Matthew Rocheleau v. Cape & Islands District Attorney's Office (SPR 20181981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 21, 2018 SPR18/1981 Tara L. Miltimore, Esq. Assistant District Attorney Cape and Islands District Attorney's Office 3231 Main Street Barnstable, MA 02630 Dear Attorney Militmore: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Cape and Islands District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested "[a ]ny/all records from any/all investigations tied to the trafficking of illegal narcotics to/from the home/condo of former Oak Bluffs Police Detective ... This request includes but is not limited to prosecution materials, court filings, correspondence, memos, and emails as well as any materials describing arrests, warrants, subpoenas, and affidavits tied to the previously described investigation." The DAO denied his request, claiming that the responsive record is exempt from disclosure pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the DAO's response, Mr. Rocheleau petitioned this office and this appeal was opened as a result. 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, § 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, § 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 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

Tara L. Miltimore, Esq. SPR18/1981 Page 2 December 19, 2018 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, § 1 O(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) The DAO's response indicates "[t]his is a multi-agency, multi-jurisdictional, ongoing investigation. As such, the investigative documents and materials you seek are exempt from disclosure at this time pursuant to G.L.c. 4 §7 (26)(f). Disclosure of such materials, even in redacted form would prejudice investigative efforts and alert suspects and potential witnesses to ongoing investigative efforts and techniques." Mr. Rocheleau in his December 7, 2018, appeal states "the Globe disagrees with the office's claim that the records can be withheld in their entirety. The request asks for information related to an individual . . . whose name and association with this drug trafficking case was publicly disclosed by his former employer the Oak Bluffs Police Department, and, according to Oak Bluffs Police, ... has been cleared in the investigation and is not considered a potential suspect. Therefore, the office should, at a minimum, be able to provide any/all documentation it has pertaining to its investigation into Morse and what led them to clear him as a potential suspect." Mr. Rocheleau further states "Oak Bluffs Police department told the Globe that arrests have already been made in connection with this drug trafficking case, including an individual who was roommates with ... The Globe disagrees with the district attorney office's assertion that records related to arrests that have been made and charges that have been filed against individuals can be withheld." 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

Tara L. Miltimore, Esq. SPR18/1981 Page 3 December 19, 2018 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 Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The DAO's response did not contain the specificity required in a denial of access to public records. Despite the DAO's assertion that the records are related to an active and open investigation and that disclosure of these records would prejudice investigative efforts, the DAO does not indicate which records they have in their possession and how Exemption (f) applies to each category of records. Therefore, I find the DAO has not met its burden to withhold the responsive records under Exemption (f) of the Public Records Law in their entirety. 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). In camera review In order to facilitate a determination as to the applicability of Exemption (f) claim, the DAO may provide this office with un-redacted copies of the responsive record for an in camera inspection. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Tara L. Miltimore, Esq. SPR18/1981 Page 4 December 19, 2018 The DAO may provide this office with a further explanation of its position regarding the applicability of Exemption (f) to the responsive records. However, please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the DAO is ordered to provide Mr. Rocheleau with a supplemental response, including which records they are in possession of and how Exemption (f) applies to each record, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. In the alternative, the DAO may provide this office with un-redacted copies of the responsive records for an in camera inspection without delay. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau