Marshall Daley v. Department of State Police - Legal Office (SPR 20180334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 29,20 18 SPR181334 Daniel Brunelli, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 0 1702 Dear Attorney Brunelli: I have received the petition of Marshall Daley appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Daley requested a copy of all internal affairs records of an identified Department Trooper pertaining to, but not limited to, Mr. Daley's complaint against the identified Trooper, and the disciplinary actions between January 1,2014-January 26,201 8. The Department denied Mr. Daley's request in its entirety pursuant to Exemption (f) of the Public Records Law. Unsatisfied with the Department's response, Mr. Daley petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, 10A(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) (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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 1 1 (1 995) (custodian has the burden of establishing the applicability of an exemption). 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

Daniel Brunelli, Esq. Page 2 March 29,2018 The Department's February 21,2018 response In its February 2 1 response, the Department informed Mr. Daley that the records are St required at a future trial board regarding the internal affairs investigation. Your response indicated that at the close of the trial board's proceedings concerning the identified Department Trooper, the Department will provide the requested records to Mr. Daley. At this time and until the trial board proceedings have ended, the Department is withholding the internal affairs investigation records, in their entirety, pursuant to Exemption (f). fi Exemption 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 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. Bouyas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. 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 id. at 289-90. In the Department's February 21'' response and in a March 23rd conversation with a Public Records Division attorney, you indicated that the records have been withheld due to a future trial board proceeding involving the identified Trooper. The Department contends that if the internal affairs records are disclosed prior to the conclusion of the trial, it would have a prejudicial effect on the trial board and taint potential witness testimony; therefore, the Department is withholding the records in their entirety under Exemption (f). It is unclear whether the records could be provided in a redacted form. In camera review At this time, in order to facilitate a final determination as to the applicability of the exemption claim made by the Department to the entirety of the records, I request that the Department provide this office an un-redacted copy of the responsive internal affairs

Daniel Brunelli, Esq. Page 3 March 29,2018 investigation records for in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the withheld portions of the records. 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, 3 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 (19 8 1) (administrative agency entitled deference in the interpretation of its 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 9 50 C.M.R. 32.08(4)(c). Furthermore, 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. The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records, or redacted portions of the responsive records. However, 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. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the internal affairs investigation records without delay. Sincerely, Rebecca S . Murray C/ Supervisor of Records cc: Marshall Daley