Nicole M. Avitabile, Esq. v. Massachusetts State Police (SPR 20180128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Connnonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2018 SPR18/128 Siobhan Kelly, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Kelly: I have received the petition of Nicole M. Avitabile, Esq. appealing the response of the Department of State Police-Office of the Chief Legal Counsel (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 10, 2018, Attorney Avitabile requested "any and all records related to the accident that occurred on 10/0112017 in Sturbridge, Massachusetts that are in your possession custody and/or control involving [an identified individual]." Attorney Avitabile noted that "[r]ecords should include, but not be limited to, accident reports, photographs, videos, and reconstruction reports." The Department provided a response on January 26, 2018, in which it denied access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department's response, Attorney Avitabile petitioned this office and this appeal, SPR18/128, 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); 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. 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

Siobhan Kelly, Esq. SPR18/128 Page 2 February 9, 2018 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 Department's January 151 and 26"' responses h In its January 26, 2018 response, the Department indicated that it responded to Attorney Avitabile's request on January 15,2018. The Department asserted that the "accident remains the subject of an on-going investigation and the report is not yet complete." The Department indicated that "[t]his means that a final report has not yet been generated and approved by the investigation trooper's superior. As such the Department denied your request under the investigative exemption- G. L. c. 4, § 7, cl. 26(f)." Exemption (/) The Department indicated that it withheld responsive records pursuant to Exemption (f) of the Public Records Law. 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. The Department's response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(d)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... ").

Siobhan Kelly, Esq. SPR18/128 Page 3 February 9, 2018 While the Department claims the responsive records pertain to an ongoing investigation, it does not identify the records it has in its possession nor does it describe how the requested records are part of the investigation. See id. Also, the Department did not demonstrate how disclosure of the responsive records "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). Further, the Department did not explain why the records are being withheld in their entirety under Exemption (f). See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Consequently, I find the Department has not met its burden to withhold responsive records under Exemption (f). Conclusion Accordingly, the Department is hereby ordered to provide Attorney Avitabile responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days ofthe date of this determination letter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Nicole M. Avitabile, Esq.