Michael J. Widmer v. Office of the District Attorney - Middlesex District (SPR 20171379)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 16, 2017 SPR17/1379 Elizabeth May, Esq. Assistant District Attorney Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney May: I have received the petition of Michael Widmer appealing the response ofthe Office of the District Attorney- Middlesex District (DAO) to a request for public records. G. L. c. 66, § 10(A); see also 950 C.M.R. 32.08(1). Specifically, in November 2016, Mr. Widmer requested· "to review the entire police and prosecutorial files including summaries, interview, notes, etc." of a specifically identified investigation. I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. Previous appeals This request was the subject of previous appeals. See SPR16/1140 Determination of the Supervisor of Records (December 20, 2016); SPR17/078 Determination ofthe Supervisor of Records (January 27, 2017); SPR17/207 Determination ofthe Supervisor of Records (March 6, 2017); SPR17/562 Determination of the Supervisor of Records (April25, 2017); SPR17/793 Determination of the Supervisor ofRecords (June 26, 2017, September 8, 2017). In my September 8th determination I found that upon in camera review of records, the DAO demonstrated the active and ongoing nature of this investigation. However, I ordered the DAO to provide Mr. Widmer with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO provided a response dated September 25, 2017. Mr. Widmer objects to this response and SPR 17 /13 79 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

Elizabeth May, Esq. SPR17/1379 Page 2 October 16, 2017 The DAO's September 25th response In its September 25th response the DAO provided certain responsive photographs to Mr. Widmer. However, the DAO is withholding the remaining responsive records under Exemption (f). Exemption (j) 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. The DAO asserts that it "has reviewed the remainder of our file in accordance with our Policy of Disclosure of Information from Unsolved Cases Pursuant to Public Records Requests and has determined that disclosing additional contents of the Commonwealth's investigatory file would impair the ongoing homicide investigation." You further explain that "[p] artial disclosure of even apparently innocuous information from the Commonwealth's investigatory file could taint the memories of potential witnesses, impair future interviews with potential suspects, cause the destruction or secreting of potential evidence, assist potential suspects by informing them of information known to the Commonwealth, assist suspects by revealing potential leads that investigators may follow, or impede a potential defendant's right to select a jury that is untainted by undue pre-trial publicity." In light of the active and ongoing nature of the investigation, coupled with the DAO's explanation regarding the negative impact even partial disclosure would have on the investigation and any potential prosecution, I find the DAO has met its burden to withhold

Elizabeth May, Esq. SPR17/1379 Page 3 October 16, 2017 responsive records under Exemption (f). It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Widmer Robert A. Bertsche, Esq.