Melissa Hanson v. Massachusetts State Police (SPR 20180913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 2, 2018 SPRlS/913 Jenniffer P. Miggliaccio, Esq. Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 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, § 1 OA; 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)(f). Previous appeals This request was the subject of two previous appeals. See SPR18/602 Determination of the Supervisor of Records (May 15, 2018); SPR18/366 Determination of the Supervisor of Records (April 4, 2018). I closed SPR18/602 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 June 13, 2018, the Department provided a response to Ms. Hanson. Unsatisfied with the Department's response, Ms. Hanson petitioned this office and this appeal, SPR18/913, was opened as a result. The Publif: Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IOA(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). 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. SPR18/913 Page 2 July 2, 2018 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. Exemption (I) The Department's June 13th response indicates it "disagrees with the Supervisor's legal interpretation and application of [Exemption (f)] as it applies to this case, and maintains that, in fact, it has met its burden to apply such exemption." The Department includes a resuscitation of its April 23rd response in support of its Exemption (f) claim. In its June 13th response, the Department cites Exemption (f) as applicable to withhold the 911 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 G. L. C. 4, § 7(26)(:t). 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

Jenniffer P. Miggliaccio, Esq. SPR18/913 Page 3 July 2, 2018 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 familiar with the individual and his career." Id. at 438. 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. Identifying witness information In my May 15th determination, I found that it was unclear why the responsive 911 call could not be redacted to preserve witness anonymity explaining that the Department had not established how the record in its entirety identifies the witness. See SPRI 8/602. In its June 13th response, the Department asserts that "[a] person's voice and audio recording of a 911 call is identifying. In this instance, the 911 recording cannot be redacted since the caller's voice is identifiable." The Department indicates that "the statements made during the course of the 911 call reference the identity of the caller and refer to detailed information." Despite the Department's response, it remains unclear why the responsive 911 call cannot be redacted to preserve witness anonymity as the Department has not established how the record in its entirety identifies the witness. See Antell, 52 Mass. App. Ct. at 248. As indicated above, "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 familiar with the individual and his career." See Globe Newspaper Co., 388 Mass. at 438. Although the Department has indicated it does not possess of a transcript of the 911 call, it may elect to create one in response to this request as a means of altering the record to protect witness anonymity if it may not do so by other methods. See G. L. c. 66, § lO(a)(ii). Prejudice to effective law enforcement In my May 15th determination, I found that despite the Department's indication that the records relate to an ongoing investigation and the information was being withheld to "[safeguard] the unsolved homicide investigation," the response had not specifically addressed how disclosure of the 911 call would compromise investigative efforts as required by Exemption (f). In its June 13th response, the Department indicates that "limited information has been released for the purpose of seeking the public's assistance." It further indicates that "[r ]ele asing

Jenniffer P. Miggliaccio, Esq. SPR18/913 Page 4 July 2, 2018 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 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, § lO(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. 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