Patrick J. Nelligan v. Office of the District Attorney - Essex District (SPR 20181457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records October 16,201 8 SPRl811457 David F. O'Sullivan, Esq. Assistant District Attorney Office of the District Attorney - Essex County 10 Federal Street Salem, MA 01970 Dear Attorney O'Sullivan: I have received the petition of Patrick Nelligan, Esq, of Murphy & Riley, P. C. on behalf of Seven Hills Foundation, Inc. appealing the response of the Methuen Police Department (Department) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, on May 14, 201 8, Attorney Nelligan requested ". . . a copy of all materials in your possession, including but not limited to dispatch logs, notes, ambulance records, citations, notes, statements, medical services rendered, bills, invoices, incident reports, photographs, correspondence, investigation materials, call logs, arrest records, call recordings, and any other documents involving a response to an incident involving [some identified individuals] occurring on or about November 23,20 16 at approximately 3 :00PM at [a specified address]. " The Essex County District Attorney's Office (DAO) provided a response on behalf of the Department on August 7,20 18, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, 5 7(26)(f). Unsatisfied with the DAO's response, Attorney Nelligan petitioned this office and this appeal, SPR1811457, was opened as a result. Purpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Nelligan's purpose in malting the request has no bearing on the public status of any existing responsive records. 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

David F. O'Sullivan, Esq. Page 2 October 16, 20 18 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, 5 10A(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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 1 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. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, 5 10(a), (b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, 5 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The DAO's August 7N;' response In its August 7,2018 response, the DAO indicates that it must invoke the investigatory exemption to the Public Records Law because, "a criminal case is now pending against [one of the identified individuals] arising from these events in which he stands charged with motor vehicle homicide. Commonwealth v. Dickeson, Lawrence District Court 18 18 CR1343. " The DAO claims that "[tlhe exemption aims, inter alia, at 'the avoidance of premature disclosure of the commonwealth's case prior to trial.' Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289 (1979). . ." The Department further directs Attorney Nelligan to obtain public materials from the Lawrence District Court Clerk's Office and informs him to renew his request at the conclusion of the criminal case. 0 Exemption The DAO claims it withheld responsive records pursuant to Exemption (f) of the Public Records Law. 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

David F. O'Sullivan, Esq. Page 3 October 16,201 8 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. Bourias 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, 378 Mass. at 290 n. 18. 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. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, 5 1O (b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . ."); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 5 11. The DAO did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 10(b)(iv); 950 C.M.R. 32.06(3)(~)(4)B. ased on the DAO's response, it is unclear if the DAO possesses all the records reflected in Attorney Nelligan's request. Therefore, the DAO must identify the type of record(s) it has in its possession that it withheld. Further, the DAO's response did not contain the specificity required in a denial of access to records. The DAO provided Attorney Nelligan with the language of Exemption (f) and cited case law, but, it did not explain the reasoning for citing the exemption for withholding the requested records. While the DAO claims a criminal case is pending against one of the identified individual's arising from these events, it is unclear how the responsive records are part of the investigation. Also, the DAO did not explain how disclosing any portion of the responsive records could negatively impact the investigation or reveal confidential investigative techniques unique to the DAO. Neither did the DAO demonstrate how disclosure of any segregable portion of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). See Reinstein,

David F. O'Sullivan, Esq. Page 4 October 16,201 8 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, in his petition for appeal, Attorney Nelligan claims ". . . the motor vehicle accident, [which] occurred in November 23,2016 , was formally investigated over the course of two years, and has concluded. Upon information and believe, after consulting with Mr. Dickeson's criminal defense attorney, . . . the [Department's] records, including body camera footage, audio recordings and investigative report have been produced in their entirety . . . in advance of his criminal trial. . . ." Based on Attorney Nelligan's claims, it is unclear why the Department must withhold these records in their entirety, given the fact that it has already provided portions of the responsive records to Mr. Diclteson's attorney. The Department must clarify this matter. Further, the Department is reminded that as a custodian of records, it has an independent obligation to comply with the Public Records Law in regards to records requests. As such, the Department must also identify the records or categories of records it has in its possession, and explain which exemptions to the Public Records Law it is invoking to withhold such records in its possession. G. L. c. 66, 5 10(a)(ii)-(iv). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L, c. 66, 5 lO(a)(ii). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Department is ordered to provide a response to Attorney Nelligan, 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 kJ Supervisor of Records cc: Patrick Nelligan, Esq. Sergeant James Moore