Thomas Greve v. Cape & Islands District Attorney's Office (SPR 20171772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 16, 2018 SPR17/1772 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, § 1O A; 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." ' Previous appeal In his previous appeal petition Mr. Greve objects to the withholding of materials in the DAO's custody. See SPRl 7/1693 Determination of the Supervisor of Records (December 22, 2017). I closed SPRl 7/1693 by ordering the DAO to provide Mr. Greve with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO responded in a letter dated December 28, 2017 in which it claims responsive records may be withheld under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(£). Mr. Greve appealed and SPRl 7/1772 was opened as a result. 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, § lOA(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). 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 SPR17/1772 Page2 January 16, 2018 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, § IO(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. 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 ofrecords 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. Current Appeal Based on the DAO's January 10, 2018 response, the DAO did not meet its burden to withhold documents pertaining to the investigation at issue pursuant to Exemption (f). In particular, the DAO has not established how this investigation remains ongoing and how disclosure would prejudice effective law enforcement. Exemption (f) may not be used as a blanket exemption for the withholding of all records pertaining to an investigation. Consequently, the DAO must provide a valid explanation for the use of such an exemption as mentioned above. In the DAO's January 10, 2018 response concerning the specific request for genetic testing materials you assert, "[t]he Massachusetts State Police detectives assigned to the District Attorney's Office investigate all unattended deaths. The Office of the Chief Medical Examiner accepted jurisdiction of the case and public records request concerning this case should be

Tara Miltimore SPRl 7/1772 Page 3 January 16, 2018 brought to their attention." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). The DAO must confirm whether it possesses such records. Conclusion Accordingly, the DAO is ordered to produce any responsive records in its possession in a manner consistent with this determination, the Public Record Law, and its Regulation. G. L. c. 66, § lO(a)(iii). Mr. Greve may appeal the substantive nature of the revised response within ninety days. See 950 C.M.R. 32,08(1). Sincerely, ~UIT~ Supervisor of Records cc: Thomas Greve