Joseph A. Padolsky v. Office of the District Attorney - Middlesex District (SPR 20171215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 13, 2017 SPRl 7/1215 Asher Kim, Esq. Assistant District Attorney Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Kim: 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 which involve 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. Previous Appeal This requested record was the subject of a prior appeal. See SPRl 7/1015 Determination of the Supervisor of Records (August 7, 2017). I closed this appeal with the proviso that the DAO provide Attorney Padolsky with a supplemental response in a manner consistent with the Public Records Law, and its regulations. Following the August ih determination, the DAO provided a supplemental response to Attorney Padolsky on August 28, 2017 in which it continues to deny access to the records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(±). Unsatisfied with the DAO's response, Attorney Padolsky petitioned this Office and this appeal, SPRl 7 /1215, was opened as a result. 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, § 1O A( d); 950 C.M.R. 32.03(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical . 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

Asher Kim, Esq. SPRl 7/1215 Page 2 September 13, 2017 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, § lO(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, § 1 O(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 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 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. The DAO's August 2th response In the DAO's August 28th response, it indicated that" ... [i]n our response letter dated July 21, 2017, this Office informed you that all records were being withheld from disclosure pursuant to [E]xemption (f) .... As a preliminary matter, this Office can confirm that, separate and independent from [the Detective's] termination hearing, our Office's investigation remains active and ongoing. Although this Office declines to comment upon the existence or focus of matters that may be before the grand jury, the records you are seeking directly relate to an active and criminal investigation. Accordingly, this Office is denying your request pursuant to [E]xemption (f)." The DAO also indicated that, "[t]he general purposes of [E]xemption (f) include the avoidance of premature disclosure of the Commonwealth's case prior to trial and the prevention of disclosure of confidential techniques, procedures or sources of information. ... Public disclosure is presumptively prejudicial to effective law enforcement where the records requested contain details related to the nature and circumstances of the case, all of which the Commonwealth may introduce into evidence should any individual be charged." The DAO further explained that "[t]he interests of this Office to maintain full control over all relevant information are especially heightened where, as here, the investigation remains

Asher Kim, Esq. SPRl 7/1215 Page 3 September 13, 2017 active and no charge is yet to be filed in relation to the investigation. Public disclosure of even seemingly innocuous details at this juncture may taint the integrity of the investigation by exposing potential witnesses and jurors to prejudicial information. Therefore, this Office must withhold all information pertaining to the direction and content of the investigation in order to prevent premature disclosure of information and statements that may be used as evidence in criminal proceedings .... This Office however, recognizes that records related to this investigation would be available for public disclosure upon conclusion of relevant investigation and prosecution." Exemption (f) The DAO continues to indicate its intent to withhold the records 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 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, 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 Reinstein, 378 Mass. at 289-90. In its August 28th response, the DAO clarified that the specific Detective's termination hearing was separate from its ongoing investigation. However, the DAO did not sufficiently comply with my August ih determination requiring the DAO to explain which .records it has in its possession that it is withholding in its entirety. The DAO must therefore explain which responsive records it is withholding from disclosure and how the records cannot be segregated or redacted. Although the DAO in its response claimed that "public disclosure of even seemingly innocuous details at this juncture may taint the integrity of the investigation by exposing potential witnesses and jurors to prejudicial information," I understand it has provided some records to reporters from the Somerville Journal. Consequently, it is·unclear how segregating or redacting the records and providing non-exempt portions is not plausible in this instance. The

Asher Kim, Esq. SPR17/1215 Page4 September 13, 2017 statutory exemptions are narrowly construed and are not blanket in nature. Reinstein, 378 Mass. at 281, 289-290. Also, Attorney Padolsky, in a separate public records request to the City of Somerville, received an email communication dated May 11, 2017, between a specific Deputy Chief of Police and your Office which stated that" ... [a]t this point, both the District Attorney's [O]ffice and the Attorney General's [O]ffice are declining criminal charges." Based on this information, it is unclear how the criminal investigation is active and ongoing and why there remains a concern for potential witnesses and jurors when pursuing criminal charges has been declined and no charge has yet been filed in relation to the investigation as stated in your August 28th response. In light of the above information, the DAO must explain how the investigation remains active and ongoing. Further, the DAO in its response indicated that, "[p] ublic disclosure is presumptively prejudicial to effective law enforcement where the records requested contain details related to the nature and circumstances of the case, all of which the Commonwealth may introduce into evidence should any individual be charged." It remains uncertain how disclosure of 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), in light of the above information. I understand a Public Record Division staff attorney contacted you about this matter. Order Accordingly, the DAO is hereby ordered to provide Attorney Padolsky 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. Attorney Padolsky may appeal the substantive nature of the DAO's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Padolsky, Esq.