Joseph A. Padolsky v. Office of the District Attorney - Middlesex District (SPR 20171015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7, 2017 SPR17/1015 Deanna Deveney, Esq. Assistant District Attorney Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Deveney: I have received the petition of Joseph Padolsky, Esq. appealing the response of the Middlesex District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 11, 2017, Attorney Padolsky requested "any and all records relative to matters against" an individual involving an identified Somerville Police detective. Attorney Padolsky also requested a "copy of any and all records of communication between the Middlesex County District Attorney's Office (including email communication) and" identified police officials, "or the office of internal affairs/professional standards regarding" the specified detective. In a response dated July 20, 2017, the DAO denied his request under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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, § 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, § 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, § 1 O(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. 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

Deanna Deveney, Esq. SPR17/1015 Page 2 August 7, 2017 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. Status of the requester Please note that the reason for which a requestor 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 requestors. 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Padolsky's purpose in making the request has no bearing on the public status of any existing responsive records. Furthermore, the discovery processes and the Public Records Law are distinct and independent venues 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; that does not mean that a party cannot obtain the same records through discovery processes. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). Therefore, Attorney Padolsky may wish to seek access to the record through the judicial system. The DAO's July 20th response In its July 20th response, the DAO denied access to the responsive record pursuant to G. L. c. 4, § 7(26)(±). The DAO indicated that "[u]nfortunately, at this time, this Office is unable to provide you with the requested records as those records directly relate to an active and open investigation." You also indicated that" ... [t]he general purposes of [E]xemption (f) include the avoidance of premature disclosure of the Commonwealth's case and the prevention of disclosure of confidential techniques, procedures or sources of information." Consequently, you indicated "[w ]here this Office is in the process of preparing for trial, disclosure of any records is presumptively prejudicial. Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,290 n.18 (1979) 0 0 0 ." 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

Deanna Deveney, Esq. SPR17/1015 Page 3 August 7, 2017 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. 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, 378 Mass. at 290 n.18. Exemption (f) invites a "case-by-case consideration" ofwhether 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. According to Attorney Padolsky, a termination hearing was scheduled July 31, 2017. If that was the case, the DAO must confirm whether the investigation is still active. From your July 20th response, it is unclear why the DAO is withholding all the records in its entirety. The DAO must explain which records it has in its possession and why the records compiled during the investigation cannot be redacted under Exemption (f). Under the Public Records Law, the statutory exemptions are narrowly construed; hence any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Id. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Further, the DAO did not provide supporting information concerning any confidential investigative techniques unique to this investigation such that disclosing any segregable portion "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). Consequently, I find that the DAO has not met its burden of specificity in explaining why the responsive record is withheld in its entirety under Exemption (f). I understand a Public Records Division staff attorney contacted you about this appeal. Conclusion Accordingly, whereas the DAO has indicated that it will provide Attorney Padolsky with a supplemental response, I will consider this appeal closed with the proviso that the DAO provides said 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. Attorney Padolsky may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1).

Deanna Deveney, Esq. SPR17/1015 Page 4 August 7, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Deanna Deveney, Esq.