DAO may wait until the completion of this testing to provide this office with records for the in camera inspection. Please note that these same timeframes apply to the production of records for in camera inspection with respect to an appeal filed by Michael Widmer. SPR171793 Determination of the Supervisor of Records (June 26,2017 ). 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: Becky Cooper Robert A. Bertsche, Esq.