Melissa Hanson v. Massachusetts State Police (SPR 20180602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 15,2018 SPR181602 Jenniffer P. Miggliaccio, Esq. Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Frarningham, MA 0 17 02 Dear Attorney Miggliaccio: I have received the petition of Melissa Hanson appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, 5 1O A; 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, 5 7(26)(f). Previous appeal This request was the subject of a previous appeal. See SPR181366 Determination of the Supervisor of Records (April 4,2018 ). I closed SPR181366 by ordering the Department to provide Ms. Hanson with a response, provided in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. On April 23,201 8, the Department provided a response to Ms. Hanson. Unsatisfied with the Department's response, Ms. Hanson petitioned this office and this appeal, SPR181602, was opened as a result. Tlze 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. Miggliaccio, Esq. Page 2 May 15,2018 Attorney for the Norfolk Dist. v. Flatlep, 419 Mass. 507, 51 1 (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. Exemption V) (0 In its April 23rdr esponse, the Department cites Exemption as applicable to withhold the 91 1 recording and explains the record is being withheld "for two separate reasons: (1) for the purpose of encouraging full participation by voluntary witnesses so that they will speak openly to law enforcement; and (2) for the purpose of safeguarding the unsolved homicide investigation." 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. Bougas v. Chief of Police of Lexington, 371 Mass 59,62 (1 976). 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. 28 1,290 n. 18 (1 979). 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 considered not only from the viewpoint of the public, but also from the vantage of those who are a. familiar with the individual and his career." at 43 8.

Jenniffer P. Miggliaccio, Esq. Page 3 May 15,2018 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." Bouaas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Identi&ing witness information In my April 4 ' determination, I found that although the Department claimed Exemption (f) permits withholding of identifying information of voluntary witnesses, it is unclear why redaction is not possible to preserve witness anonymity. SPR181366. In its April 2jrdr esponse, the Department asserts that "[a] person's voice and audio recording of a 91 1 call is identifying. In this instance, the 91 1 recording cannot be redacted since the caller's voice is identifiable." The Department indicates that "the statements made during the course of the 91 1 call reference the identity of the caller and refer to detailed information." Despite the Department's response, it remains unclear why the responsive 91 1 call audio cannot be redacted, transcribed or modified to preserve witness anonymity. See Antell, 52 Mass. App. Prejudice to effective law enforcement In my April 4thd etermination, I found that 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 (f). SPR1813 In its April 23rdr esponse, the Department indicates that "limited information has been released for the purpose of seeking the public's assistance." It further indicates that "[rleleasing 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." Although, the Department indicates that the record is being withheld "for the purpose of encouraging full participation by voluntary witnesses so that they will speak openly to law enforcement" and "for the purpose of safeguarding the unsolved homicide investigation," which it indicates is ongoing, the Department's response does not provide supporting information concerning how disclosure would compromise investigative efforts as required by Exemption (f). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory

Jenniffer P. Miggliaccio, Esq. Page 4 May 15,2018 exemptions are narrowly construed and are not blanket in nature). The Department is reminded that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). Consequently, I find that the Department has not met its burden to establish how the responsive record may be withheld under Exemption (f) in its entirety. 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. Order Accordingly, the Department is hereby ordered to provide Ms. Hanson with a response to the request, 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