John D. Rousseau v. Massachusetts State Police (SPR 20181163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 20, 2018 SPRlS/1163 Alycia DeAngelis, Esq. Staff Counsel Massachusetts State Police 470 Worcester Rd Framingham, MA 01702 Dear Attorney DeAngelis: I have received the petition of John Rousseau appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Rousseau requested records relating to named individuals in the custody of the Commonwealth Fusion Center (Fusion Center). Taking issue with the exemptions claimed by the Department, Mr. Rousseau appealed the Department's May 10, 2018 supplemental response to his February 26, 2018 public records request. The Department provided Mr. Rousseau with another response on July 24, 2018 which Mr. Rousseau appealed to this office. 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, § 1 O(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. G. L. c. 66, § lO(b)(iv). 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

Alycia DeAngelis, Esq. SPR18/1163 Page2 August 20, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (I) 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, 3 71 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 Department explains in the July 24, 2018 response to Mr. Rousseau that it previously listed the responsive records in its custody and demonstrated how the disclosure of all the records would prejudice the possibility of effective law enforcement. The Department states that it "took painstaking care to provide Mr. Rousseau with a detailed catalogue of the responsive records in its possession" in its February 6, 2018 response. Thus, the Department demonstrated it identified the records it has in its possession that relate to the confidential investigative techniques. The Department indicated in its July 24th response that the investigation was conducted with various municipal departments and agencies spanning a period of several years which resulted in intelligence sharing between law enforcement officials. Mr. Rousseau is encouraged to provide the Department with a more detailed request in order to allow the Deprtment to better search for responsive documents. See G. L. c. 66, § 10(a )(i) (requestor must reasonably describe the public record sought). Upon receipt of a clarified request, the Department must provide a written response made in accordance with the Public Records Law, its Access Regulations and 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.

Alycia DeAngelis, Esq. SPR18/1163 Page 3 August 20, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: John Rousseau