Todd Wallack v. North Attleboro, Town of - Police Department (SPR 20171143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 6, 2017 SPR17/1143 John J. Reilly Chief of Police North Attleboro Police Department 10 2 South Washington Street North Attleboro, MA 02760 Dear Chief Reilly: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the North Attleboro Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested "any and all records" pertaining to Aaron Hernandez. Mr. Wallack provided categories of records that should be included with the requested records. Previous appeals This request was the subject of previous appeals. See SPR17/727 Determination ofthe Supervisor of Records (June 7, 20 17); SPR17 /815 Determination of the Supervisor of Records (June 29, 2017); SPR17/980 Determination ofthe Supervisor of Records (August 2, 2017). I closed SPR17/980 by ordering the Department to provide Mr. Wallack with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded in a letter dated August 17 , 2017 in which it claims responsive records may be withheld in their entirety under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). I understand the content of this response is identical to that of the Office ofthe District Attorney-Bristol District (DAO)'s August 17, 2017 letter regarding this request. Further, the DAO's August 1i h letter references both SPR17/986 (previous appeal with the DAO) as well as SPR17 /980 (previous appeal with the Department). Mr. Wallack appealed and SPR17 /1143 was opened as a result. 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

John J. Reilly SPR17/1143 Page 2 September 6, 201 7 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, § 10(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. 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 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. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r 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 Reinstein, 378 Mass. at 289-90. The DAO previously provided a response dated July 17, 2017 in which it indicated there are approximately 4,000 individual responsive records, which include "police reports generated

John J. Reilly SPR17/1143 Page 3 September 6, 2017 by multiple agencies, data downloaded from cell phones, audio and video recordings of witness interviews, surveillaqce videos, crime scene photographs, an autopsy report, minutes from the grand jury proceedings, and many more items." The DAO claims it is "obliged to protect our ability to prosecute the case at retrial which, in this case, turns on our ability to try the case before an impartial jury." The DAO states "if the records are publicly disseminated and the jury venire already exposed to the contents of the records, the effort to present the testimony in the appropriate manner at trial would be virtually meaningless." ih In the DAO's August 1 response Attorney Yul-mi Cho explains that with respect to the impact of a potential retrial of Mr. Wallace, "Mr. Hernandez and Mr. Wallace were tried under the theory of joint venture." Attorney Cho continues by stating "where the co-defendants were acting together to commit the crime, the evidence of one's guilt is inextricably linked to the evidence of the other's guilt. In short, the cases are built on and rely on the same evidence." With respect to the applicability of a gag order from 2014, Attorney Cho claims "[n]othing about the current procedural posture provides a basis for the commonwealth to abandon either the principles of the gag order or to flout the court's stated intention to prevent public disclosure of all of the evidence unless and until there is final resolution of these matters." Regarding the ongoing nature of this matter Attorney Cho states "[a]s we have repeatedly explained, our prosecutions against Mr. Hernandez and Mr. Wallace are still pending. The Bristol District Attorney has not publicly disseminated any of the requested materials." The DAO further notes that "[t]hese materials were necessarily compiled outside of the public view and continue to be maintained that way. It is not possible for the District Attorney to predict what lies ahead in these matters and in which forum and under what circumstances it will need to litigate these cases based upon future rulings by the Court." The DAO provides information regarding the prosecution process by noting that "these cases are in no different posture today than they were in prior to trial. The jury trials in these matters were simply one step in the process of prosecuting the cases from investigation to final resolution." Attorney Cho asserts that "[d]isclosure of documents outside of the litigation of the cases is inconsistent with the obligations of the District Attorney, the orders of the court and has the very real possibility ofprejuqicing the effective prosecution of these matters by publicly disclosing information that the District Attorney is required to safe-guard in the situation." The DAO concludes by stating "[f]or these reasons, we continue to assert the investigative exemption under G. L. c. 4, §7, cl. 26(±) on the responsive records until the conviction for Mr. Wallace has been affirmed by the Appeals Court." Production ofp reviously disclosed records Although Attorney Cho states "[t]he Bristol District Attorney has not publicly disseminated any of the requested materials," it is unclear which responsive records, despite the 2014 gag order, appear in public court filings. It also remains unclear how disclosure of previously disclosed records through the prior trial or motions would taint the jury pool or hinder

John J. Reilly SPR17/1143 Page 4 · September 6, 2017 the prosecution's ability to participate in any potential re-trial. In particular, the DAO and the Department have not met their burden to show how disclosure of these records would expose the jury venire to any information it would not already have access to as a result of previous disclosure. Segregable portions; applicability ofE xemption (f) to all records Further, it is unclear whether any portions of the responsive records could be provided that would not "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). In particular, the DAO and the Department have yet to demonstrate that every record responsive to the request, which seeks "any and all records" pertaining to Aaron Hernandez, would be related to any potential re-trial for Mr. Wallace. As such, the Department has not met its burden to establish how the responsive records may be withheld in their entirety under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). I understand a Public Records Division staff attorney contacted you about this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack 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 .rna. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack