Becky Cooper v. Office of the District Attorney - Middlesex District (SPR 20171708)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 22, 2017 SPR17/1708 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 Becky Cooper of The New Yorker appealing the response of the Middlesex County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lO(A); see also 950 C.M.R. 32.08(1). Specifically, in July 2016, Ms. Cooper requested all of the documents in the DAO's possession concerning the homicide of a specifically identified individual, and all records related to its 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 SPR16/953 Determination of the Supervisor of Records (November 4, 2016); SPRl 7/212 Determination of the Supervisor of Records (March 3, 2017); SPRl 7/820 Determinations of the Supervisor of Records (June 20, 2017; September 8, 2017). In my September 8th determination I found that upon in camera review ofrecords, the DAO demonstrated the active and ongoing nature of this investigation. However, I ordered the DAO to provide Ms. Cooper 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. Ms. Cooper objects to this response and SPRl 7 /1708 was opened as a result. The DAO's September 2f11 response In its September 25th response the DAO provided certain responsive photographs to Ms. 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. SPRl 7/1708 Page2 December 22, 2017 Cooper. However, the DAO is withholding the remaining responsive records under Exemption (f). Exemption (I) 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)(±). 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. Boug as v. Chief of Police of Lexington, 3 71 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 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 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).

Elizabeth May, Esq. SPRl 7/1708 Page3 December 22, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Becky Cooper Robert A. Bertsche, Esq.