Shawn Musgrave v. Massachusetts State Police (SPR 20171310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 20, 2017 SPR17/1310 Jenniffer Migliaccio, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Migliaccio: I have received the petition of Shawn Musgrave appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Musgrave requested: 1) All correspondence (including emails, memos and other communications) between state police officers (including but not limited to Det. Captain L'Italien and Capt. James Coughlin) and Assistant Attorney General Thomas Caldwell to discuss emails requested as part ofthe Velis-Merrigan investigation into alleged prosecutorial misconduct in handling evidence from Sonja Farak. 2) All correspondence (including emails, memos and other communications) between state police officers (including but not limited to Det. Captain L'Italien and Capt. James Coughlin) and retired judges Peter Velis and Thomas Merrigan regarding their investigation into alleged prosecutorial misconduct in handling evidence from Sonja Farak. Previous appeal This request was the subject of a previous appeal. See SPR17 /942 Determination of the Supervisor of Records (July 25, 2017). I closed SPR17/942 by ordering the Department to provide Mr. Musgrave with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded on August 25, 2017 by denying access to responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Mr. Musgrave appealed and SPR17/131 0 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

Jenniffer Migliaccio, Esq. SPR17/1310 Page 2 September 20, 2017 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 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 ofBoston, 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 the Department's August 251 h response you explain there are eighteen responsive records. You indicate that "any type of correspondences between Captain L'Italien and Captain

Jenniffer Migliaccio, Esq. SPR17/1310 Page 3 September 20, 2017 Coughlin with the AAG' s regarding this investigation are not a matter of public record pursuant to both the law enforcement investigative exemption and G.L. c. 4, §7, cl. 26 (f)." The Department cites case law, such as Attorney Gen. v. Tufts, 239 Mass. 458, 490-491 (1921) and Dellwood Farms v. Cargill, Inc., 128 F .3d 1122 (7th Cir. 1997), in support of its position regarding the applicability of the "law enforcement investigative privilege." You note that "[i]n this case it is essential that G.L. c. 4, §7, cl. 26 (f) exemption is considered in combination with the above-mentioned law enforcement investigative privilege." The Department indicates "[t]he disclosure of communications between the assigned investigators and the assistant attorney generals handling an investigation would detract from effective law enforcement and would prejudice investigative efforts." You further assert "[t]here is an interest in preserving the integrity of investigations and communications between law enforcement and any prosecutorial agency. Disclosure of investigative communications between detectives and prosecutors would compromise effective law enforcement since exposure of such information would hinder the investigative process." The Department provides that it is in the public interest "to prevent such disclosure in order to promote candid discussions between investigators and prosecutors without the risk of such correspondences being made public." The Department argues "communications between investigators and prosecutors should be afforded the same protections that are granted to voluntary witnesses pursuant to G.L. c. 4, §7, cl. 26 (f)." You also note that the Department "consulted with the Attorney General's Office which received the same request and whose position is consistent with this response." Despite this response, it remains unclear how the responsive records may be withheld in their entirety under Exemption (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10 (a ); Reinstein, 3 78 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Specifically, it is not evident how producing any portion of these records 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)). The Department has not met its burden to establish how responsive records may be protected in the same way that voluntary witness information can be withheld under Exemption (f). Further, the Department has not established how the cited case law operates in conjunction with Exemption (f) to allow withholding of responsive records in their entirety. Therefore, I find the Department has not met its burden to establish how production of any portion of the responsive records "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 a Public Records Division staff attorney cohtacted you and provided a copy of the file associated with this appeal.

Jenniffer Migliaccio, Esq. SPR17/1310 Page 4 September 20, 2017 Conclusion Accordingly, the Department is ordered to provide Mr. Musgrave 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: Shawn Musgrave