Dan Glaun v. Massachusetts State Police (SPR 20181989)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records .December 21, 2018 SPRlS/1989 Michael Halpin, Esq. Records Access officer Department of State Police 470 Worcester Road Framingham, MA O1 702 Dear Attorney Halpin: I have received the petition of Dan Glaun of MassLive appealing the response of the 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. Glaun requested "[a]ll payroll records for [an identified Sergeant] from Jan. 1, 2016 through Dec. 31, 2017, including, regular, overtime, 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 Department's response, Mr. Glaun petitioned this office and this appeal, SPRl 8/1989, was opened as a result. Petitions to the Supervisor of Records Mr. Glaun is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses ..." 950 C.M.R. 32.08(1)(g). 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, § 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

Michael Halpin, Esq. SPR18/1989 Page 2 December 21, 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. 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. 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. Glaun] ha[s] requested are the subject of/ connected to an active and ongoing investigation by federal officials. Those officials have confirmed to the Department 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 (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, 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

Michael Halpin, Esq. SPR18/1989 Page 3 December 21, 2018 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Department'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[,] [and 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 supporting information concerning how disclosure would jeopardize, or be detrimental to, the ongoing investigation. Neither has the Department 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 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. Conclusion 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 Department 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 Department 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