G Baxter v. Office of the Attorney General (SPR 20171498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 1, 2017 SPR17/1498 Mariya S. Treisman, Esq. Special Assistant Attorney General General Counsel's Office Office of the Attorney General One Ashburton Place, 201 h Floor Boston, MA 02108 Dear Attorney Treisman: I have received the petition of G. Baxter appealing the response of Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, G. Baxter requested "all grand jury documents and all criminal documents" pertaining to a particular attorney. In a response dated October 18, 2017 the AGO denied access to responsive records under Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f); G. L. c. 6, §§ 167, 172; G, L. c. 213, § 3; G. L. c. 234A, § 8; G. L. c. 277, § 5; Mass. R. Crim. P. 5(d). 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 . .m ust 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

Mariya S. Treisman, Esq. SPR17/1498 Page2 November 1, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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, 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. Grand jury documents Grand jury minutes and materials inherently relate to an investigation. Even where an investigation is closed, the minutes necessarily contain witness statements in the form of testimony. The grand jury process is dependent upon witnesses coming forward and testifying freely. The requirement of secrecy in grand jury proceedings is deeply rooted in Massachusetts common law. WBZ-TV4 v. District Attorney for the Suffolk Dist, 408 Mass. 595, 599 (1990). The rationale for such secrecy is to encourage the full and free disclosure of information concerning the commission of a crime, and to allow the utmost freedom of deliberation to the grand jury. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,219 n.lO (1979). Disclosure of grand jury minutes and materials would defeat the purposes of grand jury secrecy. Accordingly, the AGO may withhold grand jury minutes and materials pursuant to Exemption (f).

Mariya S. Treisman, Esq. SPR17!1498 Page 3 November 1, 2017 Remaining responsive records With respect to the remaining requested records, specifically "all criminal documents," it is unclear whether G. Baxter is seeking records other than grand jury documents. See G.L. c. 66, § lO(a)(i) (the request must reasonably describe the public record sought). In light of the ambiguity regarding the records sought, G. Baxter has not specifically described the nature of his appeal. See 950 C.M.R. 32.08(1 )(f) ("all petitions for appeal shall be in writing and shall specifically describe the nature of the requester's objections to the response or failure to timely respond"). G. Baxter may re-submit his appeal with additional information regarding the records sought. Rebecca S. Murray Supervisor of Records cc: G. Baxter Lorraine Tarrow, Esq.