Dan Glaun v. Massachusetts State Police (SPR 20180880)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 19, 2018 SPRlS/880 Daniel Brunelli, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Dan Glaun of Mass Live appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Glaun requested "[i]nvoices for all sales of surplus weapons from the State Police armory, from 1/1/2015 through May 23 2018" and "[a]ny audits or internal investigations of the armory or surplus weapon sales practices completed between 1/1/2010 and 5/23/2018." The Department denied his request, claiming that the responsive records are exempt from disclosure pursuant to Exemption (f) of the Public Records Law. G. L. C. 4, § 7(26)(f). This request was the subject of a previous determination and subsequent request for reconsideration. See SPR18/880 Determination of the Supervisor of Records (June 29, 2018; August 2, 2018). In my August 2nd determination, I found that the Department had not met its burden to withhold responsive records in their entirety under Exemption (f) of the Public Records Law. As a result, I ordered the Department to provide to provide Mr. Glaun with the records within ten business days or in the alternative provide this office with an un-redacted copy of the responsive records at issue for an in camera inspection without delay. This office had a meeting with a representative from the Department on November 29, 2018 with respect to the in camera review, and I would like to thank the Department for its cooperation. 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 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. SPR18/880 Page2 December 19, 2018 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); 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. Current appeal Exemption (f) 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, 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. 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. In its July 12, 2018 response, the Department asserts that "this information is currently

Daniel Brunelli, Esq. SPR18/880 Page 3 December 19, 2018 exempt from disclosure pursuant to G.L. c. 4, §7 (f), given that it directly relates to an active grand jury investigation by the Attorney General's Office and the belief that the public disclosure of the requested records could have an adverse impact on the investigation." The Department indicates "[t]he Massachusetts Attorney General's Office has advised the [Department] that the Attorney General's Office is conducting an active Grand Jury investigation of alleged criminal violations and that the Attorney General's Office believes that a public disclosure of the requested records could have an adverse impact on the Grand Jury investigation." The Department asserts that "the right to withhold [the records] is further strengthened given that the active investigation is a grand jury investigation. The Supreme Judicial Court has held that no member of the public has any right to access matters occurring before the grand jury in an ongoing investigation. WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 599-602, 562 N.E.2d 817 (1990). The requirement and need for secrecy in a grand jury is a fundamental tenet of the Massachusetts Judicial system. See Massachusetts Rules of Criminal Procedure 5(d)." · Based on its July 12th response, as well as the meeting for the in camera inspection, I find the Department has established that the records are related to an active and open investigation and that disclosure of the records would be detrimental to the investigation. Therefore, the Department has met its burden to justify withholding the responsive records in their entirety under Exemption (f). Please be aware that the change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Glaun 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, ·~~ Rebecca S. Murray Supervisor of Records cc: Dan Glaun