Dan Glaun v. Massachusetts State Police (SPR 20181764)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor of Records November 30, 2018 SPRlS/1764 Michael Halpin, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Dan Glaun of MassLive appealing the response of the Department of State Police (Depatiment) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Glaun requested "[a]ll payroll records for [an identified Trooper] from Jan. 1, 2016 through Dec. 31, 2017, including, regular, ove1iime, union business leave and detail shifts." The Department provided a response denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Depatiment's response, Mr. Glaun petitioned this office and this appeal, SPRI 8/1764, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govermnental records are public records. G. L. c. 66, § 1O A( 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, § I 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § I O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Michael Halpin, Esq. SPR18/1764 Page2 November 30, 2018 The Department's response In its response, the Department, citing the language of Exemption (f) indicates that materials withheld under Exemption (f) "are deemed exempt because their disclosure would likely prejudice the possibility of effective law enforcement and, as a result, such disclosure is not [in] the public interest." The Department also cites the Bougas decision to explain the policy considerations behind the Exemption and indicates that "[t]he documents [Mr. Gimm] ha[s] requested are the subject of/ connected to an active and ongoing investigation by federal officials. Those officials have confirmed to the Depattment that disclosure of the records at issue would jeopardize their investigation ...." The Department also makes reference to a previous Supervisor of Records determination, SPR15/203 (April 27, 2015), where the Department's denial of public records was upheld because of ongoing investigation. 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)(£). 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 Depattment's response did not contain the specificity required in a denial of access to public records. The Department claims that the requested records "are the subject of/ connected to an active and ongoing investigation by federal officials[,] [a nd that] [t]hose officials have confirmed to the Department that disclosure of the records at issue would jeopardize their investigation." However, the Department did not provide suppotting information concerning how disclosure would jeopardize or be detrimental to the ongoing investigation. Neither has the Depattment demonstrated that disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public

Michael Halpin, Esq. SPR18/1764 Page 3 November 30, 2018 interest" as required to withhold records under Exemption (f). Therefore, I find the Department has not met its burden to show how Exemption (f). applies to withhold the requested records. Co11cl11sio11 Given that the Department did not meet its burden to explain how Exemption (f) applies to the records, the requested records may not be withheld. Accordingly, the Depmiment is ordered to review the records, redact where necessary, and provide Mr. Glaun with responsive records, 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. The Depaiiment may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Dan Glaun