Melissa Hanson v. Massachusetts State Police (SPR 20180366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 4, 2018 SPRlS/366 Jenniffer P. Migliaccio, Esq. Office of the Chief Legal Counsel Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Migliaccio: I have received the petition of Melissa Hanson appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Hanson requested an "audio recording" and "transcript of all calls to police on Thursday, March 1, 2018, regarding [a specified address]." The Department denied her request, claiming the responsive records are exempt from disclosure pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(±). 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, § 1O (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Jenniffer P. Migliaccio, Esq. SPR18/366 Page2 April 4, 2018 Department's March 19th Response Ms. Hanson requested a transcript of all calls to police on a certain date relating to a specified matter. It is uncertain whether the Department possesses any responsive transcripts. The Department must identify any requested public records or categories of public records that are not within its possession, custody, or control. G. L. c. 66, § 1O (b )(ii). Exemption (f) In its March 19th response, the Department indicates that it "has located a responsive 911 recording pursuant to [Ms. Hanson's] request," and "the Department considers the 911 recording to be exempt from disclosure pursuant to G.L. c.4, s.7, cl.26 (±)(investigatory 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 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 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be

Jenniffer P. Migliaccio, Esq. SPR18/366 Page 3 April 4, 2018 considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 4 3 8. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. The Department's response indicates that "[a] 911 caller is considered a voluntary witness. [Exemption] (f), therefore, allows the permanent withholding of the name(s) and identifying details of witnesses. A person's voice and audio recording of a 911 call is identifying. The investigative exemption allows an investigative agency to withhold from public disclosure any information contained in a statement which, if disclosed, would create a grave risk of directly or indirectly identifying the voluntary witness(es). Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass.438 (1983). Accordingly, the information you are seeking is exempt from public disclosure." Although the Department claims Exemption (f) permits withholding of identifying information of voluntary witnesses, it is unclear why redaction is not possible to preserve witness anonymity. See Antell 52 Mass. App. Ct. at 248. Additionally, the Department's response indicates that "this matter remains the subject of an ongoing investigation." The Department explains that "[r]eleasing preliminary information and investigative records regarding a pending investigation would detract from effective law enforcement and could prejudice investigative efforts as well as any potential prosecution. The Department is compelled to conduct a thorough and objective investigation of the events in this incident. There is an interest in preserving the integrity of the investigation and any subsequent prosecution. Similarly, the jury selection process could also be impaired if detailed facts were prematurely released prior to the prosecution of a case. Thus, the Department maintains the position that the records responsive to this request are exempt from public disclosure pursuant to [Exemption] (f). In light of the pending investigation, the records you seek are not subject to public disclosure at this time pursuant to [Exemption] (f)." Ms. Hanson contends in her March 21, 2018 appeal petition that certain information regarding this matter has already been released to the public by the Worcester County District Attorney's Office. Given that certain information concerning this case has already been made public, it is not certain how disclosure of the responsive records in their entirety "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). As a result, the Department has not met its burden of explaining with specificity how the record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket

Jenniffer P. Migliaccio, Esq. SPR18/366 Page 4 April 4, 2018 in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). I understand a member of the Public Records Division staff contacted your office about this matter, but was unable to reach you prior to the issuance of this determination. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the entire record, the Department is ordered to provide Ms. Hanson with a response, 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Melissa Hanson