John F. Carr v. Massachusetts State Police (SPR 20182086)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 8, 2019 SPR18/2086 Michael B. Halpin, Esq. Primary Records Access Officer Department of State Police 4 70 Worcester Road Framingham, MA O1 702 Dear Attorney Halpin: I have received the petition of John F. Carr appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Carr requested a copy of "the police accident investigation for a fatal accident at the intersection of Lexington Street and Sycamore Street in Belmont at approximately 8:25 am on August 28, 2018." In a December 14, 2018 response, the Department denied Mr. Carr's request, in its entirety, under Exemption (f) of the Public Records Law. As a result of the Department's denial, Mr. Carr petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § 1 OA( 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) (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 ... "); 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). 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 B. Halpin, Esq. SPR18/2086 Page 2 January 8, 2019 The Department's December 14, 2018 response In its December 14th response, Department Staff Counsel Siobhan Kelly informed Mr. Carr, "[p ]lease be advised that, according to information provided to this office, this matter is the subject of an active criminal prosecution by the Middlesex District Attorney's Office. As a result, the report(s) you seek are not subject to public disclosure at this time pursuant to G. L. c. 4, § 7, cl. 26 (f)." Exemption (I) Exemption (0 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. 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 id. at 289-290. The Department's response merely cites Exemption (f) to withhold records related to the August 18, 2018 incident without the specificity to withhold the record(s). The Department cites a 2015 determination of the Supervisor to support withholding the record(s). The Department has not demonstrated how disclosure of any the records, even in a redacted format, "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). Furthermore, the Department's response asserts that the matter is the subject of an active prosecution by the Middlesex District Attorney, and referred Mr. Carr to the District Attorney to make a request for the records. I find that the Department has not met its burden under the Public Records Law to withhold records under Exemption (f).

Michael B. Halpin, Esq. SPR18/2086 Page 2 January 8, 2019 Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, §IO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify how many and what type of record(s) it has in its possession that the Department withheld. Conclusion Accordingly, the Department is ordered to provide Mr. Carr with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, ~~ Supervisor of Records cc: John F. Carr