Bradley W. Phipps, Esq. v. Office of the District Attorney - Northwestern District (SPR 20170936)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 19,2017 SPR171936 Cynthia M. Von Flatern, Esq. Assistant District AttorneyIRecords Access Officer Northwestern District Attorney's Office One Gleason Plaza Northarnpton, MA 0 1060 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 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 8,2017, Attorney Phipps requested a copy of a "police investigative report from the Shelburne, Massachusetts Police Department." In a response dated June 20,2017, the DAO denied his request claiming the responsive record may be withheld under Exemption (f) of the Public Records Law. G. L. c. 4, § 7 (26)(f). Previous appeal This request was the subject of previous appeals. See SPR171495 Determination of the Supervisor of Records (April 13, 201 7) and SPR 171632 Determination of the Supervisor of Records (May 23,2017). I closed both appeals with the proviso that the DAO provide Attorney Phipps with a supplemental response. The DAO provided its most recent response on June 20, 2017 denying access to the records. Unsatisfied with the DAO's response, Attorney Phipps petitioned this Office and this appeal was opened as a result. Purpose of request Please note that the reason for which a requester 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 requesters. 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 Bowas v. Chief of Police of Lexin%ton,3 71 Mass. 59, 64 (1976). Accordingly, Attorney Phipps' purpose in making the request has no bearing on the public status of any existing 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

Cynthia Von Flatern, Esq. Page 2 July 19,2017 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, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(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, 5 10A(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, 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 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley ,419 Mass. 507, 51 1 (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, 5 lO(b)(viii); see also 950 C.M.R. 3,2.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlt e DAO 's June 2ot" response In its June 2othr esponse the DAO denied access to the responsive record under Exemption (f) of the Public Records law. G. L. c. 4, 5 7(26)(f). Exemption @,l 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 prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

Cynthia Von Flatern, Esq. SPR17t936 Page 3 July 19,2017 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, 371 Mass at 62. 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. 28 1, 290 n. 18 Id. (1979). Exemption (f) does not provide a blanket exemption for all investigative materials. at 289. Instead it 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 "I have reviewed anew certain investigatory documents in NWDAO's possession . . . in order to determine whether any portion of these documents could be released to the public without disclosing witness identities and confidential investigative techniques. . . ." However, "[alfter review, I must advise you that there is no portion of reports that could be disclosed without compromising the goals of the investigative exemption." The DAO has not provided the necessary specificity concerning the records it compiled during the investigation and those records that cannot be redacted. Also the DAO has not provided any information that will support the existence of any confidential investigative techniques that are unique to the investigation and how public disclosure of even redacted records will so prejudice the possibility of effective law enforcement in future investigations. Based on the DAO's June 2oth and April 28thr esponses it is still unclear which records the DAO has in its custody that it is withholding in their entirety under Exemption (f). The DAO's June 2oth response did not comply with the April 28thD etermination to explain whether there are any portions of the responsive record that could be produced without disclosing any 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). As requested, Attorney Phipps would like to receive any non-exempt portion of the record that would give an idea as to when the allegations arose and the means and manner in which the allegations were made. It is unclear how certain information like the date and time of the investigation will reveal the identities of witnesses or disclose confidential investigative techniques. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 3 10(a). Consequently I find that the DAO has not met its burden in explaining why any non-exempt, segregable portions of the responsive records cannot be provided. I understand a Public Records Division staff attorney contacted you about this.

Cynthia Von Flatern, Esq. Page 4 July 19,2017 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.A ttorney Phipps may appeal the substantive nature of the DAO's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, C/ Rebecca S. Murray Supervisor of Records cc: Bradley Phipps, Esq.