Jose L. Negron v. Executive Office of Public Safety and Security - Office of Investigative Services (SPR 20180026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary.of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 16, 2018 SPR18/026 David Shaw Executive Office of Public Safety and Security Office of Investigative Services 50 Maple Street, Suite 3 Milford, MA 01757 Dear Mr. Shaw: I have received the petition of Jose Negron appealing the response of the Executive Office of Public Safety and Security - Office oflnvestigative Services (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 29, 2017, Mr. Negron requested records and investigative reports regarding the security threat group management. Mr. Negron noted that this request includes, but not limited to, "(1) Policy Regulation 103 DOC 514.00 ('STG'), (2) Policy Regulation 103 DOC 527. 00 ('SRI'), (3) Investigative reports or Investigation specifically from December of 2010 through January 24th 2017 by the I.P.S., ( 4) Reports of closing investigation, (5) Any and all information, data, pictures; not otherwise exempted by statute, (6) Periodic Review reports ('STG') validation, (7) STG Hearing Forms signed/dated, (8) Conflicts Submitted Forms, [and] Interview Reports on ('STG') conflicts submitted by the ('IPS') Department." The Office provided a response on December 12, 2017 in which it denied access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(:t). Unsatisfied with the Office's response, Mr. Negron petitioned this office and this appeal, SPRl 8/026, 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). 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, § lO(b)(iv) (statutory duty to identify any records, categories of records or portions of records that the agency or municipality intends to 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

David Shaw SPR18/026 Page 2 January 16, 2018 withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office's December Jilt response In its December lih response, the Office indicated that Mr. Negron's request pertaining to Security Threat Groups is denied. The Office indicated that "[t]he Department's Security Threat Group Management policy, 103 DOC 514, and the Department's Security Risk Inmates policy, 103 DOC 527, are private policies and as such the Department will not be providing you copies of these policies. Any and all other records and reports pertaining to Security Threat groups constitute intelligence information which is not public and is exempt from disclosure pursuant to G. L. c. 4, § 7(26)(f)." Exemption (I) In its response, the Office indicated its intent to withhold responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f), the investigatory exemption, 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, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of

David Shaw SPR18/026 Page 3 January 16, 2018 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Office's initial December lih response did not contain the specificity required in a denial of access to public records. The response does not offer any specific explanation as to how disclosure of the responsive record will negatively impact an investigation nor how it would reveal particular investigative techniques that are unique to the Office. Instead, the Office's response merely cites Exemption (f) without any further explanation as to the exemption's applicability to the requested records. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. While the Office claims the responsive records "constitute intelligence information," it does not explain how disclosure of the responsive records or any segregable portion thereof "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this matter. Conclusion Given that the Office did not overcome the presumption that the requested records are public by not meeting its statutory burden to provide the specific reasons for withholding the records, accordingly, the Office is hereby ordered to provide responsive records in a manner consistent with the Public Records Law, its Access Regulations, and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Negron may appeal the substantive nature of the Office's response within ninety days. See 950 C.M.R. 32.08(1). The Office may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~r~ Supervisor of Records cc: Jose Negron