Thomas Greve v. Office of the District Attorney - Cape & Island District (SPR 20171693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 22, 2017 SPR17/1693 Tara Miltimore Records Access Officer Cape and Islands District Attorney Office 3231 Main Street P.O. Box 455 Barnstable, MA 02630 Ms. Miltimore: I have received the petition of Thomas Greve appealing the response of the Cape and Islands District Attorney Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Greve requested "that the Agency furnish copies of any materials in its custody related to genetic testing performed on an unidentified black male whose torso was discovered at Town Neck Beach in Sandwich, Barnstable County, Massachusetts, on June 4, 2014." Current appeal In his appeal petition Mr. Greve objects to the withholding of materials in the DAO's custody. The DAO cites Exemption (f) in support of these redactions. 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 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

Tara Miltimore SPRl 7/1693 Page 2 December 22, 2017 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. The DAO sent a response email to Mr. Greve on December 8, 2017 "in response to [his] request for information pertaining to the torso found at Town Neck Beach in Sandwich. Please be advised this is a pending, ongoing investigation and as such I cannot release any documents. M.G.L. c. 4,§7(26)(±))." Based on the DAO's response, the DAO has not met its burden to withhold documents pertaining to the investigation Mr. Greve is requesting. The DAO may not use Exemption (f) as a blanket exemption for the withholding of all records and must provide a valid explanation for the use of such an exemption. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO provide Mr. Greve 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: Mr. Thomas Greve