Michael J. Widmer v. Office of the District Attorney - Middlesex District (SPR 20180290)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 21, 2018 SPRlS/290 Robert Bender, Esq. Assistant District Attorney Office of the District Attorney - Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Bender: I have received the petition of Michael Widmer appealing the response of the Office of the District Attorney -Middlesex District (DAO) to a request for public records. G. L. c. 66, § lO(A); see also 950 C.M.R. 32.08(1). Specifically, on January 16, 2018, Mr. Widmer requested "all records relating to the investigation of the murder of Jane Britton in Cambridge MA on January 7, 1969." In a response dated January 30, 2018, the DAO denied access to records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Previous appeals This request is similar to a previous request by Mr. Widmer. See SPRl 6/1140 Determination of the Supervisor of Records (December 20, 2016); SPRl 7/078 Determination of the Supervisor of Records (January 27, 2017); SPRl 7/207 Determination of the Supervisor of Records (March 6, 2017); SPRl 7/562 Determination of the Supervisor of Records (April 25, 2017); SPRl 7/793 Determination of the Supervisor of Records (June 26, 2017, September 8, 2017); SPRl 7/1379 Determination of the Supervisor of Records (October 16, 2017). In my September 8th determination I found that upon in camera review of records, the DAO had demonstrated the active and ongoing nature of this investigation. I also found that the DAO must provide a supplemental response explaining how release of any record "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). The DAO provided this response on September 25, 2017. In my October 16th determination I found that 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, the DAO had met its 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

Robert Bender, Esq. SPR18/290 Page2 March 21, 2018 burden to withhold responsive records under Exemption (f). I also noted that a change in the status of the investigation could impact the applicability of 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. 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. In its January 30th response the DAO indicates "[t]he work of this investigation continues to be active, steady, and meaningful. At its core now is pursuit of modern DNA investigative options." You further note "[t]he need to safeguard the investigation remains as this Office represented in its September, 2017 letter, and as the Supervisor quoted in SPRl 7/1379 ...." The DAO also asserts "[i]t is not possible for this Office or its investigators to say with precision when this or any investigation will be completed. Your request can be treated as a standing request that will be readdressed at that time." In camera inspection In order to analyze the legal basis of the DAO's current position, it is the finding of this office that an in camera review of an unredacted copy of a representative sample of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the DAO. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o Jn doubtful questions an in camera inspection may be appropriate"). These records should, for example, demonstrate the extent to which the investigation remains active.

Robert Bender, Esq. SPR18/290 Page 3 March 21, 2018 The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation ofits own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. This office will coordinate with the DAO to obtain unredacted copies of a representative sample of responsive records for in camera inspection without delay. The DAO may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Widmer Robert A. Bertsche, Esq.