Ilya Zinov v. Department of State Police - Crime Lab (SPR 20180510)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 23, 2018 SPR18/510 Kc;rry A. Collins, Esq. Legal Counsel Massachusetts State Police Crime Lab 124 Acton Street Maynard, Massachusetts 01754 Dear Attorney Collins: I have received the petition of Mr. Ilya Zinov appealing the nonresponse of the Department of State Police - Crime Lab (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Zinov requested records related to a January 5, 2011 incident in Hyannis, Massachusetts. In a response dated March 28, 2018, the Department provided responsive records, with portions redacted pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, §7(26)(f). Unsatisfied with this response, which he claims was incomplete and redacted improperly, Mr. Zinov petitioned this office, and this appeal was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all goyernrnental 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. 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

Kerry A. Collins, Esq. SPR18/510 Page 2 April 23, 2018 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. The Department's March 281 response h In its March 28th, 2018 response, the Department provided responsive records with redactions. This response explains that "the Department has redacted the identity of the victim and witnesses in the records pursuant to G. L. c. 4, §7 cl. 26(f)." I understand a Public Records Division staff member contacted you regarding this matter, and you provided a supplemental response. The Department's April 2rfh response In its April 20th, 2018 response, the Department provided additional responsive records, and further elaborated on its decision to redact the responsive records. Specifically, the Department explained how exempting the identity of voluntary witnesses from disclosure encourages individual citizens to come forward and speak freely with police concerning matters under investigation. Exemption (f) In its response, the Department indicated its intent to withhold portions of the 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, 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

Kerry A. Collins, Esq. SPR18/510 Page 3 April 23, 2018 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law ~nforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. 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 disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Therefore, I find the Department has met its burden to explain how the records were redacted to omit information that could reveal the identities of voluntary witnesses. The Department acted within its discretion in making such redactions to the responsive records under Exemption (f). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Zinov is not satisfied with the resolution of this administrative appeal, please be advised that this·office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: Mr. Ilya Zinov