Vanessa M. Brown, Esq. v. Norfolk County District Attorney's Office (SPR 20170914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2017 SPR17/914 Laura A. McLaughlin, Esq. Assistant District Attorney Records Access Officer Office of the District Attorney-Norfolk District 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of Vanessa Brown, Esq. appealing the response of Office of the District Attorney-Norfolk District (DAO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Attorney Brown requested a copy of a 911 tape recording of a call made on a specific date by an identified individual. In a response dated April 14, 2017, the DAO denied access to the responsive record under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(±). 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, § 1O (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

Laura A. McLaughlin, Esq. SPR17/914 Page 2 July 20, 2017 Exemption (f) Exemption (f) 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 prejudi"ce 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. 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 Comm'r 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 14th response the DAO explains its investigation into the named individual is "open and ongoing" and that the defendant was arraigned in Norfolk Superior Court on March 23, 2017. You further assert that "[c ]ontrary to your request, an arraignment does not terminate an investigation. After careful consideration, disclosure of this recording would not be in the public interest because its release would prejudice effective law enforcement, investigation and criminal prosecution." In her appeal petition Attorney Brown indicates "[t]he contents of the tape have been disclosed in open court and, given the pending charges, undoubtedly already has been made available to the defendant." Attorney Brown continues by stating there is "no concern that revealing the tape likely would alter testimony, reveal sources of information, or in any way prejudice the investigation." In light of the above-referenced court proceeding, it is unclear how the responsive tape recording may be withheld in its entirety under Exemption (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 1O (a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). It is also unclear how producing this tape recording would disclose confidential investigative techniques, procedures, or sources of information, nor is it clear how disclosure would dissuade individual citizens to come forward and speak freely with police concerning matters under investigation. See WBZ-TV 4 v. Dist. Attorney for Suffolk Dist., 408 Mass. 595, 603 ( 1990) (discussing the policy concerns associated with Exemption (f)).

Laura A. McLaughlin, Esq. SPR17/914 Page 3 July 20, 2017 Therefore, I find the DAO has not met its burden to establish how production of this particular responsive tape recording "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 an attorney on my staff contacted you and you indicated the DAO would provide a supplemental response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO provide Attorney Brown 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, ~~ Rebecca S. Murray Supervisor of Records cc: Vanessa M. Brown, Esq.